Affirmed and Memorandum Opinion filed January 31, 2012.




                                        In The

                      Fourteenth Court of Appeals

                                 NO. 14-10-00765-CV

                             DARYL AARON, Appellant

                                          V.

                           KIMBERLY AARON, Appellee

                      On Appeal from the 312th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2009-03689



                        MEMORANDUM OPINION

      Appellant Daryl Aaron appeals the property division incident to the divorce
between himself and appellee Kimberly Aaron. Daryl challenges the legal and factual
sufficiency of the evidence supporting certain findings of fact and conclusions of law
made by the trial court. We affirm.

                                      BACKGROUND

      Daryl and Kimberly began living together in May 28, 1999, when they moved into
a house known as the ―Green Top Residence.‖ Kimberly‘s three minor children from a
prior marriage lived with Daryl and Kimberly.       Daryl and Kimberly married on
December 15, 2001, and separated on July 31, 2008. There were no children as result of
the marriage.

       Daryl filed a petition for divorce on January 23, 2009, and Kimberly filed a cross-
petition for divorce on January 18, 2010. The trial court conducted a bench trial on
February 1, 2, and 22, 2010; March 9, 2010; and April 9, 2010. On April 14, 2010, the
trial court provided its findings and its ruling. On May 4, 2010, Daryl filed a motion to
modify, correct, and/or reform the judgment. On May 14, 2010, the trial court entered
the final decree of divorce. On June 14, 2010, Daryl filed a motion for new trial, which
the trial court denied on July 14, 2010.

       On June 3, 2010, Daryl requested findings of fact and conclusions of law. When
the trial court did not enter findings of fact and conclusions of law, Daryl timely filed a
notice of past due findings of fact and conclusions of law on July 2, 2010. Daryl filed his
notice of appeal on August 11, 2010. On December 30, 2010, the trial court issued its
findings of fact and conclusions of law. On January 26, 2011, Daryl filed a motion to
extend time to file his request for amended or additional findings of fact and conclusions
of law, which the trial court granted on January 28, 2011, extending the time to file the
request to January 31, 2011. On January 28, 2011, Daryl filed a request for additional
and/or amended findings of fact. The trial court never explicitly ruled on Daryl‘s request.

                                  STANDARD OF REVIEW

       Findings of fact entered in a case tried to the court have the same force and dignity
as a jury‘s verdict on jury questions. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.
1994). We apply the same standards in reviewing the legal and factual sufficiency of the
evidence supporting the trial court‘s fact findings as we do when reviewing the legal and
factual sufficiency of the evidence supporting a jury‘s answer to a jury question. Ortiz v.
Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam).

       In reviewing the legal sufficiency of the evidence, we view the evidence in the
light most favorable to the fact finding, crediting favorable evidence if reasonable
                                          2
persons could, and disregarding contrary evidence unless reasonable persons could not.
City of Keller v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). We may not sustain a
legal sufficiency, or ―no evidence‖ point unless the record demonstrates that: (1) there is
a complete absence of a vital fact; (2) the court is barred by the rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact; (3) the
evidence to prove a vital fact is no more than a scintilla; or (4) the evidence established
conclusively the opposite of the vital fact. Id. at 810.

       To evaluate the factual sufficiency of the evidence to support a finding, we
consider all the evidence and will set aside the finding only if the evidence supporting the
finding is so weak or so against the overwhelming weight of the evidence that the finding
is clearly wrong and unjust. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07
(Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

       When an appellant complains of the legal sufficiency of the evidence supporting
an adverse finding on which the appellant had the burden of proof, he must show the
evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). In reviewing a ―matter of
law‖ challenge, we must first examine the record for evidence supporting the finding, and
then examine the entire record to determine if the contrary proposition is established as a
matter of law. Id. We sustain the issue only if the contrary position is conclusively
established. Id.

       When an appellant attacks the factual sufficiency of an adverse finding, he must
demonstrate the adverse finding is against the great weight and preponderance of the
evidence. Id. We must consider and weigh all the evidence and can set aside the finding
only if the evidence is so weak or if the finding is so against the great weight and
preponderance of the evidence that it is clearly wrong and unjust. Id.



                                              3
       We review the trial court‘s conclusions of law de novo. Busch v. Hudson &
Keyse, LLC, 312 S.W.3d 294, 299 (Tex. App.—Houston [14th Dist.] 2010, no pet.). We
review conclusions of law to determine whether the conclusions drawn from the facts are
correct. Zagorski v. Zagorski, 116 S.W.3d 309, 314 (Tex. App.—Houston [14th Dist.]
2003, pet. denied) (op. on reh‘g). Even if we determine that the trial court made an
erroneous conclusion of law, we will not reverse if the trial court rendered the proper
judgment. Busch, 312 S.W.3d at 299. We uphold conclusions of law if the judgment can
be sustained on any legal theory supported by the evidence. Id.

       We review a trial court‘s division of community property for an abuse of
discretion. Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981); Quijano v. Quijano, 347
S.W.3d 345, 349 (Tex. App.—Houston [14th Dist.] 2011, no pet.). To determine whether
the trial court abused its discretion, we must decide whether the trial court acted without
reference to any guiding rules or principles, i.e., whether the act was arbitrary or
unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 240–41 (Tex.
1985). We must indulge every reasonable presumption in favor of the trial court‘s proper
exercise of its discretion in dividing the marital property. Mandell v. Mandell, 310
S.W.3d 531, 539 (Tex. App.—Fort Worth 2010, pet. denied). Generally, there is no
abuse of discretion where some evidence of a substantive and probative character exists
to support the trial court‘s decision. Swaab v. Swaab, 282 S.W.3d 519, 525 (Tex. App.—
Houston [14th Dist.] 2008, pet. dism‘d w.o.j.).

       In a divorce decree, the trial court ―shall order a division of the estate of the parties
in a manner that the court deems just and right, having due regard for the rights of each
party and any children of the marriage.‖ TEX. FAM. CODE ANN. § 7.001 (West 2006).
The trial court‘s ultimate division need not be equal as long as it is equitable and the
circumstances justify a disproportionate division. Phillips v. Phillips, 296 S.W.3d 656,
678 (Tex. App.—El Paso 2009, pet. denied).



                                               4
                                         ANALYSIS

       By this appeal, Daryl challenges the trial court‘s property division, urging
generally that the trial court erred in failing to properly treat certain property as separate
property; failing to credit community debts; and determining that Daryl committed a
fraud on the community. Kimberly responds that the trial court‘s division is supported by
legally and factually sufficient evidence and, in any event, the appeal should be dismissed
for Daryl‘s acceptance of benefits from the decree.

                                  Acceptance of Benefits

       Kimberly urges that the appeal should be dismissed in its entirety because Daryl
has voluntarily accepted the benefits of the decree and is therefore estopped to appeal that
same decree. It is true that a party may not take inconsistent positions with respect to a
judgment; instead, he must either treat the judgment as correct to accept a benefit from it
or treat the judgment as incorrect to appeal it. See Waite v. Waite, 150 S.W.3d 797, 803
(Tex. App.—Houston [14th Dist.] 2004, pet. denied). There are narrow exceptions to the
doctrine.   For example, where the appellant accepts only benefits that the appellee
concedes or must concede are due, the doctrine does not estop appellant to appeal the
judgment. See Carle v. Carle, 234 S.W.2d 1002, 1004 (Tex. 1951). The appellee has the
burden to establish acceptance of benefits. Waite, 150 at 803.

       In this case, Kimberly points not to evidence, but to remarks from Daryl‘s counsel
during a hearing. Specifically, counsel indicated to the trial court regarding Daryl‘s
ability to sell his Dodge truck that she ―think[s] it‘s already gone.‖         Kimberly has
presented no evidence that the truck or any other divided property has been sold. The
comments of counsel in this case are insufficient to sustain Kimberly‘s burden on
acceptance of benefits. As Kimberly has failed to establish acceptance of benefits, we
need not determine whether any of the exceptions to the doctrine apply.             We deny
Kimberly‘s request to dismiss the appeal.


                                              5
                                 Green Top Residence

      In his first issue, Daryl contends that the evidence is legally and factually
insufficient to support the trial court‘s findings of fact and conclusions of law that the
Green Top residence had been jointly acquired by Daryl and Kimberly prior to marriage
and therefore the award of an undivided one-half interest as separate property to
Kimberly was error. The Green Top Residence was acquired on May 28, 1999, prior to
Daryl and Kimberly‘s marriage. Daryl and Kimberly planned to purchase the Green Top
Residence together and, on April 23, 1999, they signed an earnest money contract for the
purchase of the home. However, Kimberly learned that her credit was poor and that they
could purchase the home for a lower interest rate if the home were purchased in Daryl‘s
name alone.    Daryl alone signed a second earnest money contract and the closing
documents were in Daryl‘s name alone.

      Kimberly testified that, even though the home was to be purchased in Daryl‘s
name alone, they still had an agreement to be joint owners of the Green Top Residence.
Because Kimberly was not able to contribute as much towards the down payment as
Daryl, Daryl paid a down payment of $6,700. An additional $1,366.04 was required for
closing costs. The parties dispute who paid the additional $1,366.04. The $1,366.04
check showed Daryl as the remittur, but Kimberly testified that she provided the funds,
and Daryl told her to put his name as remittur on the check because all the closing
documents were in his name alone. To make up for Daryl‘s having paid more of the
down payment on the house, Kimberly paid the mortgage and utilities for the first six
months while Daryl was selling a house he had owned previously. After Daryl had sold
his house, he started making the Green Top mortgage payments, while Kimberly paid for
the food and the utilities. Kimberly testified that the amount she paid monthly for food
and utilities would be about the same as the monthly mortgage payment. Daryl, on the




                                            6
other hand, argued that, because he acquired the Green Top residence prior to marriage, it
is his separate property,1 and the trial court was prohibited from dividing that property.2

       The trial court found that, even after Daryl and Kimberly had decided that the
house would be purchased in Daryl‘s name alone, they purchased the Green Top
Residence jointly and intended to be joint owners of the house, and that Kimberly paid
one-half of the down payment and closing costs. The trial court concluded that Daryl and
Kimberly jointly owned the Green Top Residence as tenants in common, each owning a
one-half, undivided separate property interest in the house.

       Whether property is separate or community is determined by its character at the
inception of the party‘s title. Sharma v. Routh, 302 S.W.3d 355, 360 (Tex. App.—
Houston [14th Dist.] 2009, no pet.) (op. on reh‘g). Inception of title occurs when a party
first has a right of claim to the property by virtue of which title is finally vested. Id.

       In Harrington v. Harrington, the court of appeals affirmed the trial court‘s finding
that the husband and wife owned a home, which they purchased prior to marriage, as
tenants in common pursuant to an oral partnership. See 742 S.W.2d 722, 725 (Tex.
App.—Houston [1st Dist.] 1987, no pet.). The trial court found that the parties looked for
a home, agreed on the choice of a home, and both parties attended the closing. Id. at 723.
The trial court further found that, at the time of the purchase of the home, that parties
agreed that title to the property would be taken in the appellant‘s name, for credit
purposes and convenience only, but intended that the residence be owned, used, and
enjoyed jointly. Id. at 723–24.

       Here, it is undisputed that the parties initially agreed to buy a home together.
There is evidence that the parties looked for house together and chose this house so that
Kimberly‘s children could continue to attend the same schools. There is also evidence

       1
           See TEX. CONST. art. XVI, § 15; TEX. FAM. CODE ANN. § 3.001(1) (West 2006).
       2
         See Cameron v. Cameron, 641 S.W.2d 210, 215 (Tex. 1982); Graves v. Tomlinson, 329 S.W.3d
128, 156 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
                                                  7
that the parties agreed that the home would be purchased in Daryl‘s name only due to
Kimberly‘s poor credit, and that the parties had agreed on how to handle the payment of
the mortgage and expenses. Thus, there is evidence to support the trial court‘s finding
that Daryl and Kimberly owned the Green Top Residence as tenants in common.3 We
overrule Daryl‘s first issue.

        In his second issue, Daryl argues that even if we uphold the trial court‘s
determination that the parties jointly owned the Green Top residence, then the trial court
erred in ordering (1) partition by sale of the property, (2) a division of the sale proceeds
from the property based on the date of divorce, and (3) Daryl to bear all expenses relating
to the property following the date of the divorce. Daryl also asserts that the trial court
mischaracterized the property debt and other expenses as community debt.

        However, the parties sold the Green Top Residence March 30, 2011, pursuant to
temporary orders while the appeal was pending in this court. An issue becomes moot if a
controversy ceases to exist or the parties lack a legally cognizable interest in the outcome.
Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005); Bd. of Adjustment of City
San Antonio v. Wende, 92 S.W.3d 424, 427 (Tex. 2002); see also In re Kellogg Brown &
Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005) (orig. proceeding) (―A case becomes moot if
a controversy ceases to exist at any stage of the proceedings, including the appeal.‖).
Because the parties sold the property during the pendency of this appeal, this issue is
moot because there are no further issues regarding the potential sale or partition of the
property or any issue regarding payment of the mortgage and maintenance expenses
associated with the ownership of the property.4 We overrule Daryl‘s second issue.


        3
          We disagree with Daryl‘s assertion that the statute of frauds required the agreement to purchase
the Green Top Residence be in writing. An agreement for the joint acquisition of land is not a contract
for the sale of land and, therefore, is not subject to the statute of frauds. Williams v. Gaines, 943 S.W.2d
185, 190 (Tex. App.—Amarillo 1997, writ denied) (op. on reh‘g).
        4
          Daryl argues that the division of proceeds issue is not moot because the property was not
partitioned correctly, i.e., the trial court divided the house as if it were community property. However,
the net proceeds from the sale of the house were deposited into the registry of the court, and Kimberly
                                                     8
                                       Honeywell 401K Loan

        In his third issue, Daryl argues that the evidence is legally and factually
insufficient to support the trial court‘s finding of fact and conclusion of law that he
misappropriated $40,000 from his Honeywell 401K account.                         Daryl had a 401K
retirement account with his employer, Honeywell, where he had been employed since
1994. In October 2007, Daryl borrowed $50,000 from his Honeywell 401K. Daryl
testified that he did not need Kimberly‘s permission to take out the loan, but had a
conversation with her about the loan and that she had no objection to taking out the loan.
Kimberly, however, testified that Daryl never discussed the $50,000 loan with her, and
the first time she learned of the loan was during the divorce. Kimberly testified that she
did not know how Daryl had spent the loan proceeds. At the time of trial, the balance on
the loan was $40,000.

        The trial court found that Daryl withdrew $50,000 from his Honeywell 401K
without Kimberly‘s knowledge and used the funds for his own purposes, and Daryl owed
$40,000 to the community portion of the Honeywell 401K account. In its conclusions of
law, the trial court determined that Daryl ―misappropriated‖ $40,000 from the
community.

        Waste occurs when one spouse, dishonestly or purposefully with the intent to
deceive, deprives the community estate of assets to the detriment of the other spouse.
Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). Waste is one of the non-
exclusive factors that a district court may consider in its ―just and right‖ division of
community property. Id. at 588.

        Fraud on the community is a judicially created concept based on the theory of
constructive fraud and applied where is a breach of a legal or equitable duty violating the
fiduciary relationship existing between spouses. Knight v. Knight, 301 S.W.3d 723, 731

conceded on appeal that she gets one-half of the proceeds. At oral argument, Daryl agreed that there is no
controversy if the proceeds are ―net‖ and are divided equally.
                                                    9
(Tex. App.—Houston [14th Dist.] 2009, no pet.); Zieba v. Martin, 928 S.W.2d 782, 789
(Tex. App.—Houston [14th Dist.] 1996, no writ) (op. on reh‘g). A fiduciary duty exists
between a husband and a wife as to the community property controlled by each spouse.
Knight, 301 S.W.3d at 731; Zieba, 928 S.W.2d at 789. Any such conduct in the marital
relationship is termed fraud on the community because, although not actually fraudulent,
it has all the consequences and legal effects of actual fraud in that such conduct tends to
deceive the other spouse or violate confidences that exist as a result of the marriage.
Knight, 301 S.W.3d at 731; Zieba, 928 S.W.2d at 789. A presumption of constructive
fraud arises where one spouse disposes of the other spouse‘s one-half interest in
community property without the other‘s knowledge or consent. Knight, 301 S.W.3d at
731; Zieba, 928 S.W.2d at 789. In that circumstance, the burden of proof to show
fairness in disposing of community assets is upon the disposing spouse. Knight, 301
S.W.3d at 731; Zieba, 928 S.W.2d at 789.          The court may consider fraud on the
community in the division of the estate and may justify an unequal division of the
property. Schlueter, 975 S.W.2d at 588.

       Acknowledging that it was his burden to disclose how the money was spent, Daryl
avers that he did not give the money away to anyone, but, instead, the community
benefitted from ―[e]very penny‖ of the loan. Daryl contends that he used the loan
proceeds generally to pay community debts, finance community purchases, and pay
community bills. Daryl also asserts that he used $25,000 of the $50,000 loan to pay off a
$25,000 community debt on the purchase of a ―Harris FloteBoat.‖ Daryl also claims that
he put some of the money into an Ameritrade account, ―possibly‖ funded some
community vacations, and made $15,000 worth of repairs and improvements to the Green
Top Residence.

       When asked what debts he paid off, Daryl testified that he paid off the $25,000
loan on the boat, but further stated:

       I‘m not exactly sure where the rest of it went, but it would have went in
       investments, it would have went on other loans. I didn‘t trace all — every
                                          10
       penny of it. Some of it was probably used for vacations. I don‘t really
       know. But I didn‘t take it off [sic], I didn‘t give to people.

       With regard to paying for vacations, however, Daryl testified at deposition that
Kimberly paid for their vacations because that was the way she liked to spend her money.
Daryl further testified as to how he spent the loan proceeds:

       Q.    Okay. And, in fact, you did mention that you thought you used
       25,000 of pay off the boat, correct?

       A.     Yes.

       Q.     An did you also put some of it in the Ameritrade account which you
       stipulate is community property?

       A.     Yes. And I also —

                                      *      *     *

       Q.     And that was just conjecture because you really can‘t remember
       what you did with the other 25,000 of the 50 after used 50 (sic) to pay the
       boat, correct?

       A.     Right. And I could have spent some on vacation. I don‘t recall.

Daryl further testified that he put new Hardy Plank on the entire house to repair the siding
that the dogs tore off:

       Q.    Mr. Aaron, how much siding did $15,000 buy? How much of the
       house did you cover in siding?

       A.     I put Hardy Plank siding on the whole house and had it repainted and
       had the gutters done. And insurance covered a little bit of the roof for hail
       damage, but some of that was roof.

                                      *      *     *

       Q.     But repairing the wood that the dogs chewed would not have
       required you to have to Hardy Plank the entire house and put on new
       gutters, would it?

       A.     No.

                                            11
                                        *      *      *

       Q.     So, you‘re contending that 15,000 of the 50,000 that you took out of
       the community funds of the Honeywell retirement [account] was [sic] spent
       to improve and enhance your claimed separate property house?

       A.      Well, I wouldn‘t characterize it completely like that.         It was to
       repair.

       Daryl‘s testimony shows that he cannot account for how he spent the loan
proceeds and cannot demonstrate that that the community estate benefitted from the
expenditure of the loan proceeds. The trial court‘s conclusion that Daryl has not met his
burden to show how he spent the loan proceeds is supported in this record and, therefore,
we overrule Daryl‘s third issue.

                                    Keystone Raptor RV

       In his fourth issue, Daryl argues that the evidence is legally and factually
insufficient to support the trial court‘s finding and conclusion that there was no
outstanding loan on the Keystone Raptor RV. The parties disputed whether there was an
outstanding loan a Keystone Raptor RV purchased on November 5, 2007. The entire
purchase was financed. Relying on his inventory, Daryl asserted that a $37,444.88
balance on the RV exists. Daryl argues that, due to a mistake made when the title was
issued on December 10, 2007, no lien was shown on the title. A letter dated December
16, 2009, from GEMB Lending states that ―a clerical error was made to your title. Your
state requires that the incorrect title be surrendered prior to a corrected title being issued.‖

       Kimberly testified that Daryl gave her a phone number to call to obtain the payoff
information. However, when Kimberly called the phone number, the person she spoke to
told her that information could only be given to Daryl. Kimberly issued a subpoena
duces tecum to Daryl to bring the current payoff amount for the RV on the first day of
trial—February 1, 2010. Kimberly testified that Daryl produced a document, on April 1,
2010, that had the payoff amount. On the last day of trial—April 9, 2010—Daryl
attempted to introduce into evidence a document purportedly disclosing the payoff
                                       12
amount on the RV loan. However, the trial court stated, ―Well, he had plenty of time to
provide that before today,‖ and the evidence was not admitted into evidence at trial.

         The only evidence to which Daryl can cite in support of his contention that a
balance exists on the RV is his own inventory. The title showing that the RV has no liens
against it is some evidence that no loan balance existed on the RV. We overrule Daryl‘s
fourth issue.

                               Division of Community Estate

         In his fifth issue, Daryl argues that the decree does not conform to its own
provisions that the community estate was apportioned 47.2% to Daryl and 52.8% to
Kimberly, and the evidence is legally and factually insufficient to support the trial court‘s
findings of fact and conclusions of regarding such division. Daryl asserts the division
was actually 69.5% to Kimberly and 30.5% to Daryl because the decree did not include
the outstanding $41,423.94 balance on the Honeywell 401(k) or the outstanding
$37,444.88 balance on the RV in the valuation of the community estate. Instead, the trial
court assessed the $41,423.94 and $37,444.88 loan balances to Daryl, resulting in Daryl
receiving only a net estate in the amount of $76,211.18 instead of the $155,080.00
amount stated in the decree.

         Reasserting his arguments in his third and fourth issues, Daryl argues that the trial
court did not properly include in its calculation the value of the community estate: (1) the
outstanding balance of $41,423.94 due on the Honeywell 401(k) loan as of December 31,
2009, and (2) the outstanding balance of $37,444.88 due on the RV loan. Because we
have determined that the evidence is legally and factually sufficient to support the trial
court‘s findings on the Honeywell 401(k) loan and the RV loan, we overrule Daryl‘s fifth
issue.




                                              13
                                   Finding on Credibility

       In his sixth issue, Daryl argues that the evidence is factually insufficient to support
the trial court‘s finding of fact that he was not a credible witness. ―[W]e do not ‗set
aside‘ the trial court‘s findings of credibility but, indeed, as the law requires on a factual
sufficiency issue, review all the evidence, giving due deference to [the] fact finder.‖
Rusk v. Rusk, 5 S.W.3d 299, 304 n.5 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)
(emphasis in original).

       The evidence showed that Daryl had taken a $50,000 loan on this Honeywell
401K without Kimberly‘s knowledge and could not establish how he spent the money.
Daryl claimed that he purchased the Green Top Residence as his separate property, while
the evidence showed that he and Kimberly had an agreement to purchase the home
jointly. The trial court resolved these issues against Daryl. In a bench trial, the trial court
is the sole judge of the credibility of the witnesses, assigns the weight to be given their
testimony, may accept or reject all or any part of their testimony, and resolves any
conflicts or inconsistencies in the testimony. Rich v. Olah, 274 S.W.3d 878, 884 (Tex.
App.—Dallas 2008, no pet.). The court of appeals may not pass upon the credibility of
the witnesses or substitute its judgment for that of the trier of fact, even if a different
answer could be reached upon review of the evidence.             Id.   We conclude that the
evidence is factually sufficient to support the trial court‘s finding that Daryl was not a
credible witness. We overrule Daryl‘s sixth issue.

            Request for Additional Findings of Fact & Conclusions of Law

       In his seventh issue, Daryl argues that the trial court erred in failing to make
additional and/or amended findings of fact and conclusions of law and in refusing to
grant his motion for modification and motion for new trial. Daryl reasserts arguments
made in his other issues as a basis for this issue.

       Rule 298 of the Texas Rules of Civil Procedure permits a party to request specific
additional or amended findings or conclusions ―after the court files original findings of
                                          14
fact and conclusions of law.‖ TEX. R. CIV. P. 298. A trial court is not required to make
additional findings of fact and conclusions of law that are unsupported in record,
evidentiary, or contrary to other previous findings. Rich, 274 S.W.3d at 886; Buckeye
Retirement Co., LLC, Ltd. v. Bank of Am., N.A., 239 S.W.3d 394, 402 (Tex. App.—Dallas
2007, no pet.); see also Collins v. Walker, 341 S.W.3d 570, 574–75 (Tex. App.—Houston
[14th Dist.] 2011, no pet.) (op. on reh‘g) (―A trial court has no duty to make additional or
amended findings that are unnecessary or contrary to its judgment; a trial court is only
required to make additional findings and conclusions that are appropriate. . . . [T]he trial
court is not required to make additional findings which conflict with the original
findings.‖).

       A review of Daryl‘s requested findings of fact and conclusions of law reflects that
they are related to evidentiary matters or matters contrary to the trial court‘s express
findings. Therefore, the trial court did not err by refusing to Daryl‘s requested findings
of fact and conclusions of law. See Collins, 341 S.W.3d at 575 (holding that the trial
court was not required to adopt requested additional findings and conclusions because
they were contrary to the judgment); Buckeye Retirement Co., LLC, Ltd., 239 S.W.3d at
402 (holding that additional finding of fact would not have been appropriate because they
were on an evidentiary issue and would have been unsupported by the record).
Moreover, having overruled Daryl‘s other issues, we do not find that the trial court erred
by refusing to grant his motion to modify the judgment or denying his motion for new
trial. We overrule Daryl‘s seventh issue.

       Accordingly, we affirm the trial court‘s judgment.


                                            /s/    Sharon McCally
                                                   Justice



Panel consists of Justices Brown, Boyce, and McCally.

                                              15
