Randal B. Ward v. Suzanne Banowsky McCaskill ( 2018 )

ACCEPTED
03-17-00543-CV
21523412
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/29/2017 10:50 AM
JEFFREY D. KYLE
CLERK
No. 03-17-00543-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
THIRD DISTRICT AUSTIN, TEXAS
AT AUSTIN, TEXAS 1/2/2018 8:00:00 AM
JEFFREY D. KYLE
Clerk
RANDALL B. WARD, Appellant
v.
SUZANNE BANOWSKY MCCASKILL, Appellee
APPEAL FROM THE 274TH DISTRICT COURT OF COMAL COUNTY
TRIAL COURT CAUSE NUMBER C2015-1012C
BRIEF FOR APPELLANT
Gina Jones
State Bar No. 24036855
200 North Seguin Avenue
New Braunfels, Texas 78130
(830) 625-5454 - Phone
(830) 606-2036 - Facsimile
lawofficeofginajones@gmail.com
Attorney for Appellant
Randall B. Ward
ORAL ARGUMENT REQUESTED
Identity of Parties and Counsel
Attorneys for the Appellant, Randall B. Ward
AT TRIAL & ON APPEAL
Gina Jones
JONES SULLIVAN, PLLC
200 North Seguin A venue
New Braunfels, Texas 78130
(830) 625-5454 - Phone
(830) 606-2036 - Facsimile
lawofficeofginajones@gmail.com
Attorneys for the Appellee, Suzanne Banowsky McCaskill
AT HEARING
Deborah Wigington
DEBORAH LINNARTZ WIGINGTON & ASSOCIATES, PLLC
140 South Walnut A venue
New Braunfels, Texas 78130
(830) 627-7300 - Phone
1-866-706-8765 - Facsimile
deb@dlwlawfirm.com
Table of Contents
List of Parties and Counsel .............................................................................................................. i
Table of Contents ............................................................................................................................ ii
Index of Authorities ....................................................................................................................... iii
Su1nmary of the Argument. .............................................................................................................. 1
A. Standard of Review .............................................................................................................. 1
B. Notice of Hearing to Appellant on April 26, 2017 was Inadequate to Allow the Comito
Make a Default Judgement Against Plaintiff. ...................................................................... 2
C. Appellant was Denied His Due Process Rights Guaranteed Under the Fourteenth
Amendment to the U.S. Constitution Because He Did Not Receive Notice of Hearing on
April 26, 2017 ...................................................................................................................... 3
D. Conclusion ........................................................................................................................... 6
Prayer ............................................................................................................................................... 7
Ce1iificate of Service ....................................................................................................................... 8
Ce1iificate of Service ....................................................................................................................... 9
ii
Index of Authorities
Cases
Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) ........................................................ 3
General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942 (Tex. 1991) ....... 3
Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009) .............................................................................. 3
Kuykendall v. Beverly, 436 S.W.3d 809 (Tex. App.-Texarkana 2014, no pet.) ........................... 6
LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390 (Tex. 1989) ............................. 5
Lopez v. Lopez, 757 S.W.2d 721 (Tex. 1988) ................................................................................. 5
Mahand v. Delaney, 60 S.W.3d 371 (Tex. App.-Houston [1st Dist.] 2001), no pet. h.) ............... 5
Matthews v. Eldridge, 424 U.S. 319 (1976) .................................................................................. .4
Mosser v. Plano Three Venture, 893 S.W.2d 8 (Tex. App.-Dallas 1994, no writ) ...................... 5
Myers v. County of Williamson, 2011 WL 6352288 (Tex. App.-Austin Dec. 16, 2011, no pet.). 6
Pennoyer v. Neff, 95 U.S. 714 (1878) .............................................................................................. 4
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) .............................................................. .4, 5
Smith v. Holmes, 53 S.W.3d 815 (Tex. App.-Austin 2001, no. pet. h.) ........................................ 5
Steele v. Steele, 2009 WL 2567911 (Tex. App.-Austin, Aug. 19, 2009) .................................. 1, 2
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................................ .4
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) ............................................ 4
Rules
TEX. R. APP. P. 26.l(a) ..................................................................................................................... 1
Tex. R. App. P. 30 ................................................................ ,.......................................................... 3
iii
Summary of the Argument
A. Standard of Review
"A restricted appeal is available for the limited purpose of providing a non-participating
party an opportunity to correct an erroneous judgment." Steele v. Steele, No. 03-07-00011-CV,
2009 WL 2567911, at 2 (Tex. App. Aug. 19, 2009) (citing Clopton v. Pak, 66 S.W.3d 513, 516
(Tex. App .-F01i W01ih 2001, pet. denied)). To prevail on his restricted appeal, Appellant must
establish that: (1) he filed notice of the restricted appeal within six months after the judgment was
signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that
resulted in the judgment complained of and did not timely file any postjudgment motions or
requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the
record. Steele at 2 (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004)).
"The face of the record, for purposes of a restricted appeal, consists of all the papers,
including the reporter's record, on file when the trial comi rendered judgment." Steele at 3 (citing
DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551 (Tex.1991)); TEX. R. APP. P. 26.l(c), 30. "Because a
restricted appeal affords the same scope of review as an ordinary appeal, the appealing party may
challenge the legal and factual sufficiency of the evidence to support the order rendered." Steele
at 3 (citing Miles v. Peacock, 229 S.W.3d 384, 387 (Tex.App.-Houston [1st Dist.] 2007, no pet.)
(citing Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269,270 (Tex.1997)).
"In family law cases, the traditional sufficiency standards of review overlap with the abuse-
of-discretion standard of review; therefore, legal and factual insufficiency are not independent
grounds of error but are relevant factors in our assessment of whether the trial court abused its
discretion." Steele at 3 (citing Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.-Fort Worth 2004, no
pet.)). "Accordingly, to determine whether there has been an abuse of discretion because the
evidence is legally or factually insufficient to support the trial court's decision, we engage in a two-
1
pronged inquiry, determining whether (1) the trial comi had sufficient evidence upon which to
exercise its discretion, and (2) the trial comi erred in its application of that discretion." Steele at 3
(citing Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied)). "The
applicable sufficiency review comes into play with regard to the first question" (Steele at 3 (citing
Boyd, 131 S.W.3d at 611)) and a legal-sufficiency point must be sustained when, among other
things, " ... the evidence conclusively establishes the opposite of the vital fact." Steele at 3 (citing
City ofKeller v. Wilson, 168 S.W.3d 802, 810 & nn. 15-16 (Tex.2005)).
The judgment or order being appealed was signed on April 26, 2017. Appellant filed notice
of the restricted appeal on August 14, 2017, which is within the required six-month time frame.
Appellant appeared and was the respondent in the underlying lawsuit. Appellant did not participate
in the hearing that resulted in the judgment complained of due to a lack of notice and did not timely
file any postjudgment motions or requests for findings of fact and conclusions of law.
A. Appellant did not Receive Notice of the Final Hearing on April 26, 2017
On April 12, 2016, the trial court signed the "Order on Motion for Withdrawal of Counsel"
submitted by Marilee Brown, Appellant's former attorney ofrecord at trial. In said order, the trial
comi stated:
"The Comi finds that the last known address of [Appellant] Randall B. Ward is 722
W. 30 th Street, Houston, Texas 77018 and ORDERS that all notices in this case
shall either be delivered to [Appellant] Randall B. Ward in person or sent to
[Appellant] Randall B. Ward at that address by both certified and regular first class
mail."
(CR. P. 40, L. 12-15).
2
Despite the above language in the trial court's order, Appellee's counsel at trial, Deborah L.
Wigington, mistakenly mailed the notice to 958 Coyote Ridge Dr., Spring Branch, Texas 78070,
which happened to be the address of her client, Suzanne Banowsky McCaskill, petitioner at trial
and appellee in the instant case. (CR. P. 54). Nonetheless, during the final hearing of April 26,
2017, Wigington stated on the record that she had" ... sent [Appellant] notice on March l51 by
ce1iified and by regular mail" (RR. P. 5, L. 5-7) to the " ... address that was in the order for
withdrawal of [Appellant's] last known address from Ms. Brown." (RR. P. 5, L. 10-12). These
statements simply are not true. (CR. P. 40, L. 12-15; P. 54). Furthennore, Appellant was never
noticed of the comi's order as to the April 26, 2017 final hearing, which prevented him from
acquiring the requisite knowledge of the existence of the trial court's order necessary in the filing
of a motion for new trial as notice of the court's order was also mistakenly sent to 958 Coyote
Ridge Dr., Spring Branch, Texas 78070. (CR. P. 56).
When, as here, a party claims in a restricted appeal that the required notice was not given,
the error must appear on the face of the record. Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex.
2009); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); General Elec. Co. v.
Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942,943 (Tex. 1991); see also TEX. R. APP.
P. 30. Although the trial comi neither requested nor entered any evidence to the record that would
have either supported or controverted such fact, simply taking Wigington's word, as an officer of
the comi, that notice had been perfected on Appellant and that the case was ripe for default, it is
affirmatively shown in the Clerk's record that Appellant did not receive notice of the final hearing.
(RR. p. 4, 1. 11-16).
B. Lack of Notice Deprived Appellant of his Rights to Due Process Guaranteed
Under the 14t1• Amendment to the U.S. Constitution
3
"An elementary and fundamental requirement of due process in any proceeding which is
to be accorded finality is notice reasonably calculated, under the circumstances, to apprise
interested paiiies of the pendency of the action and afford them the opportunity to present their
objections." Peralta v. Heights Med. Ctr., Inc,., 485 U.S. 80, 84-85 (1988) (quoting Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306,314 (1950). Failure to give notice violates "the
most rudimentary demands of due process oflaw." Peralta at 84-85 (quoting Armstrong v. Manzo,
380 U.S. 545, 550 (1965); See also at 85 World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286,291 (1980); Mathevvs v. Eldridge, 424 U.S. 319, 333 (1976); Zenith Radio C01p. v. Hazeltine
Research, Inc., 395 U.S. 100, 110 (1969); Pennoyer v. Neff, 95 U.S. 714, 733 (1878).
"Where a person has been deprived of property in a maimer contrary to the most basic
tenets of due process, 'it is no answer to say that in his pmiicular case due process of law would
have led to the same result because he had no adequate defense upon the merits."' Peralta at 86-
87 (quoting Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915). "As we observed in
Armstrong v. Manzo, 380 U.S., at 552, only 'wip[ing] the slate clean ... would have restored the
petitioner to the position he would have occupied had due process of law been accorded to him in
the first place."' Id. "The Due Process Clause demands no less in this case." Id.
"Once a defendant has made an appearance in a cause, he is entitled to notice of the trial
setting as a matter of due process under the Fomieenth Amendment to the United States
Constitution." LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex.
1989) (per curiam). A defendant who does not receive notice of a post-answer default judgment
proceeding is deprived of due process. Id. A party who has been denied due process through lack
of notice of a trial setting satisfies the first Craddock factor and is not required to meet the
remaining requirements to be entitled to a new trial. Lopez v. Lopez, 757 S.W.2d 721, 723
4
(Tex.1988) (holding that Peralta eliminated the second requirement as a matter of constitutional
law in notice cases); Mahand v. Delaney, 60 S.W.3d 371 (Tex.App.-Houston [1st Dist.] 2001, no
pet. h.); Smith v. Holmes, 53 S.W.3d 815, 817-18 (Tex.App.-Austin 2001, no pet. h .); see also
Mosser v. Plano Three Venture, 893 S.W.2d 8, 12-13 (Tex.App.-Dallas 1994, no writ) (all holding
that the third requirement is necessarily also eliminated in notice cases).
If the party has no notice of the trial or heating, then the party is entitled to have the default
judgment set aside without consideration of the second and third requirements of Craddock. See
LBL Oil Co. v. Int'l Power Servs. Inc., 777 S.W.2d at 390-91 (reviewing a notice defect in the
context of a post-answer default judgment and reviewing the due process claim pursuant to Peralta
and without reference to any other Craddock requirement); see id. (reversing and remanding case
to tiial comi based on conclusion that defendant had no actual or constructive notice of trial
setting); Lopez v. Lopez, 757 S.W.2d 721, 722-23 (Tex. 1988) (per cmiam) (in context of post-
answer default judgment, remanding for new trial and concluding that defendant was not required
to establish Craddock element of me1it01ious defense when record established that defendant did
not have actual or constructive notice of tiial setting); Kuykendall v. Beverly, 436 S.W.3d 809,
814-15 (Tex. App.-Texarkana 2014, no pet.) (noting in context of post-appearance default that,
"when the defendant did not receive actual or constructive notice of trial, he has met the first prong
of Craddock, and due process prevents the application of the second and third prongs of the
Craddock test"); Myers v. County of Williamson, No. 03-10-00410-CV, 2011 Tex.App. LEXIS
9948, at *15, 2011 WL 6352288 (Tex. App.-Austin Dec. 16, 2011, no pet.) (mem.op.)(concluding
that "defendant who has been denied due process through lack of notice of a trial setting is entitled
to a new trial without further showing").
5
C. Conclusion
Appellant has affirmatively shown that (1) he was not noticed of the final hearing held on
April 26, 2017, in violation of his due process rights guaranteed under the 14th Amendment of the
U.S. Constitution (CR. P. 54); (2) Appellant was never noticed of the comi's order as to the April
26, 2017 final hearing, which prevented him from acquiting the requisite knowledge of the
existence of the trial court's order necessary in the filing of a motion for new trial(CR. P. 56); (3)
he filed notice of the restricted appeal within six months after the judgment was signed; (4) he was
a party to the underlying lawsuit; (5) he did not participate in the hearing that resulted in the
judgment complained of and did not timely file any postjudgment motions or requests for findings
of fact and conclusions oflaw; and (6) e1rnr is apparent on the face of the record(CR. P. 40, L. 12-
15; P. 54; P. 56). As such, Appellant is entitled to have the default judgment set aside followed
by a new trial.
6
Prayer
Wherefore, premises considered, Appellant prays that this Honorable Court of Appeals
reverse the trial court's order granting Appellee reimbursement of nineteen thousand, four
hundred and forty-three dollars and twelve cents ($19,443.12) and reverse the division of the
community and separate property in the Final Divorce Decree signed April 26, 2017 because the
Appellant received inadequate notice of hearing and was denied his Due Process rights
guaranteed under the Fourteenth Amendment of the U.S. Constitution. The Appellant prays that
the Court remand this case to the District Court for further orders.
JONES SULLIVAN, PLLC
By:
Gina Jones
200 North Seguin Avenue
New Braunfels, Texas 78130
(830) 625-5454 - Phone
(830) 606-2036 - Facsimile
lawofficeofginajones@gmail.com
Attorneys for Appellant Ward
7
Certificate of Service
I, Gina Jones, attorney for the Appellant, Randall B. Ward, hereby ce1iify that a true and
correct copy of this Brief for the Appellant has been delivered to Appellee counsel, Deborah
Wigington:
Ms. Deborah Wigington
Deborah Linnartz Wigington & Associates, PLLC
140 South Walnut A venue
New Braunfels, Texas 78130
Attorney for Appellee, Suzanne Banowsky McCaskill
By electronically sending it through efile.txcourts.gov service, this 28 th day of December, 2018.
Gina Jones
8
Certificate of Compliance
I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the State of Texas
Rules of Appellate Procedure that the instant brief is computer-generated using LibreOffice and
said computer program has identified that there are 1867 words within the p01iions of this brief
required to be counted by Rule 9.4(i)(l) & (2) of the Texas Rules of Appellate Procedure.
The document was prepared in prop01iionally-spaced typeface using Times New Roman
12 for text.
Gina Jones
9
Appendix
1. Order On Motion For Withdrawal of Counsel
2. Attorney's Certificate of Respondent's Last Known Mailing Address
3. Court Reporter's Record on Final Divorce April 26, 2017
4. Final Decree Of Divorce
F~µlf
At • o'
Ecqna
ockitM
APR 12 016
NO. C2015,.JOJ2C
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
SUZANNE D. MCCASKIL § 274th ,JUDIClAL D.ISTRICT
AND §
RANDAL B. w ARD § COMALCOUNTY;TEXAS
ORDER ON MOTION FOR WITHDRAWAL OF COUNSEL
On ~ 'Zdj, the Court considered the Motion for Withdrawal of Coume of
Marilee H. Brown.
The Court finds that good cause exists for withdrawal of Marilee H.Brown as counsel
The Court finds Urnt a copy of the Motion for Withdrawal of Counsel was de.livere to
·Randal.R Ward, that Randal B. Ward was notified in writing of the right to object to the moti n,
that Randal B. Ward has not cons·ented to the motion, that the last known address of Randal B.
Ward is 958 Coyote Ridge Dr., Spring Branch, Texas, 78070, and that the pending settings nd
deadlines in the case arc as foUows:.
Motion for Mediation set on 4/12/16 at9:00 a.rn ..
lT IS THEREF'ORE ORDERED that Marilee I-I. Brown is permitted fo withdraw as
counsel ofrecord for Randal B, Ward in this case.
th
The Court
. finds tha~ the J~qt known mailing address of Randal
. B. Ward is. 722 W. 3
, . .
Street, Houston, 'texas, 77018 and ORDERS that all notices in this case shall be either delive cd
to Randal B. Ward in person or sent to Randal B. Ward at that address by _b(Hh certified
regular :first-class maH.
The Court orders that MadleeR Brown immediately notify Randal B. Ward in writing .f
any additional settings or deadlines ofwhich Marilee.H. Bro1,-v.11 now has knowledge and has ot
I
l
I
i
already notified Randal B. Ward. The Court further orders Marilee H. Brown to make availabl
to Randal B. Ward, not later than _ _days after the date of entry ofthis order, the originals o
all of Randal B. Ward's discovery responses and documents Randal B. Ward has produced i
response to discovery requests.
SKlNEDo``
AGREED TO AND APPROVED:
HAZEL BROWN & MILLER, PLLC
163 W Bridge Street
New Braunfels, TX 78130
Tel: (830) 629-6955
Fax: (830) 62972559
By:_·-f-l.'--1--1``:..__ ___:~:........\----===+-
/. ilee H. Brown
State Bar No. 24046044
marilee@hazelbrownlaw.com
ttomey for Randal Barrett Ward
By:,~-+-~----.!.-~---------
Deborah Wigingto
State Bar No. 24036971
deb@dlwlaw.com
Attorney for Suzanne B. McCaskill
REVIEWED AND AGREED:
FILED
Susan Collier
C2015-1012C
4/27/2017 10:57:28 AM
Heather N. Kellar
Comal County
District Clerk
NO. C20 l5- l0 12C
IN THE MATTER OF § IN THR DISTRI.CT COURT
THE MARRI A(;E OF §
~
SUZANN I;, HANOWSKY MCCASKILL ~ .HJ UIC IAL DlSTRlCT
§
AND ~
RANDAL BARRETT WARD § COMAL COUNTY, TEXAS
ATTORNEY'S CERTJFlCATE OF RESPONBE,NT'S
LAST KNOWN MAJI .ING ADDRESS
In accordam;l! with ruk 239a of th1.;: Texas Rules orCi vil Pro ·eJurt::, I certify that the last
known mailing a<.klrcss or Respondent , l~a ndal Barrell W,ird. is <)58 Coyote l{i5 A. I do.
6 Q, And are you presently married to Randal Barrett
7 Ward?
8 A. Yes, I am.
9 Q. And were you married to Randal on or about
10 February 27th, 2015?
11 A. Yes, I was.
12 Q. And did you cease to I ive together as husband
13 and wife on approximately June 19 of 2015?
14 A. Yes.
15 Q, And has your marriage to Randal become
16 insupportable due to a discord or a conflict of
17 personalities that would destroy the legitimate ends of
18 your marital relationship?
19 A. Yes.
20 Q. Is there any reasonable expectation of
21 reconci I iation?
22 A. No.
23 Q, Was there any chi Id born of this marriage?
24 A. No.
25 Q, Any chi Id adopted during this marriage?
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays and Caldwell Counties
7
1 A. No.
2 Q, Are you expecting a chi Id at this time?
3 A. No.
4 Q. And we have prepared a proposed decree that
5 would dispose of a 11 the property and the debts of the
6 marriage?
7 A. Yes.
8 Q. And do you be I i eve that it is fair and
9 equitable to both you and Randal?
10 A. Yes.
11 Q. And specifically you are asking the court to
12 award each of you al I the household furnishings,
13 fixtures, and al I other firearms possessions, equipment
14 that would be located in your respective homes or
15 subject to your own possession or control?
16 A. Yes.
17 Q. You are also asking for the court to award each
18 of you the bank accounts that you have in your own
19 names?
20 A. Yes.
21 Q. Any other retirement accounts related to your
22 employment for each of you?
23 A. Yes.
24 Q, Any
25 THE COURT: Those go to the person whose
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
8
1 name they are in?
2 MS. WIGINGTON: Yes, Your Honor.
3 THE COURT: Okay.
4 Q, (By Ms. Wigington) Any I ife insurance insuring
5 either of your I ives?
6 A. Yes.
7 Q. Any brokerage accounts, stocks, bonds, mutual
8 funds in your own names would be ordered to the person
9 whose name it is in?
10 A. Yes.
11 Q. And Mr. Ward would be awarded the 2014 Chevy
12 Si I verado that he currently has possession of?
13 A. Yes.
14 Q, And he'd also be awarded the debt thereon?
15 A. Yes.
16 Q. And then you would be ordered the same things
17 that we have gone through in your own names?
18 A. Yes.
19 Q, For debts: Each of you wi I I take your own
20 debts in your own name?
21 A. Yes.
22 Q. Specifically, though, Mr. Ward has debts that
23 he owes for taxes prior to marriage?
24 A. Yes.
25 Q. And those should be confirmed as his separate
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
9
1 debt for prior to marriage?
2 A. Yes.
3 Q, And you are -- actually each of you wi I I
4 take -- I think we went over this -- the debts in your
5 own name or anything that you incurred solely since your
6 separation?
7 A. Yes.
8 Q. You are asking for tax purposes for 2015 and
9 2016 that you be each ordered to file separately but
10 married?
11 A. Yes.
12 Q, And partition your incomes as such?
13 A. Yes.
14 Q. And then for 2017, you would be ordered to each
15 file individually as though you were divorced on
16 January 1st, 2017?
17 A. Yes.
18 Q, I'm sorry, it would probably be December 31st
19 of 2016 so that al I of 2017 would be partitioned.
20 And you're asking for the court to confirm
21 as your separate property your current residence, which
22 is 958 Coyote Ridge in Spring Branch?
23 A. Yes.
24 Q, Two four-wheelers, a 2013 Dodge Chai lenger,
25 2004 F-250 Ford truck, your residence and real property,
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
10
1 furniture and fixtures located at 1315 Modaff,
2 M-o-d-a-f-f, Road C11, in Naperville, Illinois?
3 A. Yes.
4 Q. Also two donkeys and a 2001 Harley Davidson
5 1200 custom motorcycle?
6 A. Yes.
7 Q, And were al I of those either owned prior to
8 marriage or purchased during marriage with your separate
9 property funds?
10 A. Yes.
11 Q. You are asking that Mr. Ward be ordered to
12 appear at our offices by May 31st to sign the title to a
13 Honda four-by-four also?
14 A. Yes.
15 Q. And then you are asking for a judgment for
16 reimbursement for claims you have against Mr. Ward for
17 loans that you made to him in the amount of $19,443.12?
18 A. Yes.
19 Q. And those represent payments that you made on
20 his behalf for a Toyota truck?
21 A. Yes.
22 Q, For insurance for that truck, for four-wheeler
23 payments?
24 A. Yes.
25 Q. Lawyer's fees that you spent on his behalf as a
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
11
1 I oan?
2 A. Yes.
3 Q, Back taxes that he owed that you paid for him
4 as a loan?
5 A. Yes.
6 Q. Expenses that he agreed were loans for the
7 benefit of his chi I dren?
8 A. Yes.
9 Q. That were not your children. Correct?
10 A. Yes.
11 Q. Okay. Part of a deductible for a wreck that he
12 was in that he was supposed to pay?
13 A. Yes.
14 Q. Medical insurance that he agreed he would repay
15 to you?
16 A. Yes.
17 Q. And a propane bi I I that he asked you to put in
18 your name but also agreed to repay to you?
19 A. Yes.
20 Q. And are you asking the court to formally change
21 your name back to Suzanne Banowsky McCaski I I?
22 A. Yes.
23 Q. And that is middle name B-a-n-o-w-s-k-y?
24 A. Yes.
25 Q. And last name M-c-C-a-s-k-i-1-1?
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
12
1 A. Yes.
2 Q. And are you asking the court to grant your
3 divorce?
4 A. Yes.
5 THE COURT: Did you use a non-mi I itary
6 affidavit and a certificate of last known address?
7 MS. WIGINGTON: w i I I get those f i I ed
8 today, Your Honor.
9 THE COURT: Okay. Al I right.
10 MS. WIGINGTON: can ask my client on the
11 record too.
12 Q. (Ms. Wigington) From your understanding, is
13 Mr. Ward in the mi I itary?
14 A. No.
15 Q. To your understanding, has he ever been in the
16 m i I i ta ry?
17 A. No.
18 Q. And the last known address provided by his
19 counsel was the 958 Coyote Ridge in Spring Branch?
20 A. Yes.
21 THE COURT: Okay. I find that I have
22 subject matter jurisdiction, jurisdiction over the
23 parties. That the respondent, although duly served and
24 having previously appeared, has wholly defaulted after
25 his lawyer withdrew. The default judgment is granted
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
13
1 and rendered, find he is not in the mi I itary and al I the
2 relief sought is fair and granted. Name change is
3 granted.
4 MS. WIGINGTON: Thank you, Your Honor.
5 THE COURT: Good luck.
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MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays and Caldwell Counties
14
1 REPORTER'S CERTIFICATE
2 THE STATE OF TEXAS )
COUNTY OF COMAL )
3
4 I, Mary Scopas, Official Court Reporter in and for
5 the District Court of Comal County, State of Texas, do
6 hereby certify that the above and foregoing contains a
7 true and correct transcription of al I portions of
8 evidence and other proceedings requested in writing by
9 counsel for the parties to be included in this volume of
10 the Reporter's Record, in the above-styled and numbered
11 cause, al I of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $75 and was
18 paid by
19 WITNESS MY OFFICIAL HAND this the 18th day of
20 September, 2017.
21
22 \s\ Mary Scopas
Mary Scopas, RPR, CSR
23 CSR #5313 - Expiration Date: 12/31/18
RPR #812407 - Expiration Date: 09/30/19
24 150 North Seguin Avenue, Suite 317
New Braunfels, Texas 78130
25
MARY SCOPAS, RPR, CSR 5313 (830) 221-1278
Serving Comal, Hays ana Caldwell Counties
F'``~D ~E~ REC OJW
At ·':J. o'clockllrv
'
APR 2 6 2017
HEATHER N. lr the __ Judicial
District C\mrt.
J11risdictio11 and Domiciie
The Court finds that ihe pieadings of Petitioner arc in due form nnd contain ull the
allegations, information, and prerequisites rcquirl~d by law. The Court, after receiving evidence,
linds that it has jurisdiction of this cnsc and of all the rartics and llmt ut lenst sixly days have
elapsed since the dale the suit was filtd.
The Comt !'11rther finds that. at the ti me this suit was filed, Petitioner had been a
domiciliary of Tex.as i'nr the preceding six-month period :rnd a n.:siclcnt of the county in which
this suit was filed for the preceding ninety-day period. All persons entitled to citation were
properly cited.
Jury
A jury was waived, and questions of fact and of law were submitted to the Court.
Divorce
IT IS ORDERED AND DECREED that Suzanne Banowsky McCaskill, Petitioner, and
Randal Barrett Ward, Respondent, are divorced and that the marriage between them is dissolved
on the ground of insupportability.
Child of the Marriage
The Court fmds that there is no child of the marriage of Petitioner and Respondent and
that none is expected.
Division ofMarital Estate
The Court finds that the following is a just and right division of the parties' marital estate,
having due regard for the rights of each party.
Property to Husband
IT IS ORDERED AND DECREED that the husband, is awarded the following as his sole
and separate property, and the wife is divested of all right, title, interest, and claim in and to that
property:
H-1. All household furniture, furnishings, fixtures, goods, art objects, collectibles,
appliances, equipment, and firearms in the possession of the husband or subject to his sole
control excluding the following that is awarded to wife: Mauser rifle with scope, chainsaw, iPad,
custom rifle with scope, wife's Lucchese boots.
H-2. All clothing, jewelry, and other personal effects in the possession of the husband
or subject to his sole control.
H-3. All sums of cash in the possession of the husband or subject to his sole control,
including funds on deposit, together with accrued but unpaid interest, in banks, savings
institutions, or other financial institutions, which accounts stand in the husband's sole name or
from which the husband has the sole right to withdraw funds or which are subject to the
husband's sole control.
H-4. All sums, whether matured or unmatured, accrued or unaccrued, vested or
otherwise, together with -all increases thereof, the proceeds therefrom, and any other rights
related to any profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock
option plan, 401 (k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or
other benefits existing by reason of the husband's past, present, or future employment.
H-5. All individual retirement accounts, simplified employee pensions, annuities, and
variable annuity life insurance benefits in the husband's name.
H-6. All policies of life insurance (including cash values) insuring the husband's life.
H-7. All brokerage accounts, stocks, bonds, mutual funds, and securities registered in
the husband's name, together with all dividends, splits, and other rights m1d privileges in
connection with them.
H-8. The 2014 Chevrolet Silverado motor vehicle, together with all prepaid insurance,
keys, and title documents and debt thereon.
Property to Wife
IT IS ORDERED AND DECREED that the wife, is awarded the following as her sole
and separate property, and the husband is divested of all right, title, interest, and claim in and to
that property:
W-1. All household furniture, furnishings, fixtures, goods, art objects, collectibles,
appliances, and equipment in the possession of the wife or subject to her sole control and the
following items in possession of the husband: Mauser rifle with scope, chainsaw, iPad, custom
rifle with scope, wife's Lucchese boots.
W-2. All clothing, jewelry, and other personal effects in the possession of the wife or
subject to her sole control.
W-3. All swns of cash in the possession of the wife or subject to her sole control,
including funds on deposit, together with accrued but unpaid interest, in banks, savings
institutions, or other financial institutions, which accounts stand in the wife's sole name or from
which the wife has the sole right to withdraw funds or which are subject to the wife's sole
control.
W-4. The swns, whether matured or unmatured, accrued or unaccrued, vested or
otherwise, together with all increases thereof, the proceeds therefrom, and any other rights
related to any profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock
option plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or
other benefits existing by reason of the wife's past, present, or future employment.
W -5. The individual retirement accounts, simplified employee pensions, annuities, and
variable annuity life insurance benefits in the wife's name.
W-6. All policies of life insurance (including cash values) insuring the wife's life.
W-7. All brokerage accounts, stocks, bonds, mutual funds, and securities registered in
the wife's name, together with all dividends, splits, and other rights and privileges in connection
with them.
Division of Debt
Debts to Husband
IT IS ORDERED AND DECREED that the husband shall pay, as a part of the division of
the estate of the parties, and shall indemnify and hold the wife and her property harmless from
any failure to so discharge, these items:
H-1. The balance due, including principal, interest, and all other charges, on the
promissory note given as part of the purchase price of and secured by a lien on the 2014
Chevrolet Silverado motor vehicle awarded to husband.
H-2. The following debts, charges, liabilities, and obligations:
a. all debts, charges, liabilities, and obligations solely in husband's name.
b. All tax liability for years prior to marriage.
H-3. All debts, charges, liabilities, and other obligations incurred solely by the husband
from and after June 18, 2015 unless express provision is made in this decree to the contrary.
H-4. Debt owed to ~fe in the amount of nineteen thousand, four hundred and forty-
three dollars and twelve cents ($19,443.12).
Debts to Wife
IT IS ORDERED AND DECREED that the wife, shall pay, as a part of the division of
the estate of the parties, and shall indemnify and hold the husband and his property harmless
from any failure to so discharge, these items:
W-1. All debts, charges, liabilities, and other obligations incurred solely by the wife
from and after June 18, 2015 unless express provision is made in this decree to the contrary.
Notice
IT IS ORDERED AND DECREED that each party shall send to the other party, within
three days of its receipt, a copy of any con·espondence from a creditor or taxing authority
concerning any potential liability of the other party.
Judgment
IT IS ORDERED that Petitioner, Suzanne Banowsky McCaskill entitled to
reimbursement from Randal Barrett Ward, and therefore, IT IS ORDERED that Suzanne
Banowsky McCaskill is granted a judgment against Respondent of nineteen thousand, four
hundred and forty-three dollars and twelve cents ($19,443.12) such judgment bearing interest at
6 percent simple interest per ye~ from the date this order is signed, for which let execution issue.
Liability for Federal Income Taxes for Prior Year
The Court ORDERS the following for prior tax years:
For the tax year 20 I 5 and 2016, for the purposes of detennining income tax liability, the
parties will partition 100 percent of the income, gain, loss, and deductions attributable to a party
from that party's individual labor, that party's individuaJ efforts, and file married but separate..
The partition further assigns to· a party any exemptions, exclusions, estimated tax payments, and
withholdings made by that party or for his or her benefit from date of marriage through
December 31, 2016. The parties further agree that any tax payments and any payments that are
tax deductible are assigned to the party who made those payments.
Randal Barrett Ward wi.ll report I 00 percent of his income, withholdings, prepayments,
and deductions and none of Suzanne Banowsky McCaskill's income, withholdings,
prepayments, and deductions. Randal Barrett Ward will be entitled to receive 100 percent of any
refund for which he might be entitled on his 2015 and 2016 federal income tax return. Randal
Barrett Ward will pay 100 percent of any liability shown on his 2015 and 2016 federal income
tax return.
Suzanne Banowsky McCaskill will report 100 percent of her income, withholdings,
prepayments, and deductions and none of Randal Barrett Wa.rd income, withholdings,
prepayments, and deductions. . Suzanne Banowsky McCaskill will be entitled to receive 100
percent of any refund for which she might be entitled on her 2015 and 2016 federal income tax
return. Suzanne Banowsky McCaskill will pay 100 percent of any liability shown on her federal
income tax return.
For calendar years 2015 and 2016, each party will indemnify and hold the other party and
his or her property harmless from any tax liability associated with the reporting party's individual
tax return for that year unless the parties have agreed to allocate their tax liability in a manner
different from that reflected on their returns.
The parties agree that nothing contained herein shall be construed as or is intended as a
waiver of any rights that a party has under the "Innocent Spouse" provisions of the Internal
Revenue Code.
Treatment/Allocation of Community Income for Year of Divorce
The Court hereby ORDERS the following for year of divorce:
For the purposes of determining income tax liability, the parties are Ordered to partition
I 00 percent of the income, gain, loss, and deductions attributable to a party from that party's
individual labor, that party's individual efforts, or the property awarded in this agreement to that
party, as his or her sole and separate property, as if that party had been single and unmarried
from January 1, 2017, through the date of divorce. The partition further assigns to a party any
exemptions, exclusions, estimated tax payments, and withholdings made by that party or for his
or her benefit from January I, 2017, through the date of divorce, as if the same were that party's
separate property. For purposes of determining income tax liability, any property awarded to a
party in this agreement shall be deemed to have been partitioned to that party and have been that
party's separate property as of January 1, 2017, and thereafter. IT IS ORDERED that any tax
payments and any payments that are tax deductible are assigned to the party who made those
payments.
For calendar year 2017, each party will file an individual income tax return in accordance
with the Internal Revenue Code.
Randal Barrett Ward will report 100 percent of his income, withholdings, prepayments,
and deductions and none of Suzanne Banowsky McCaskill's income, withholdings,
prepayments, and deductions. Randal Barrett Ward will be entitled to receive 100 percent of any
refund for which he might be entitled on his 2017 federal income tax return. Randal Barrett
Ward will pay 100 percent of any liability shown on his 2017 federal income tax return.
Suzanne Banowsky McCaskill will report 100 percent of her income, withholdings,
prepayments, and deductions and none of Randal Barrett Ward income, withholdings,
prepayments, and deductions. Suzanne Banowsky McCaskill will be entitled to receive 100
percent of any refund for which she might be entitled on her 2017 federal income tax return.
Suzanne Banowsky McCaskill will pay 100 percent of any liability shown on her 2017 federal
income tax return.
For calendar year 2017, each party will indemnify and hold the other party and his or her
property harmless from any tax liability associated with the reporting party's individual tax return
for that year unless the parties have agreed to allocate their tax liability in a manner different
from that reflected on their returns.
Each party will furnish such information to the other party as is requested to prepare
federal income tax returns for 2017 within thirty days of receipt of a written request for the
information, and in no event will the available information be exchanged later than March 1,
2018. As requested information becomes available after that date, it will be provided within ten
days of receipt.
Each party will pay for the preparation of his or her return for 2017.
IT IS ORDERED AND DECREED that all payments made to the other party in accordance with
the allocation provisions for payment of federal income taxes contained in this Final Decree of
Divorce are not deemed income to the party receiving those payments but are prui of the property
division and necessary for a just and right division of the parties' estate.
Confirmation of Separate Property
IT IS ORDERED AND DECREED that the following described property is confirmed as
the separate property of Suzanne Banowsky McCaskill: the residence and real property and all
furniture and fixtures contained therein located at 958 Coyote Ridge Dr., Spring Branch, Texas,
two four-wheelers, 2013 Dodge Challenger, 2004 F-250 Ford, the residence and real property
and all furniture and fixtures contained therein located at 1315 Modaff Rd., C-11, Naperville,
Illinois, 2 donkeys, 2001 Harley Davidson 1200 Custom motorcycle.
Respondent, Randal Barrett Ward is ORDERED to appear at the law office of Deborah
Linnartz Wigington, 140 S. Walnut, New Braunfels, Texas 78130 by 5:00 p.m. on May 31, 2017
to sign the title to the Honda 4X4.
No Alimony
IT IS ORDERED AND DECREED that no provision of this decree shall be construed as
alimony under the Internal Revenue Code, except as this decree expressly provides for payment
of maintenance or alimony under the Internal Revenue Code.
Court Costs
IT IS ORDERED AND DECREED that costs of court are to be borne by the party who
incurred them.
Discharge from Discovery Retention Requirement
IT IS ORDERED AND DECREED that the parties and their respective attorneys are
discharged from the requirement of keeping and storing the docwnents produced in this case in
accordance with rule 191.4(d) of the Texas Rules of Civil Procedure.
Indemnification
Each party represents and warrants that he or she has not incurred any outstanding debt,
obligation, or other liability ~n which the other party is or may be liable, other than those
described in this decree. Each party agrees and IT IS ORDERED that if any claim, action, or
proceeding is hereafter initiated seeking to hold the party not asswning a debt, an obligation, a
liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or
omission of the other party, that other party will, at his or her sole expense, defend the party not
asswning the debt, obligation, li°ability, act, or omission of the other party against any such claim
or demand, whether or not well founded, and will indemnify the party not asswning the debt,
obligation, liability, act, or omission of the other party and hold him or her harmless from all
damages resulting from the claim or demand.
Damages, as used in this provision, includes any reasonable loss, cost, expense, penalty,
and other damage, including without limitation attorney's fees and other costs and expenses
reasonably and necessarily incurred in enforcing this indemnity.
IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on
demand, for any payment made by the indemnified party at any time after the entry of the
divorce decree to satisfy any judgment of any court of competent jurisdiction or in accordance
with a bona fide compromise or settlement of claims, demands, or actions for any damages to
which this indemnity relates.
The parties agree and IT IS ORDERED that each party will give the other party prompt
written notice of any litigation threatened or instituted against either party that might constitute
the basis of a clalm for indemnity under this decree.
Name Change
IT IS ORDERED that Suzanne Banowsky McCaskill, also known as Suzanne Bnnowsky
Ward, is gra11tecl a name change to Suzanne Bnnowsky McCaskill.
Cfar[fj,ing Orders
Without alfocting the finality or this Fina! Decree of Divorce, this Co urt expressly
reserves the right lo make orders necessary to clarify and enforce this decree.
N.eliefNot Granted
IT [S ORDERl:\D AND DECREED that all relief requested in this case nncl not expressly
granted is denied. This is a final j u~1.:Jt½ ., \ ,/2 1/l-._;; C:1_ ? ~ , - -)
-:~;tX1 ,;lRES fDlNG
APPROVED AS TO PORM ONL,Y:~ //
//
DEBOR/\1-1 L1NNARTZ WlGINGT ~//
& ASSOC TATES, PLLC ,... -·
140 S. Walnut Ave.
New Braunfels, Texas 78130
Tel : 830-627-7300
Fax: 1-866-706-8765
Deborah L. Wigington
Attorney for Petitioner
State Bar No. 24036971
deb@dlwlawfirm.com
APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE: