In In the Interest of M.G.G., an ex-husband was made a constructive trustee of stocks that he held in his retirement account for his ex-wife. No. 05-19-00777-CV, 2020 Tex. App. LEXIS 6291 (Tex. App.—Dallas August 10, 2020, no pet. history). The divorce order stated that upon sale of the stock, the ex-husband should send the gross receipts from the sale to the ex-wife. When the ex-husband sold the stock, he paid taxes and sent the net receipts to his ex-wife. She sued the ex-husband for breach of fiduciary duty, and the trial court found for her and awarded her damages after a bench trial.

On appeal, the court of appeals described her claim as follows:

The only theory of harm Ms. Gatewood advanced in the trial court is that, by withholding and paying taxes based on his own tax rate instead of hers, Mr. Gustafson forced her to pay taxes at a higher rate. The proper measure of damages for that harm, however, is the difference between the taxes she would have paid at her purportedly lower tax rate and the amount Mr. Gustafson paid the IRS. To prove Mr. Gustafson harmed her in that manner, Ms. Gatewood had to prove there was a disparity between their tax rates.

Id. The court held that there was no evidence in the record as to what the ex-wife’s tax rate was and no evidence that it was lower than the rate paid by the ex-husband. Accordingly, the court reversed and rendered for the ex-husband.