CourtListener opinion 4063996

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ACCEPTED
 06-15-00041-CV
 SIXTH COURT OF APPEALS
 TEXARKANA, TEXAS
 11/17/2015 12:17:02 AM
 DEBBIE AUTREY
 CLERK

 CASE NO. 06-15-0041-CV

 IN THE COURT OF APPEALS FOR THE FILED IN
 6th COURT OF APPEALS
 SIXTH APPELLATE DISTRICT OF TEXAS TEXARKANA, TEXAS
 AT TEXARKANA, TEXAS 11/17/2015 9:00:00 AM
 DEBBIE AUTREY
 Clerk
 GEARY H. LEE, APPELLANT

 VS.

 ELIZABETH DEANNE HOLOUBEK, f/k/a ELIZABETH DEANNE LEE,
 APPELLEE

 Appeal from the County Court at Law of

 Rusk County, Texas

 Cause No. 2012-09-449 CCL

 BRIEF OF APPELLANT

 JOE SHUMATE
 State Bar No. 18327500
 JAMES J. ROSENTHAL
 State Bar No. 24088801
 107 North Main Street
 P. O. Box 1915
 Henderson, Texas 75653-1915
 (903) 657-1416
 (903) 655-8211
 Attorney for Appellant

ORAL ARGUMENT REQUESTED
 CERTIFICATE OF INTERESTED PARTIES

 The undersigned counsel of record for Appellant certifies that the following

listed persons have an interest in the outcome of this case. These representations are

made so that this Court may evaluate possible disqualifications or recusal.

APPELLANT COUNSEL

Geary H. Lee, Appellant Joe Shumate (Lead Appellate Counsel)
 State Bar No. 18327500
 James J. Rosenthal (Counsel on the Brief)
 State Bar No. 24088801
 107 North Main Street
 P. O. Box 1915
 Henderson, Texas 75653
 Tel: (903) 657-1416
 Fax: (903) 655-8211

APPELLEE COUNSEL

Elizabeth Deanne Holubek Clay Wilder
 State Bar No. 21462500
 200 N. Main Street
 Henderson, Texas 75652
 Phone: (903) 657-0561
 Fax: (903) 657-5088

TRIAL COURT JUDGE

Hon. Chad W. Dean
Rusk County Courthouse
115 North Main Street, Ste. 201
Henderson, Texas 75652
Tel: (903) 657-0344

 -ii-
 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STANDARD OF REVIEW .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

 1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING APPELLEE
 A CONTINGENT ATTORNEY FEE IN A DOMESTIC RELATIONS CASE.

 2. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
 EVIDENCE, TO SUSTAIN THE TRIAL COURT'S FINDING THAT THE
 ATTORNEY'S FEES AWARDED TO APPELLEE IN THE AMOUNT OF
 $30,774.27 WERE REASONABLE AND NECESSARY.

 3. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
 EVIDENCE, TO SUSTAIN THE TRIAL COURT'S FINDING THAT RETIREMENT
 FUNDS AWARDABLE TO APPELLEE WOULD HAVE GROWN IN THE AMOUNT
 OF $29,660.48 BETWEEN 2006 AND 2015.

 4. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
 EVIDENCE, TO SUSTAIN THE TRIAL COURT'S FINDING THAT A
 CONSTRUCTIVE TRUST (OR OTHER LIEN) SHOULD ATTACH TO THE
 APPELLANT'S FUNDS ON DEPOSIT WITH EDWARD JONES.

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

SUMMARY OF ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

 -iii-
 PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

 -iv-
 INDEX OF AUTHORITIES

Cases: Pages

Argonaut Ins. Co. v. ABC Steel Products,
582 S.W.2d 883 (Tex.Civ.App.—Texarkana 1979, writ ref'd n.r.e.). . . . . . . . . . . 27

Arthur Anderson & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex.1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736
(Tex.App.–San Antonio 2007, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Brent v. Field, 275 S.W.3d 611, 621 (Tex. App.-Amarillo 2008, no pet.) .. . . 5, 20

Brockie v. Webb, 244 S.W.3d 905, 909 -910 (Tex.App.–Dallas,2008) . . . . . . . . . 5

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res.,
532 U.S. 598, 602, 121 S. Ct. 1835, 149 L. Ed. 2d 855 (2001) . . . . . . . . . . . . . . 21

Burnside Air Conditioning v. T.S. Young, 113 S.W.3d 889, 897–98
(Tex.App.-Dallas 2003, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

Castle Texas Prod. Ltd. P'ship v. Long Trusts,
134 S.W.3d 267, 278-79 (Tex. App.—Tyler 2003, pet. denied). . . . . . . . . . . . . . 27

Day v. Day, 603 S.W.2d 213, 215 (Tex., 1980) .. . . . . . . . . . . . . . . . . . . . . . . . . . 24

Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977) . . . . . . . . . . . . . . . . . 2

Giles v. Cardenas, 697 S.W.2d 422, 429-430 (Tex.App. 4 Dist.,1985). . . . . . . . . 25

Hays & Martin, L.L.P. v. Ubinas–Brache, M.D.,
192 S.W.3d 631, 636 (Tex.App.-Dallas 2006, pet. denied) .. . . . . . . . . . . . . . . . . 27

Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex.1996). . . . . . . . . . . . . . . . . . . . . 2

 -v-
 In re Wells, 294 Fed. Appx. 841, 845 (5th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . 25

Kostelnik v. Roberts, 680 S.W.2d 532, 534
(Tex. App.—Corpus Christi 1984), writ refused NRE (Jan. 16, 1985) .. . . . . . . . 34

Landram v. Robertson, 195 S.W.2d 170, 174
(Tex. Civ. App.—San Antonio 1946), writ refused NRE. .. . . . . . . . . . . . . . . . . . 34

Material P'ships, Inc. v. Ventura, 102 S.W.3d 252, 257
(Tex.App.– Houston [14th Dist.] 2003, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . 3

Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S.W.2d 706, 711, 40 Tex. Sup. Ct. J. 846 (Tex. 1997). . . . . . . . . . . . . . . . . . . 3

Murff v. Murff, 615 S.W.2d 696 (Tex. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Patel v. Kuciemba, 82 S.W.3d 589, 594
(Tex. App.—Corpus Christi 2002, pet. denied) .. . . . . . . . . . . . . . . . . . . . . . . . . . 31

Plas-Tex, Inc. v. U.S. Steel Corp.,
772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex. 1989). . . . . . . . . . . . . . . . . . . 3

Pool v. Ford Motor Co.,
715 S.W.2d 629, 635, 29 Tex. Sup. Ct. J. 301 (Tex. 1986). . . . . . . . . . . . . . . . . . . 4

Rankin v. Naftalis, 557 S.W.2d 940, 944 (Tex. 1977). . . . . . . . . . . . . . . . . . . . . . 34

Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex.1998) . . . . . . . . . . . . . . . . . . . . 2

Sherrick v. Wyland, 14 Tex. Civ. App. 299,
37 S.W. 345, 345 (Tex. Civ. App. 1896) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Smith v. Smith, 22 S.W.3d 140, 143–44
(Tex.App.-Houston [14th Dist.] 2000, no pet.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Southland Life Ins. Co. v. Norton, 5 S.W.2d 767
(Tex.Comm'n App.1928, holding approved). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

 -vi-
 Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.– El Paso 2000, no pet.) . . . . . . . . . . . . . 2

Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006) .. . . . 20

Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). . . . . . . . . . . . . 3

Wittau v. Storie, 145 S.W.3d 732, 735
(Tex. App.—Fort Worth 2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25

Wm. Cameron & Co. v. Am. Sur. Co. of N.Y.,
55 S.W.2d 1032, 1035 (Tex. Comm'n App. 1932, judgm't adopted) . . . . . . . . . . 20

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

Wuagneux Builders, Inc. v. Candlewood Builders, Inc.,
651 S.W.2d 919, 922 -923 (Tex.App. 2 Dist.,1983) . . . . . . . . . . . . . . . . . . . . . . . 27

Statutes and Rules: Pages

1. TX ST RPC Rule 1.04.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

2. TX R EVID Rule 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

3. TX R EVID Rule 802. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

4. TX R EVID Rule 803(17). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

5. Family Code § 9.205. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

 -vii-
 STATEMENT OF THE CASE

 This is an appeal from a Judgment entered upon Petitioner's Fourth Amended

Petition for Division of Property Not Divided on Divorce, entered on May 14, 2015,

by the County Court at Law of Rusk County, Texas, the Honorable Chad W. Dean,

presiding. 1 CR 41-42. Petitioner/Appellee originally filed this instant underlying

action on or about September 13, 2012. 1 CR 5-13. Trial was conducted on April 30,

2015. 1 CR 41; 1 RR 1. The trial court made its Findings of Fact and Conclusions

of Law in response to Respondent/Appellant's request on or about July 7, 2015.

Respondent/Appellant, Geary H. Lee, commenced this appeal by notice filed on July

24, 2015.

 For consistency and ease, the Reporter's Record will be cited as "[Vol #] RR

[Page #s]:[Line #s]," and the Clerk's Record will be cited as "[Vol #] CR [Page

#s]:[Line #s]." The Clerk's Record under the instant action– Rusk County Court at

Law Cause No. 2012-09-449CCL– contains only the recent post-decree petition. For

this reason, Appellant has requested the record be supplemented with the original

divorce and post-decree petition filed under Rusk County Court at Law Cause No. 88-

05-260CCL. The Supplemental Clerk's Record will be cited as "[Vol #] Supp. CR

[Page #s]:[Line #s]."

 -1-
 STANDARD OF REVIEW

 The standard of review for property division issues in family law cases is

generally abuse of discretion. A trial court has broad discretion in dividing the

"estate of the parties," but must confine itself to community property. Eggemeyer v.

Eggemeyer, 554 S.W.2d 137, 139 (Tex.1977).

 The trial court's discretion to divide marital property upon divorce should be

corrected on appeal only when an abuse of discretion has been shown. Murff v.

Murff, 615 S.W.2d 696 (Tex. 1981); Schlueter v. Schlueter, 975 S.W.2d 584, 589

(Tex.1998). A trial court abuses its discretion when it acts without reference to any

guiding principles or acts in an arbitrary or unreasonable manner. Worford v.

Stamper, 801 S.W.2d 108, 109 (Tex.1990). To determine whether the trial court

abused its discretion in its property division incident to divorce, the court should

engage in a two-pronged inquiry: (1) Did the trial court have sufficient information

upon which to exercise its discretion; and (2) Did the trial court err in its application

of discretion? See Tate v. Tate, 55 S.W.3d 1, 5-6 (Tex.App.– El Paso 2000, no pet.).

 The trial court has no discretion in making a determination of law or in the

application of the law. Consequently, the trial court's erroneous legal conclusion,

even in an unsettled area of the law, is an abuse of discretion. Huie v. DeShazo, 922

S.W.2d 920, 927–28 (Tex.1996). The appellate court should review the trial court's

 -2-
 conclusions of law de novo. Smith v. Smith, 22 S.W.3d 140, 143–44

(Tex.App.-Houston [14th Dist.] 2000, no pet.). The standard of review for

conclusions of law is whether they are correct. Material P'ships, Inc. v. Ventura, 102

S.W.3d 252, 257 (Tex.App.– Houston [14th Dist.] 2003, pet. denied).

 In reviewing a legal sufficiency or no-evidence point of error, an appellate

court must consider only the evidence and inferences tending to support the trial

court's finding and disregard all contrary evidence and inferences. See Wal–Mart

Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex.2003). An appellate court should

sustain a "no evidence" point when the record discloses one of the following: (a)

there is a complete absence of evidence of a vital fact, (b) the court is barred by rules

of law or evidence from giving weight to the only evidence offered to prove a vital

fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla of

evidence, or (d) the evidence establishes conclusively the opposite of a vital fact. See

Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711, 40 Tex. Sup.

Ct. J. 846 (Tex. 1997).

 When conducting a factual sufficiency review, an appellate court must consider

all of the evidence, including any evidence contrary to the verdict. Plas-Tex, Inc. v.

U.S. Steel Corp., 772 S.W.2d 442, 445, 32 Tex. Sup. Ct. J. 329 (Tex. 1989).

Furthermore, an appellate court must reverse on the basis of factual insufficiency if

 -3-
 the trial court's finding is so against the great weight and preponderance as to be

manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635, 29 Tex. Sup. Ct.

J. 301 (Tex. 1986).

 Whether attorney's fees are awardable is generally a question of law subject to

de novo review. Brent v. Field, 275 S.W.3d 611, 621 (Tex. App.-Amarillo 2008, no

pet.) (citing Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94, 95 (Tex. 1999)).

Whether the amount of attorney's fees awarded is appropriate is generally reviewed

under the abuse of discretion standard. Brockie v. Webb, 244 S.W.3d 905, 909 -910

(Tex.App.–Dallas,2008)

 -4-
 ISSUES PRESENTED

1. THE TRIAL COURT ERRED AS A MATTER OF LAW IN AWARDING
 APPELLEE A CONTINGENT ATTORNEY FEE IN A DOMESTIC
 RELATIONS MATTER.

2. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
 EVIDENCE, TO SUSTAIN THE TRIAL COURT'S FINDING THAT THE
 ATTORNEY'S FEES AWARDED TO APPELLEE IN THE AMOUNT OF
 $30,774.27 WERE REASONABLE AND NECESSARY.

3. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
 EVIDENCE, TO SUSTAIN THE TRIAL COURT'S FINDING THAT
 RETIREMENT FUNDS AWARDABLE TO APPELLEE WOULD HAVE
 GROWN IN THE AMOUNT OF $29,660.48 BETWEEN 2006 AND 2015.

4. THERE IS NO EVIDENCE, OR IN THE ALTERNATIVE, INSUFFICIENT
 EVIDENCE, TO SUSTAIN THE TRIAL COURT'S FINDING THAT A
 CONSTRUCTIVE TRUST (OR OTHER LIEN) SHOULD ATTACH TO THE
 APPELLANT'S FUNDS ON DEPOSIT WITH EDWARD JONES.

 -5-
 STATEMENT OF FACTS

PROCEDURAL HISTORY AND BACKGROUND– CAUSE NO. 88-05-260-CCL:

 1. Geary H. Lee and Elizabeth D. Holoubek (f/n/a "Lee") were married on

or about April 6, 1974, and ceased to live together as husband and wife on or about

May 11, 1988. 1 Supp. CR 4-6.

 2. Geary H. Lee originally filed for divorce on or about May 31, 1988 in

the Rusk County, Texas County Court at Law, under Cause No. 88-05-260-CCL1. 1

Supp. CR 4-6.

 3. The original Decree of Divorce was entered by then presiding Judge

Darrell Hyatt, on August 3, 1988, following an apparent uncontested hearing on or

about August 1, 1988. 1 Supp. CR 7-13.

 4. On or about December 4, 1992, Appellee, Elizabeth Holoubek, filed a

Motion for Division of Property Not Divided on Divorce, by and through her attorney

Clay Wilder, seeking a post-decree division of Appellant's retirement benefits from

Texas Eastman Company. 1 Supp. CR 14-23.

 1
 This cause number controlled the action until Appellee filed a Petition for Division of
Property Not Divided on Divorce on or about September 13, 2012 under a new cause number.

 -6-
 5. The trial court took testimony and argument in a hearing on or about

October 12, 1993. The court designated this as a "Clarification and modification"

hearing in its docket. 1 Supp. CR 32.

 6. After allowing the parties time to brief the subject, the trial court entered

the following handwritten memorandum in its docket on October 25, 1993: "Ct ruled.

Mr. Lee award 65% of retirement + Mrs. Lee awarded $35%." 1 Supp. CR 33; 1 RR

25:7-15.

 7. No final order or judgment having been prepared, the post-decree

clarification and division then moved by Appellee was set for dismissal docket for

failure to prosecute on June 14, 1995. 1 Supp. CR 28, 33; 1 RR 25:16-21.

 8. On or about November 25, 1997, the matter was again ordered to be set

on the dismissal docket on December 5, 1997. 1 Supp. CR 29, 33; 1 RR 25:22-25.

 9. On or about December 15, 1997, the matter was ordered dismissed for

want of prosecution. 1 Supp. CR 30, 33; 1 RR 26:1-4.

 10. Appellant went to work for Texas Eastman on or about August 6, 1973,

participating in the Eastman Retirement Assistance Plan Pre ‘98 from 1973 until

2006– roughly thirty-two and one half years. 1 RR 41:22–42:4; 1 RR 45:5-7; 1 RR

61:9–62:7. Between 1973 and Appellant's retirement on or about February 1, 2006,

 -7-
 the total value of the retirement account was $306,306.00. 1 RR 41:13–44:20; 1 RR

54:21–55:8; 1 RR 69:20–70:1.

FACTS RELATING TO THE INSTANT ACTION– CAUSE NO. 2012-09-449CCL:

 11. On or about September 13, 2012– almost twenty years after the first

motion to divide was filed– Appellee filed a Petition for Division of Property Not

Divided on Divorce– this time under Cause No. 2012-09-449CCL. 1 CR 5-12.

 12. After several revisions, Appellee landed on her Fourth Amended Petition

for Division of Property Not Divided on Divorce on or about April 26, 2015. 1 CR

32-36.

 13. Therein, Appellee explained that this action was a continuation of the

prior post-decree division ruling in October 1993 which awarded Appellee a 35%

interest in Appellant's retirement benefits during the marriage. 1 CR 32.

 14. Appellee alleged that Appellant had retired in or about February 2006,

withdrawn the funds from the retirement plan, and attempted to interfere with

Appellee's access to the funds thereafter. 1 CR 32-33.

 15. The cause was set and heard, over the Appellant's request for a

continuance, on or about April 30, 2015. 1 CR 37-40.

 -8-
 THE JUDGMENT

 16. Judgment in favor of the Appellee, Elizabeth Holoubek was entered of

record on or about May 14, 2015. 1 CR 41-42.

 17. In pertinent part, the judgment awarded Appellee lump sum damages of

$75,935.68, and an additional award of $30,774.27 for Appellee's attorney fees. 1

CR 41.

 18. The trial court further impressed a lien upon "those accounts standing

in the name of GEARY H. LEE, Respondent, at Edward Jones Investments to secure

payment of those amount ordered herein." 1 CR 42.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

 19. The following Findings of Fact were entered and approved by the trial

court:

 "1. Petitioner [Appellee] was entitled to thirty-five percent (35%) of

 Respondent's [Appellant's] employment/retirement benefits

 accumulated during their marriage.

 2. Respondent [Appellant] retired from said employment on February 1,

 2006 and completely withdrew one hundred percent (100%) of all said

 employment/retirement benefits, including those belonging to Petitioner.

 -9-
 3. Respondent [Appellant] would not deliver Petitioner [Appellee] her

 share of the asset, despite her demands for payment and held it without

 authority.

 4. When Respondent [Appellant] retired and withdrew the accounts,

 Petitioner's [Appellee's] portion thereof was $47,275.20.

 5. The reasonable rate of return for the nine (9) years that Respondent

 [Appellant] held Petitioner's [Appellee's] money was 5.6% per year,

 which produced additional damage to her of $29,660.48.

 6. Petitioner incurred reasonable and necessary attorney's fees in

 connection with recovering her property." 1 CR 58.

 20. The following Conclusions of Law were entered and approved by the

trial court:

 "1. Petitioner [Appellee] is entitled to recover of and from the Respondent

 [Appellant] the sum of $76,935.68.

 2. Counsel for Petitioner [Appellee] is entitled to recover the sum of

 $30,774.27 for reasonable attorney's fees, said amount payable to the

 attorney.

 -10-
 3. The indebtedness of Respondent [Appellant] to Petitioner [Appellee]

 shall bear interest at the rate of six percent (6%) from May 14, 2015, the

 date of the entry of the Judgment, until paid.

 4. Payment of the amounts ordered herein are secured by a lien against all

 accounts standing in the name of Respondent [Appellant] at Edward

 Jones Investments." 1 CR 59.

PERTINENT TESTIMONY AND EVIDENCE ADDUCED AT TRIAL

 21. Appellee retained Attorney Clay Wilder to represent her in the

underlying action on a contingency fee arrangement. 1 RR 12.

 22. The retainer contract at issue was entered into on or about March 26,

2013 and purports to entitle Attorney Clay Wilder to a forty percent (40%) attorney

fee on "any and all recovery obtained for Client." 2 RR 671 (Plaintiff's Exhibit No.

9).

 23. Appellee and her attorney testified that they understood a forty percent

(40%) contingency fee to be a standard contingency fee amount for the recovery of

money in litigation in East Texas. 1 RR 12; 1 RR 80:16-25.

 -11-
 24. Appellee and her attorney testified that they believed Appellee would

have been unable to retain Attorney Clay Wilder on an hourly basis to represent her

interests in the underlying matter. 1 RR 13:2-17; 1 RR 80:4-15.

 25. After discussing the fact that her prior efforts to obtain a post-decree

division of Appellant's retirement benefits in 1993 had been dismissed for want of

prosecution, Appellee admitted that she did not ask Appellant to protect her interest

in the retirement account in any manner. 1 RR 26:22–27:11.

 26. Appellee never asked Appellant to protect her interest in the retirement

account. Nor did she ask him to pay over her interest in the retirement account after

the divorce.2 1 RR 27:16-20.

 27. When questioned, Appellee could identify no instance of Appellant

being "anything but cooperative" with her attempts to clarify and recover her spousal

interest in his retirement account. 1 RR 28:4–29:10.

 28. As of the date of the trial of the underlying matter on April 30, 2015,

Appellee could not identify how much of Appellant's retirement account she was

entitled to, despite conferring with counsel and an accountant. 1 RR 29:11–30:14.

 29. Appellant had one year of employment in at Eastman Texas in

Longview, Texas when the parties were married, fourteen years of employment at

 2
 This admission is directly contrary to Finding of Fact No. 3. 1 CR 58.

 -12-
 Eastman Texas during the marriage (1974-1988), and another eighteen years of

employment at Eastman Texas following the divorce. 1 RR 30:15–32:2. Altogether,

Appellant worked for Texas Eastman about thirty-two and one half years. 1 RR

61:7–62: 7.

 30. Because Appellee failed to segregate her portion of the retirement funds

before Appellant retired in 2006, the parties could not ascertain what her share of the

retirement funds was pursuant to the trial court's 1993 ruling without coming back

to court. 1 RR 35:20–36:6.

 31. Appellant testified that, of the rollover amount deposited with Smith

Barney after his retirement in 2006, $306,306 was directly traceable to his employee

retirement plan at Texas Eastman. The other $97,400 rolled over into the Smith

Barney account was from the Eastman Investment Plan ESOP; a separate retirement

saving account which was begun after the parties divorce in 1988. 1 RR

41:13–44:20; 1 RR 54:21–55:8.

 32. Appellant admits that Appellee is entitled to a thirty-five percent

fractional share of his Eastman Retirement Assistance Plan Pre ‘98 during the

marriage, which lasted for fourteen of the thirty-two and one half years that he

worked for Texas Eastman– to-wit: a thirty-five percent share of forty-four percent

 -13-
 of the total amount of the funds rolled over following his retirement in 2006, or

approximately $45,000. 1 RR 61:9–63:8.

 33. Petitioner's [Appellee's] trial Exhibit No. 4 summarizes the dates of

marriage, dates of employment, and retirement contributions used to calculate the

$47,275.20 judgment entered in Appellee's favor. 2 RR 640 (Marked Plaintiff's

Exhibit No. 4)

 34. Appellee introduced "Plaintiff's Exhibit No. 6" at trial– a document

purporting to be a market report and commercial publication relevant "to address the

need to compound this base number [with interest] and go forward." Appellant

objected on the ground of hearsay, and was overruled. 1 RR 72:10–73:14

 35. Appellee deduced from "Plaintiff's Exhibit No. 6" at trial that retirement

funds "properly invested" over the period of time between Appellant's retirement on

February 1, 2006 and the first quarter of 2015 would have earned 5.56 percent. 1 RR

73:15-22.

 36. Utilizing the 5.56% growth rate, Appellee introduced a summary exhibit

purporting to show a total nine year compounded interest amount on the base rate of

$29,660.48. 1 RR 73:23–74:8; 2 RR 659-664 (Marked as "Plaintiff's Exhibit No. 7")

 -14-
 36. Appellee's Attorney, the Honorable Clay Wilder ("Wilder"), testified in

support of the award of attorney fees against Appellant as costs. 1 RR 77:1– 93:6.

Mr. Wilder testified substantially as follows:

 A. That he has been a licensed Texas attorney for thirty years, is

 experienced and familiar with the type of work he performed on behalf

 of Appellee, and is familiar with the types of fees that are charged for

 this type of work. 1 RR 77:1-15.

 B. The final hearing on this matter before the trial court took approximately

 an hour and a half. 1 RR 77:21-23.

 C. The presentation of this matter before the court "required a great deal of

 work, a great deal of effort on my part, on my office's part, and on my

 staff's part." 1 RR 77:24-25.

 D. That but for Appellee hiring an attorney to intervene, she would never

 have recovered her share of the retirement fund. 1 RR 78:1-15.

 E. That records were subpoenaed and obtained from Edward Jones in St.

 Louis, Missouri and Raymond James at a cost of $300. 1

 RR78:20–79:18.

 -15-
 F. That "multiple hour of effort"... "a great amount of time," was required

 to do the work necessary to get the case ready for trial. 1 RR

 79:20–80:3.

 G. That "there are very standard and acceptable contingent fee rates in East

 Texas to recover sums of money in litigation is 40 percent." 1 RR

 80:16-25.

 H. That Wilder entered a contingent representation contract in this matter

 with Appellee because at his going standard rate of $200 an hour,

 "would have exceeded greatly what we believe is the appropriate

 amount in relation to her claim." 1 RR 80:4-7

 I. That Wilder incurred $1,220.74 in litigation expenses. 1 RR 83:13-17.

 J. That attorney's fees may be awarded in a post-decree division of

 property pursuant to Texas Family Code 9.205.

 37. On cross-examination, Wilder testified that he previously represented

Appellee in the post-decree Motion to Divide Property Not Divided in Divorce in

1993, when the trial court awarded Appellee thirty-five percent of Appellant's

retirement fund. 1 RR 84:12-16.

 38. Wilder further testified that Appellee was aware that she was awarded

a portion of the Appellant's retirement account at that time. 1 RR 84:1-8

 -16-
 39. Wilder further testified that the prior action was dismissed for want of

prosecution in 1993 and had no explanation for the dismissal except what appeared

in the docket. 1 RR 84:12–85:5.

 40. Wilder agreed that "that if a proper qualified domestic relations order

had been prepared subsequent to the hearing in October 1993, that that would have

disposed of all of these issues and we wouldn't be here today." 1 RR 85:9-14.

 41. The trial court orally found and ruled during the hearing as follows:

 A. There was $306,306.00 in the retirement account when Appellant

 retired. 1 RR 93:16-18.

 B. "that it was necessary that Appellee have to employ an attorney to sort

 it all out... so I'm going to award the attorney's fees. 1 RR 94:12-17.

 C. That, "based on the circumstances in this case, and other factors required

 under the Anderson matter, as well as Section 9.205 of the Family

 Code," attorney's fees of forty percent are justified. 1 RR 94:18-22.

 D. That judgment in favor of Appellee for $76,935.68, which are traceable

 to an Edward Jones' account upon which Appellee is granted a lien. 1

 RR 94:23–95:2.

 E. That an award of attorney fees in the amount of $30,774.27, enforceable

 directly by the attorney is appropriate. 1 RR 95:2-5.

 -17-
 SUMMARY OF THE ARGUMENT

 Appellant asserts several arguments in opposition to award of contingent

attorney fees in the amount of $30,774.27 herein. As an overriding matter, Appellant

believes that the trial court lacked the authority to enter the award of contingent

attorney fees as a matter of law for three reasons. First, because such fees are

generally not awardable in family law cases. Second, Appellee's petition was a post-

decree petition for division of undivided property– subject to the attorney's fee

provisions of Family Code § 9.205– in name only, because, the property had in fact

already been divided in 1993. And, third, because further action seeking an award

of attorney fees for the post-decree division of undivided property was barred by res

judicata. Moreover, from an equitable perspective, the Appellee's cause of action to

identify and encumber funds attributable to the 1993 order of division was only

necessary because of Appellee's severe neglect of her own legal interests. Had

Appellee not waited almost twenty years to attempt to enter a qualified domestic

relations order or otherwise protect her share of the retirement funds, this suit would

have been unnecessary.

 Furthermore, Appellant asserts that Appellee failed to present sufficient

evidence in support of the contingent attorney fee as reasonable and necessary.

 -18-
 Appellant does not appeal the trial court's findings or conclusions in relation

to the establishment of the amount awardable to the Appellee from Appellant's

retirement account. Appellant does, however, appeal the finding that Appellee's

share of the retirement account would have experienced compound growth of 5.56%

per year for the nine years after Appellant retired until Appellee sought to claim her

share of the funds. Such a finding could only be based upon conclusions which were

either not in evidence, or not supported by admissible evidence. In particular,

Appellant argues that the trial court erred in admitting an alleged "market

report/commercial publication" which purported to establish the growth rate of the

fund in the abstract, in the absence of expert testimony to qualify the material under

the hearsay exception.

 Finally, the Appellant asserts, that even should the judgment be upheld in all

other respects, there is no basis in equity to impose a constructive trust upon

Appellant's Edward Jones account simply because the funds are traceable to the

account. There being no pre-existing fiduciary duty or special relationship imposing

an obligation upon the Appellant to safeguard the Appellee's funds– as could have

existed by reason of an order from the court had the Appellee not abandoned the 1993

action– there was no lawful basis for imposing such a special remedy.

 -19-
 ARGUMENT AND AUTHORITIES

 ISSUES PRESENTED

 1. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING
 APPELLEE A CONTINGENT ATTORNEY FEE IN A DOMESTIC
 RELATIONS MATTER.

 Whether a party may recover reasonable attorney's fees is a question of law for

the trial court which appellate courts review de novo. Brent v. Field, 275 S.W.3d 611,

621 (Tex. App.-Amarillo 2008, no pet.) (citing Holland v. Wal-Mart Stores, Inc., 1

S.W.3d 91, 94, 95 (Tex. 1999)). It has long been the rule in Texas that attorney's fees

paid to prosecute or defend a lawsuit cannot be recovered in that suit absent a statute

or contract that allows for their recovery. See Tony Gullo Motors I, L.P. v. Chapa,

212 S.W.3d 299, 310-11 (Tex. 2006) (\Absent a contract or statute