Jameson Thottam v. Elizabeth Joseph ( 2015 )


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  •                                                                                  ACCEPTED
    01-13-00377-CV
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    5/1/2015 1:34:37 PM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-13-00377-CV
    IN THE COURT OF APPEALS
    FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS
    FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS           HOUSTON, TEXAS
    5/1/2015 1:34:37 PM
    CHRISTOPHER A. PRINE
    Clerk
    JAMES THOTTAM
    Appellant
    v.
    ELIZABETH JOSEPH
    Appellee
    Appeal from the 311th District Court of Harris County, Texas
    Cause No. 2007-75702
    APPELLANT’S MOTION FOR REHEARING
    /s/ Bradley W. Tilton II ________________
    BRADLEY W. TILTON II,
    Texas State Bar No. 24035538
    TILTON & TILTON LLP
    3730 Kirby Drive, Suite 1020
    Houston, Texas 77098
    (713) 774-8600 (office)
    (713) 222-2124 (facsimile)
    TABLE OF CONTENTS
    TABLE OF CONTENTS .......................................................................................... ii
    INDEX OF AUTHORITIES.................................................................................... iv
    I. Statement of the Case ...........................................................................................2
    II. Issues Presented ..................................................................................................3
    Issue 1: The Court of Appeals erred in finding that the trial court did not abuse its
    discretion when it did not include the term “domicile” in the amended divorce
    decree.. ....................................................................................................................3
    Issue 2: The Court of Appeals erred in finding that the terms of summer
    possession were moot and the trial court did not abuse its discretion in not
    including the terms from the MSA in the amended final decree of divorce. .........3
    Issue 3: The Court of Appeals erred in granting Appellee’s Motion to Dismiss the
    property related issues under the acceptance of benefits doctrine. ........................3
    III. Argument & Authorities ...................................................................................3
    1. Child Related Issues ...........................................................................................4
    a. The Court of Appeals erred in Overruling Appellant’s issue related to the
    domicile restriction and the omission of the word “domicile” in the Amended
    Final Decree of Divorce .........................................................................................4
    b. The Court of Appeals erred in overruling Appellant’s issue related to the
    summer periods of possession finding that the issue is moot .................................5
    2. Property Related Issues ......................................................................................7
    a. The Court of Appeals erred in granting Appellee’s Motion to Dismiss under
    the acceptance of benefits doctrine ........................................................................7
    b. The Court of appeals erred in stating there is no evidence of financial
    hardship on the part of Appellant ...........................................................................8
    ii
    b. The Court of Appeals erred in finding that there is no indication of the
    effect of a reversal of judgment on the rights to benefits accepted ........................9
    IV. Conclusion ........................................................................................................11
    Certificate of Compliance ........................................................................................12
    Certificate of Service ...............................................................................................13
    iii
    INDEX OF AUTHORITIES
    State Cases
    Cauble v. Gray, 604 S.W2d 197, 198 (Tex. Civ. App.—Dallas 1979, no writ) .......4
    Tex. State Bank v. Amaro, 
    87 S.W.3d 538
    , 544 (Tex. 2002) .................................7, 8
    Leedy v. Leedy, 399 S.w.3d 335, 339 (Tex. App.—Houston [14th Dist.] 2013, no
    pet.) .........................................................................................................................8
    Gathe v. Gathe, 
    376 S.W.3d 308
    , 313 (Tex. App.—Houston [14th Dist.] 2012, no
    pet.). ........................................................................................................................8
    State Statutes
    TEX. FAM. CODE ANN §153.312 (Vernon 2015).........................................................7
    iv
    NO. 01-13-00377-CV
    IN THE COURT OF APPEALS
    FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS
    HOUSTON, TEXAS
    JAMES THOTTAM
    Appellant
    v.
    ELIZABETH JOSEPH
    Appellee
    Appeal from the 311th District Court of Harris County, Texas
    Cause No. 2007-75702
    APPELLANT’S MOTION FOR REHEARING
    TO THE HONORABLE FIRST COURT OF APPEASL”
    JAMESON LUKE THOTTAM, Appellant, files this Motion for Rehearing in
    response to the opinion issued by the Court on April 9, 2015, and respectfully shows
    the following:
    1
    I. Statement of the Case
    Nature of the Case:            This is an appeal brought by Appellant, Jameson
    Luke Thottam (“Appellant”) of a ruling by the 311 th Judicial District Court of Harris
    County, Texas Ordering the Parties to be named Joint Managing Conservators of the
    child born during the marriage, Ariyanna Thottam, Awarding terms of visitation and
    child support for the child, and dividing the community estate of the parties,
    Appellant Jameson Luke Thottam and Appellee Elizabeth Joseph (“Appellee’). CR
    633-6891.
    Course of proceedings and disposition:                 Appellant, Jameson Luke Thottam,
    filed his Brief of Appellant requesting this Honorable First Court of Appeals to
    remand the division of the entire community estate of Appellant and Appellee to the
    trial court for redetermination and to remand the Order of the Court regarding the
    child the subject to the suit to comply with the terms of the mediated settlement
    agreement of the parties. Appellee, Elizabeth Joseph, filed a reply brief, and the
    1
    Citations to the Court Clerk’s Record (CR) are abbreviated as follows: CR pages numbers. If a
    paragraph number is specified on a page within the Clerk’s Record the paragraph number will then
    be identified following the colon. For example, citation to line 4 on page 00014 of the court clerk’s
    record would be shown as “CR00014:4” Citations referenced the Court Reporter’s Record for the
    Arbitration on Property Issues with Reginald Hirsch, which has been supplemented to the Clerk’s
    Record, will be abbreviated as follows: ARR:Page Number:Line. For Example, citation to line 4 on
    page 14 of the Arbitrator’s Court Reporter’s Record will be listed as ARR:14:4.
    2
    Court issued its Memorandum Opinion on April 9, 2015 affirming in part and
    dismissing in part. Appellant now files this Motion for Rehearing asking the Court to
    reconsider Appellant’s arguments.
    II. Issues presented
    Issue 1.     The Court of Appeals erred in finding that the trial court did not
    abuse its discretion when it did not include the term “domicile” in
    the amended divorce decree.
    Issue 2.     The Court of Appeals erred in finding that the terms of summer
    possession were moot and the trial court did not abuse its
    discretion in not including the terms from the MSA in the
    amended final decree of divorce.
    Issue 3.     The Court of Appeals erred in granting Appellee’s Motion to
    Dismiss the property related issues under the acceptance of
    benefits doctrine.
    III. Argument & Authorities
    The Court of Appeals divided its memorandum opinion into two separate
    sections: 1. Child Related Issues and 2. Property Related Issues.
    3
    1.      Child Related Issues
    a.      The Court of Appeals erred in Overruling Appellant’s issue related to
    the domicile restriction and the omission of the word “domicile” in the
    Amended Final Decree of Divorce.
    Under child related issues, the Court Overruled Appellant’s issues related to
    the domicile restriction and period of possession. Regarding the domicile restriction,
    Courts have determined different definitions relating to the word “domicile” and
    “residence.” The Court in Cauble v. Gray listed the elements of the legal concept of
    “domicile” as 1. An actual residence; and 2. The intent to make it the permanent
    home. Cauble v. Gray, 604 S.W2d 197, 198 (Tex. Civ. App.—Dallas 1979, no writ).
    The Court further noted that “while a person may have only one domicile, he may
    have several residences away from the domicile. 
    Id. While this
    Court found that
    removing the word domicile does not affect any change to Appellee’s right to
    establish the child’s primary residence, the issue is that of the permanency
    requirement attached to the word domicile.
    Appellant, in entering into the mediated settlement agreement, placed the word
    domicile in the MSA to ensure that Appellee intended for the residence of the child to
    become permanent. By doing so, it would effectively prevent Appellee from moving
    the child’s “residence” across country between Harris County, Texas and Maryland.
    4
    By removing the word “domicile” from the restriction, there is no requirement for the
    residence designated by Appellee to make it a permanent home for the child, which is
    extremely important in both effectuating the rights and duties of the parties and the
    possession and access of the parties due to the fact that Appellee residing with the
    child in Harris County, Texas, would then initiate the 100 miles or less possession
    schedule, while establishing the child’s residence and domicile in Maryland would
    cause Appellant to have possession pursuant to the 100 miles or more possession
    schedule. The major issue would be in the summertime, in which Appellee, without
    the requirement of “permanency” in making her decision as to where the child lives,
    could change the child’s “residence” from Maryland to Texas, causing Appellant’s
    extended summer possession be reduced from 42 days to 30 days.           By omitting the
    word “domicile” in the final decree of divorce, the Court essentially did significantly
    alter the original terms of the MSA and undermined the parties’ intent. The omission
    destroyed the permanency requirement inherent in the word domicile. As such, this
    Court should grant Appellant’s Motion for Rehearing.
    b.      The Court of Appeals erred in overruling Appellant’s issue related to the
    summer periods of possession finding that the issue is moot.
    Further, the Court should Grant Appellant’s Motion for Rehearing because the
    summer period of possession discussed by Appellant is not moot. Appellant’s issue
    5
    is not moot due to the fact that the final decree of divorce as drafted essentially
    prevented Appellant from having any weekend period of possession in the Summer if
    the parties reside over 100 miles from each other. Under the terms of the mediated
    settlement agreement, Appellant’s summer period of possession for the child was “per
    the family code on within or over 100 miles.” CR 611-612. Under the terms of the
    Final Decree of Divorce, Appellant received summer periods of possession, however,
    Appellant’s weekend period of possession was absent during the summer. CR 167.
    Summer periods of possession included both the extended summer periods of
    possession as well as the summer periods of possession on the weekends. Under the
    terms of the mediated settlement agreement, the mediated settlement agreement stated
    that the terms of the summer periods of possession should be “as per the family
    code.”
    However, the mediated settlement agreement did not designate whether the
    summer periods of possession only included Appellant’s extended summer period of
    possession only. The absence of the term extended is important in the mediated
    settlement agreement in indicating that it was the intent of the parties to include both
    weekend periods of possession and the extended summer period of possession. The
    Texas Family Code’s summer period of possession constitute two separate periods of
    6
    possession: one dealing with extended summer possession for a period of time of
    either 42 days or 30 days depending on whether the parties reside 100 miles apart of
    each other, and weekend periods of possession during the summer. Tex. Fam. Code
    §153.312 (Vernon 2015). By omitting the word “extended” the summer periods
    should have included weekend and extended periods. However, the Final Decree of
    Divorce only included extended summer periods of possession and does not include
    any weekend periods by Appellant. As such, this Court should Grant Appellant’s
    Motion for Rehearing and Reverse the Trial Court’s Judgment and Remand because
    the Trial Court committed reversible error in Entering a Final Decree of Divorce
    which did not have any weekend summer periods of possession pursuant to the Texas
    Family Code.
    2.      Property Related Issues
    a.      The Court of Appeals erred in granting Appellee’s Motion to Dismiss
    under the acceptance of benefits doctrine.
    The applicable law in this case centers on the “Acceptance of Benefits”
    Doctrine, which states that a party who accepts the benefits of a judgment may not
    appeal that judgment. Tex. State Bank v. Amaro, 
    87 S.W.3d 538
    , 544 (Tex. 2002);
    Waite v. Waite,150 S.W.3d 797 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
    7
    It is the Appellee’s burden to prove that an acceptance of benefits of a judgment has
    taken place. Leedy v. Leedy, 399 S.w.3d 335, 339 (Tex. App.—Houston [14th Dist.]
    2013, no pet.). If the appellee proves that an acceptance of benefits exists, it then
    becomes the Appellant’s burden to demonstrate that either the doctrine does not apply
    or that the acceptances falls within one of two well settled exceptions to the rule. See
    
    Leedy, 399 S.W.3d at 339
    . The first exception allows for a party to accept the
    benefits of a judgment without penalty due to economic necessity. See Gathe v.
    Gathe, 
    376 S.W.3d 308
    , 313 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The
    second exception applies if a reversal of the judgment would not affect the appellant’s
    right to the benefit accepted. 
    Amaro, 87 S.W.3d at 544
    .
    b.      The Court of appeals erred in stating there is no evidence of financial
    hardship on the part of Appellant.
    In its Memorandum Opinion, the Court states that no evidence has been
    identified in the record to prove that Appellant has suffered any financial hardship.
    This, however, is not the case. Regardless of the outcome of the divorce proceedings,
    Appellant had little options other than to file for bankruptcy due to a surge of
    outstanding debts and tax liabilities. A great deal of taxes were owed to the IRS,
    including outstanding property taxes on eight of the parties’ real estate property, that
    sum being upwards of $96,000.00, which was emptied from the parties’ E-Trade
    8
    Account. Much of the unpaid tax liability stemmed from Appellee’s failure to pay
    taxes on her separate estate corporation, Zeon Corporation. ARR: 160:2-160:12,
    ARR: 85:4-85:22.
    Additionally, throughout the arbitration, evidence and testimony established
    Appellant’s dire economic circumstances. On more than one occasion, Jameson
    Thottam described various bank accounts being either in the negative or holding
    funds that amounted to less than five cents. ARR: 157:13-157:17, ARR: 49:5.
    Furthermore, much of Appellant’s evidence in the arbitration focuses on the large
    sums of money in accounts which had to be liquidated to satisfy outstanding debts,
    including 529 accounts owned by Appellant, leaving Appellant with very little money
    and a great deal of debt. ARR:1162:1-1162:16.
    c.       The Court of Appeals erred in finding that there is no indication of the
    effect of a reversal of judgment on the rights to benefits accepted.
    Further, in its Opinion, the Court notes that if the case were remanded for a
    new division of the marital estate, there is a chance the arbitrator could award the
    interests in the properties differently than was done originally. The Court’s opinion
    does not take into account that all of Appellant’s tracing testimony was not admitted
    by the arbitrator. In several instances when Appellant proceeded to discuss the
    9
    tracing of the various pieces of community and separate property at hand in the
    divorce, the arbitrator sustained Appellee’s objections, thereby not allowing that
    evidence to come into the record. ARR: 1114:18-1117:14, ARR:1120:15-1130:19,
    Ex. 168. It is Appellant’s position that had the arbitrator allowed Appellant’s tracing
    testimony and correctly divided the property among the parties in the original
    proceedings, the property division would have to be the same upon reversal.
    Furthermore, it is undisputed that Appellant brought a large separate estate to the
    community, and in fact, Appellee admitted she used funds from Appellant’s separate
    estate family trust account to enrich her separate estate corporation. Additionally,
    Appellee admitted that she regularly used community funds for her separate estate
    corporation. ARR: 845:21-847:22, Ex.49. If this was taken into account in the
    original proceedings, along with Appellant’s evidence of tracing, the Court, upon
    reversal, would have to divide the estate in a such a way that Appellant would be
    reimbursed for Appellee’s use of the community estate and Appellant’s separate
    estate to enrich Appellee’s own separate estate. It is therefore likely that much of the
    properties sold to satisfy Appellant’s creditors would have been awarded to him upon
    re-division of the estate.
    10
    Furthermore, the arbitrator in his ruling found that the parties’ real estate,
    including the Oboe, Dumbarton and Sarong properties, were Elizabeth Joseph’s
    separate property. Appellant has contended that the Oboe and Dumbarton properties
    are owned equally with Elizabeth Joseph as the parties’ separate property based on
    grant deeds originally withheld and only produced by Elizabeth Joseph a few days
    prior to the arbitration hearings in 2012. Regardless of whether the Court would find
    that Elizabeth Joseph owns the properties as her sole and separate property, the
    community estate would have been entitled to a reimbursement claim for the principal
    reduction of the mortgage balance on the properties. Furthermore, several assets
    which were exempt from the bankruptcy court’s jurisdiction, including the properties
    discussed above, would have surely been awarded to Appellant, including a fifty
    percent share in the Dumbarton property, along with Appellant’s retirement accounts.
    CR 48-106. It is therefore clear that much of the property sold to satisfy Appellant’s
    creditors, in addition to property exempt from the bankruptcy court’s jurisdiction
    which was incorrectly awarded to Appellee, would likely have been awarded to
    Appellant due to the sheer disproportionate division of the parties’ estate in favor of
    Appellee.
    11
    IV. Conclusion
    WHEREFORE, PREMISES CONSIDERED, Jameson Thottam prays this
    Court grant Appellant’s Motion for Rehearing, withdraw its opinion, revers the trial
    court judgment, and either render judgment for Appellant or reverse and remand for a
    new trial.
    Respectfully submitted,
    TILTON & TILTON LLP
    3730 Kirby Drive, Suite 1020
    Houston, TX 77098
    Tel: (713) 774-8600
    Fax: (713) 222-2124
    By: /s/ Bradley W. Tilton II
    Bradley W. Tilton II
    State Bar No. 24035538
    Attorney for Jameson Thottam
    CERTIFICATE OF COMPLIANCE
    I certify this document contains 2,723 words (counting all parts of the
    document). The body text is 14 point font, and the footnote text is 12 point font.
    /s/ Bradley W. Tilton II_________________
    Bradley W. Tilton II
    12
    CERTIFICATE OF SERVICE
    A copy of this motion was served on the persons shown below and attached
    at the addresses reflected on April 30, 2015 by prepaid United States first class
    mail or electronic service.
    /s/ Bradley W. Tilton II_________________
    Bradley W. Tilton II
    Sallee S. Smyth
    Attorney at Law
    800 Jackson Street
    Richmond, Texas 77469
    Telephone: 281.238.6200
    Facsimile: 281.238.6202
    smyth.sallee@gmail.com
    13
    

Document Info

Docket Number: 01-13-00377-CV

Filed Date: 5/1/2015

Precedential Status: Precedential

Modified Date: 4/17/2021