in the Matter of the Marriage of Amanda Bradshaw and Barney Bradshaw ( 2015 )

ORIGINAL FILE0 M
TneCotiTtSJA^ate
Ttie *. -urt ot Appeals NO. 06-15-00038-CV
Sixth ©fsWfet
"' sbAh District
KOV 1 8 2015 NOV 1 $ 2015
TRIAL COURT NO. 2013-09-482-CCL
Tixarkana, Texas * Texarka'na, te'x'a's
Debra Audrey, ClerK Debra K. Aufray, "6fe'rk
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT
TEXARKANA, TEXAS
IN THE MATTER OF THE MARRIAGE OF
AMANDA CHERI BRADSHAW,
Petitioner/Appellant
AND
BARNEY SAMUEL BRADSHAW,
Respondent/Appellee
Appeal in Cause Number 2013-09-482-CCL
From the County Court at Law
Rusk County, Texas
The Hon. Chad Dean, Presiding Judge
BRIEF FOR APPELLEE
BARNEY SAMUEL BRADSHAW
RESPONDENT/APPELLEE
TDCJ No. 01942978
Mark W. Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
Page
Index of Authorities ii
Statement Of The Case 2
Statement Regarding Oral Argument ... 3
Summary Of Appellee's Replies 3
Appellee's Reply To Appellant's First Issue 3
Appellant's Contention 1 3
Appellee' s Reply 3
Argument And Authorities ... 4
I. No Error Was Preserved. . . 5
II. There Was No Error In The Characterization
Of The House And Real Property 5
Appellee's Reply To Appellant's Second Issue 8
Appellant's Contention. •••\ 8
Appellee's Reply 8
Argument And Authorities 8
Prayer 9
Certificate Of Compliance 10
Certificate Of Service 10
INDEX OF AUTHORITIES
CASES . Page
In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373
(Tex. App.-Dallas 2013, no pet.) 6
Neyland v. Raymond, 324 S.W.3d 646 (Tex. App.-Fort Worth 2010).. 6
Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997) 6
Toles v. Toles, 45 S.W.3d252 (Tex. App.-Dallas 2001) 6
Von Hohn v. Von Hohn, 260 S.W.3d 361 (Tex. App.-Tyler 2008)...5,6
Wells v. Wells, 251 S.W.3d 834 (Tex. App.-Eastland 2008) 6
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) 6
CODES, STATUTES & RULES
TEX. R. APP. P. 33.1(a) 5
TEX. FAM. CODE ANN. § 7.001 (Vernon 2006) 5
li
NO. 06-15-00038-CV
TRIAL COURT NO. 2013-09-482-CCL
IN THE COURT OF APPEALS
FOR THE SIXTH SUPREME JUDICIAL DISTRICT
TEXARKANA, TEXAS
IN THE MATTER OF THE MARRIAGE OF
AMANDA CHERI BRADSHAW,
Petitioner/Appellant
AND
BARNEY SAMUEL BRADSHAW,
Respondent/Appellee
Appeal in Cause Number 2013-09-482-CCL
From the County Court at Law
Rusk County, Texas
The Hon. Chad Dean, Presiding Judge
BRIEF FOR APPELLEE
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
COMES NOW BARNEY SAMUEL BRADSHAW, Respondent/Appellee, and
submits this brief pursuant to the provisions of the Texas Rules
of Appellate Procedure in opposition of the appeal in cause number
2013-09-482-CCL.
STATEMENT OF THE CASE
This is an appeal from a Fi nal Decree of Divorce entered on
June 17, 2015, by the County Court at Law of Rusk County, Texas,
the Honorable Chad Dean Presiding Judge. (CR1:48-51). Petitioner/
Appellant filed an Original Petition for Divorce on September 10,
2013. (CRl:5-7). The original trial was held on November 12, 2013.
The trial court made its ruling, signed and entered the Final De
cree of Divorce on the same day. (CRl:12-20).
Appellee appealed the original decision of the trial court
to the Twelfth Court of Appeals at Tyler, Texas. Appellee chal
lenged the trial court's division of the marital estate, the award
of seperate property to Appellant, and the refusal to allow Appel
lee to appear in court after a request. The judgment of the Twelfth
Court of Appeals was that the case be reversed and remanded to the
trial court for further proceedings. (CR1:26).
Petitioner/Appellant filed a First Amended Petition for Div
orce on May 12, 2015. (CRl:56-58). A hearing was held on May 4,
2015. (RR1). On May 5, 2015, the trial court entered Judge's Rul
ing of Property of Parties, awarding each party equal one-half
interest. (CR1:30-31). On June 9, 2015, the trial court judge en
tered a ruling awarding 80% of the estate to Appellant and 20% to
Appellee, based on a finding of fault in the breakup of the mar
riage. (CR1:63). The trial court made its ruling, signed and en
tered the Final Decree of Divorce on June 17, 2015. (CRl:64-67).
Appellee requested appointment of counsel on appeal, which
the trial court denied on July 21, 2015, because he is an indigent
inmate in the Texas Department of Criminal Justice. (CR1:70).
STATEMENT REGARDING ORAL ARGUMENT
Appellee believes that oral argument would assist the Court
in discerning the applicable case law and pertinent facts. Appel
lee, therefore, requests oral argument.
SUMMARY OF APPELLEE'S REPLIES
The trial court correctly characterized and confirmed the
house and real property at 78 Florey Lake, Kilgore, Texas, as
community property. Appellant failed to preserve for review her
complaint that the trial court erred by failing to characterize
and confirm the house and real property at 78 Florey Lake, Kil
gore, Texas, as the seperate property of Amanda Bradshaw. Appel
lant did not object to the evidence and she failed to present some
of her argument to the trial court.
The trial court judge did not abuse his discretion in the
division of the marital estate of the parties. Additionally, Ap
pellant failed to present some of her argument to the trial court.
APPELLEE'S REPLY TO APPELLANT'S FIRST ISSUE
Appellant's Contention
"The trial court erred in failing to characterize and confirm
the house and real property at 78 Florey Lake, Kilgore, Texas as
the seperate property of Amanda Bradshaw." (Appellant's Brief at
7). j
Appellee's Reply |
i
Appellant failed to preserve her issue for review because she
did not object to the evidence and she failed to present some of
her arguments to the trial court. Alternatively, the trial court
did not err by failing to characterize and confirm the house and
real property at 78 Florey Lake, Kilgore, Texas as the seperate
property of Amanda Bradshaw.
Argument And Authorities
After the trial court entered a finding that the property
purchased on June 22, 2012, 78 Florey Lake, Kilgore, Texas, was
community property, Appellant filed a Motion to Reopen Evidence.
(CR1:30-31; CRl:32-33). Appellee acknowledges that Appellant "dis-
agree[d] with the Court's ruling characterizing the Florey Lake
property as community property." (CR1:33). Afterwards, a hearing
on the motion to reopen evidence was held on June 9, 2015. (RR3).
At the beginning of said hearing, Appellant restated her disagree
ment with the trial court's characterization of said property.
(RR3:4-5). Appellant then entered evidence as to the asserted fault
on the part of Appellee. (RR3:5-19). Appellant allowed the hearing
to conclude without obtaining a ruling from the trial court that
the property at 78 Florey Lake, Kilgore, Texas, was either commun
ity or seperate proerty of Appellant. (RR3). In fact, Appellant
clearly stated "[t]hat's all we have, Your Honor," at the conclu
sion of the hearing. (RR3:25). That same day, the trial court is
sued a ruling "findfing] the real estate at 78 Florey [Lake,] Kil
gore, TX is community property." (CR1:63). Due to a finding of
fault in the breakup, 80% of the .house was awarded to Appellant
and 20% to Appellee. (Crl:63). The trial court's ruling was deli-
vered via fax to Appellant's trial counsel that day. (CR1:63). An
entire week passed prior to the trial court entering the Final
Decree of Divorce. (CRl:64-67). Appellant failed to file a motion
i
to reconsider the characterization of the community property before
the final decree was filed. (CR1>
I. No Error Was Preserved
To preserve a complaint for appellate review, the record must
show the complaint was made to the trial court by a timely request,
objection, or motion stating the grounds for the ruling sought
with sufficient specificity to make the trial court aware of the
complaint and that the trial court ruled on the request, objection,
or motion. See TEX. R. APP. P. 33.1(a).
Appellant's argument on appeal, that the action of a third
party insurance company cannot alter the seperate property character
of real estate and that Appellee produced no documentation to cor-
roberate his claims for reimbursement or contribution, was not men
tioned at the hearings and is not the same argument to the trial
court. Nothing in the record suggests that these legal arguments
were apparent to the trial court. (CRl; RR2; RR3; RR4). The trial
court had no opportunity to consider or rule on these arguments.
(CRl; RR2; RR3; RR4). Therefore, Appellant failed to preserve these
arguments for review and they should be overruled.
II. There Was No Error In The Characterization Of The House And
Real Property
In a decree of divorce, a court shall order a division of the
estate of the parties in a manner that the court deems just and
right, having due regard for the rights of each party. TEX. FAM.
CODE ANN. § 7.001 (Vernon 2006). A trial court's division of prop
erty is reviewed under an abuse of discretion standard. See Von
Hohn v. Von Hohn, 260 S.W.3d 631j 640 (Tex.App.-Tyler 2008, no
pet.). In determining whether the trial court abused its discre
tion, the entire record is reviewed to determine if the trial court
5
acted arbitrarily and unreasonably. See Toles v. Toles, 45 S.W.3d
252, 266 (Tex. App.-Dallas 2001, pet. denied). Legal and factual
sufficiency challenges are not independent grounds for asserting
error in the division of property, upon divorce, but instead are
relevant factors in determining whether the trial court abused its
discretion. See In re Marriage of C.A.S. and D.P.S., 405 S.W.3d
373, 383 (Tex. App.-Dallas 2013, no pet.). An appellate court en
gages "in a two-pronged inquiry to determine whether the trial
court abused its discretion: (1) did the trial court have suffic
ient evidence upon which to exercise its discretion and (2) did
the trial court err in its application of that discretion?" Ney
land v. Raymond, 324 S.W.3d 646, 649 (Tex. App.-Fort Worth 2010,
no pet.).
The trial court must have an evidentiary basis for its find
ings . See Salinas v. Rafati, 948 ,S.W.2d 286, 289 (Tex. 1997). A
trial court does not abuse its discretion if there is some evi
dence of a substantive and probative character to support the de
cision. Von Hohn, 260 S.W.3d at 640. When no findings of fact or
conclusions of law are filed or requested, it is implied that the
trial court made all the necessary findings to support ,its judg
ment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the
trial court's implied findings are supported by the evidence, an
appellate court must uphold the judgment on any theory of law ap
plicable to the case. See Wells v. Wells, 251 S.W.3d 834, 838-39
Tex. App.-Eastland 2008, no pet.).
On May 4, 2015j the trial court held a final hearing on the
divorce. (RR2). During this hearing, Appellant testified that she
wanted a no fault divorce granted. (RR2:6). She also testified that
the parties were married on November 13, 2010. (RR2:5). Appellant
further testified that the house ion Nolan Street caught fire in
February 2012. (RR2:7). Claculating the time between the marriage
and the fire, without consideration of the amount of time the part-
! '
ies lived together before marriage, indicates the parties lived
together on Nolan Street as husband and wife for at least one year
and three months. j
When asked what she did with the insurance check, Appellant
responded "I paid off the remaining mortgage balance off on that,
and then purchased a new home and furniture." (RR2:7). This was a
clear indication to the trial court that Appellant did not com
pletely "own" the house on Nolan Street when she married Appellee,
that Appellee was also vested in the house. Appellee testified that
when Appellant's ex-husband left, the husband took everthing out
of the house on Nolan Street. (RR2:13). Appellee refurnished the
house on Nolan Street, purchasing TVs, furniture and even dishes.
(RR2:13). In addition, Appellee testified that there was $40,000
owed on the house on Nolan Street. (RR2:15). Appellant never con
tradicted Appellee's assertion, which indicates that Appellee did
make a contribution to the house on Nolan Street. On cross-exam
ination Appellant testified that the check from the insurance set
tlement was issued in both parties names and that the proceeds
from that check is what bought the property at 78 Florey Lake, Kil
gore, Texas. (RR2:10). Appellant further testified that said home
was bought during the marriage. (RR3:19-20).
For the foregoing reasons, Appellee respectfully asserts that
Appellant's first issue should be overruled.
APPELLEE'S REPLY TO APPELLANT'S SECOND ISSUE
Appellant's Contention
"The trial judge abused his discretion in the division of the
marital estate of the parties." (Appellant's Brief at 9).
Appellee's Reply
The trial judge did not abuse his discretion in the division
of the marital estate of the parties.
Argument And Authorities
Once again, Appellant is dissatisfied with the division of
the community property. After having been, awarded 100% of the house
at Florey Lake, the Twelfth Court of Appeals reversed the trial
court's judgment based on the trial court's abuse of discretion
in the division of the property. :(CR1:26). On remand, and after a
i
hearing, the trial court found that the property at 78 Florey Lake
was community property and awarded each party equal one-half inter
est. (RR2; CRl: 30) .Appellant then filed a motion to reopen evi-
i
dence and amended her petition for divorce, this time claiming
i
there was fault in the breakup of the marriage. (CRl:32-33; CR1:56-
58). The trial court then ruled that the house and property at 78
Florey Lake was still community property, but due to a finding of
fault in the breakup of the marriage the court awarded 80% of the
house to Appellant and 20% to Appellee. (CR1:63). Still not satis
fied, Appellant now claims an abuse of discretion by the judge.
While Appellee disagrees with the division of the community
property, he asserts that the trial judge did not abuse his dis-
cretion.
i
The argument and authorities cited in the II. subsection of
Issue One is incorporated hereto and applies to this issue also.
For these reasons, Appellant 's second issue should be over-
ruled.
PRAYER
I
For the reasons stated herein, Appellee prays that the trial
court's judgment be in all things affirmed.
Dated: November 13, 2015. Respectfully submitted,
BARNW SAMUEL BRADSHAW
APPELLEE
TDCJ No. 01942978
Mark W. Michael Unit
2664 FM 2054
Tennessee Colony, Texas 75886
CERTIFICATE OF COMPLIANCE
i
I hereby certify that this brief contains 193 lines of text.
BARNEY SAMUEL BRADSHAW
i
CERTIFICATE IOF SERVICE
I hereby certify that a true and correct copy of the fore
going brief has been served by placing same in the United States
Mail, postage prepaid, on the 13th day of November, 2015, addressed
to Appellant's Counsel at:
Ebb B. Mobley
Attorney At Law
P.O. Box 2309
Longview, Texas 75606
Js"l^lm^Js^jj—-
BARNEY SAMUEL BRADSHAW