                        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


                                        2
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,


      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?”


                                         3
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,


                                         4
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




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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

      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.


                                          6
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


                                         7
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


                                           8
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.


                                          9
          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.


                                           10
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




                                         11
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


      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.


                                        12
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


                                         13
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


                                            14
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.

      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.


                                         15
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.




                                         16
      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.


                                         17
      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


                                           18
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


                                         19
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


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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

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


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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


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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


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