in Re: John Jeffrey McCafferty ( 2015 )

ACCEPTED
05-15-01345-CV
05-15-01345-CV FIFTH COURT OF APPEALS
DALLAS, TEXAS
11/4/2015 9:37:24 AM
LISA MATZ
CLERK
No
INTHE FILED IN
5th COURT OF APPEALS
COURT OF APPEALS FOR THE DALLAS, TEXAS
FIFTH DISTRICT OF TEXAS 11/4/2015 9:37:24 AM
LISA MATZ
Clerk
INRE: JOHN JEFFREY MCCAFFERTY,
RELATOR
PETITION FOR WRIT OF MANDAMUS
to the 254th Judicial District Court of Dallas County, Texas
Cause No. 08-05932-R
LAW OFFICES OF FRANK SHOR
FRANK SHOR
State Bar No.. 18294700
1620 E Belt Line Road
Canollton, Texas 75006
(972) 242-8887
(972) 446-7976 FAX
FiankShoiLawFiim@gmail.com
Attorney for Relator
i
IDENTITY OF PARTIES AND COUNSEL
Relator: John Jeffrey McCafferty, certifies that the following is a complete
list of the names and addresses of all parties and their counsel.,
Relator's Lead Counsel:
Frank Shor
State Bar No , 18294700
Law Offices of Frank Shor
1620 E Belt Line Rd,
Carrollton, Texas 75006
FrankShor lawfirm@gmail.com
Respondent:
Hon, Susan Rankin
Judge of the 254th Judicial District Court
Dallas County, Texas
George L, Allen Sr., Courts Building
600 Commerce Street
Dallas, Texas 75202
Real Parties in Interest:
John Jeffrey McCafferty
Mary Micheline McCafferty
Attorney for Mary Micheline McCafferty:
Reagan K, Vernon
State Bar No,. 24081192
Koons Fuller, P,C.
1717 McKinney Avenue
Suite 1500
Dallas, Texas 75202
Reagan@koonsfuller.com
il
RECORD REFERENCES
Relator, John Jeffrey McCafferty, will refer to the Appendix by Exhibit and
page number , as follows (Ex. [exhibit letter], P, [page number])., By way example,
if Relator is citing to page 4 of Exhibit D, the citation will be Ex. D, P., 4. As for
the Reporter's Record, Relator will refer to it as "(RR [page number], Ln„ [line
number(s)])."
iii
TABLE OF CONTENTS
IDENTITY OF PARTIES and COUNSEL ii
RECORD REFERENCES iii
TABLE OF CONTENTS iv-v
TABLE OF AUTHORITIES vi-vii
STATEMENT OF THE CASE viii
STATEMENT OF JURISDICTION ix
ISSUE PRESENTED x
INTRODUCTION 2
STATEMENT OF FACTS 3
SUMMARY OF ARGUMENT
I, The Trial Court Erred in Appointing a Receiver, Because:
A,. The Trial Court Lacked Authority to Enter
...
the Order Appointing a
Receiver (but abused its discr etion if it had the power to rule)
7
7
7
B . Petitioner Failed to Present the Requisite Evidence to Support the
of a Receiver'
II Ther e is No Adequate Remedy by Appeal
PRAYER
— ....
Trial Court's Decision to Grant Petitioner's Request for an Appointment
10
11
12
CERTIFICATION 13
CERTIFICATE OF COMPLIANCE 13
iv
CERTIFICATE OF SERVICE 13-14
APPENDIX 15
v
(Tex.2000)
. TABLE OF AUTHORITIES
BlandIndependent School Distr ict v Blue, 34 S.,W,3d 547, 554
Cox v Johnson, 638 S„W,2d 867, 868 (Tex. 1982) (per curiam). ..
Craddockv Sunshine Bus Lines, 134 Tex, 388, 133 S,W.,2d 124, 126
(Tex.Comm.App,— 1939, opinion adopted)
Harris County v. Sykes, 136 S W 3d 6.35, 638 (Tex,2004)
proceeding) .........
......
....
Carl J Battaglia, MD, P A v Alexander , 177 S.W,3d 893, 907 (Tex,
2005)
Claxton v (Upper) LakeFork Water Control, 220 S.W 3d 537, 541
(Tex, App,—Texaikana 2006, no pet)
In re Brookshire Grocery Co , 250 S.W„3d 66, 68 (Tex, 2008) (orig,
proceeding)
.-
Downer v Aquamarine Operators, Inc , 701 S ,W.2d 238, 241-42 (Tex,, 1985) ,10
Everett v Everett,421 S,W,3d 918, 921 (Tex, App,—El Paso 2014, no
pet)
Harrington v Schuble, 608 S.W.2d 253, 256 (Tex. Civ, App. 1980)
In re Jacobs, 300 S ,W,3d 35, 40 (Tex, App —Houston [14th Dist ] 2009, orig.
. .. .......
.... .....
In re McAllen Med Ctr , Inc , 275 S,W.3d 458, 464 (Tex 2008) (orig,,
proceeding) ..
In re Olshan Found Repair Co , 328 S .W,3d 883, 888 (Tex. 2010)
In re Prudential Ins Co v Am ., 148 S„W, 3d 124, 135-36 & n,47 (Tex .
2004)
vi
..
7
- -7
9
8
9
6
7
10
7
11
11
11
7
In re RFC., 282 S.W 3d 722, 728 (Tex.. App—Dallas 2009, no pet,)
In re Sw Bell Tel Co , 35 S.W 3d 602, 605 (Tex, 2000)
denied). .. . .....
..........
Tex Ass'n ofBus v.. Tex Air Control Bd, 852 S ,W,2d 440, 446
(Tex,.1993)
Texas Indus, Traffic League v Railroad Comm'n, 633 SW,2d 821, 82,3
(Tex.1982) (per curiam)
Tex. R. App,. R. 52.1
..
Tex,, Fam. Code Ann,, § 9.002 (Vernon 2006)
Tex, Fam. Code Ann, § 9 006(a) (Vernon 2006)
..
Walker v Packer,827 S,W.2d 833, 840 (Tex, 1992)
Tex,. Fam., Code Ann, § 9..007(a) (Vernon 2006)
vii
...
....
...
2
...
.
In re WL W , 370 S..W.3d 799, 807 (Tex App,—Fort Worth 2012, mandamus
..
12
8
7
7
1
8
8
9
11
In re Weekley Homes, L P , 295 S .W,3d 309, 322 (Tex, 2009) (orig. proceeding)
Mayhew v Town ofSunnyvale, 964 S,W.2d 922, 928 (Tex,,1998) ...
.8
O'Carolan v Hopper, 71 S ,W.3d 529, 534 (Tex, App,—Austin 2002, no pet,
hist) ..
Smithsonv Cessna Aircraft Co , 665 S, W.2d439, 443 (Tex. 1984)..
11
9
10
STATEMENT OF THE CASE
Nature of the Case:
This mandamus proceeding challenges an order appointing a receiver to
handle all portions of the sale of Relator, John Jeffrey McCafferty's, homestead
(and Real Party in Interest's real estate) because the trial court lacked jurisdiction
to enter such an order under the Texas Family Code..
Respondent: Honorable Susan Rankin
Judge of the 254th Judicial District Court of Dallas County,
Texas.
Course of Proceedings and Respondent's Challenged Action:
Respondent did not have the power to enter the October 15, 2015 Order on
Motion to for Appointment of Receiver (her eafter the "Or der ") because the Order
was based on a pr eviously entered order—the December 12, 2013 Interim Or der on
Petition for Enforcement (hereafter the "Interim Order")., The Trial Court's
enforcement of the Interim Or der violated Section 9.007 of the Texas Family Code
(hereafter the "Statute"). In addition, Petitioner, Mary M. McCafferty (Relator's
ex-wife), failed to present the evidence which was called for by the Interim Order
for the Court to grant the requested relief of the appointment of a Receiver
(assuming the Court had the jurisdiction to do so).
Because the Interim Order amended, modified, altered, and/or changed the
division of property, the trial court was without jurisdiction to enter an Order
enfor cing same..
Further, the Interim Order required that Petitioner present evidence to
Relator's counsel and to the trial court that Relator failed to pay the sums due
under the Interim Order,, Petitioner failed to present any evidence that Relator
failed to pay the sums due under the Interim Order, Hence, there is insufficient
evidence to the support the Respondent's Order (assuming arguendo, that said
Order is, or was, enforceable).
viii
JURISDICTIONAL STATEMENT
This Court has original jurisdiction to issue extraordinary relief pursuant to
Rule 52. 1 of the Texas Rules of Appellate Pr ocedure,
ix
ISSUES PRESENTED
1, Didthe trial court err when it enforced an Order which amends, modifies,
or alters the division of property contained in a previously signed
Divorce Decree?
2.. Didthe trial court err when it enforced an order, even though the Movant
failed to prove the necessary elements as set forth in the order?
x
No.
In the
Court of Appeals for the
Fifth District of Texas
In Re John Jeffrey McCafferty,
Relator
On Petition for Writ of Mandamus to the
254th Judicial District Court of Dallas County, Texas
PETITION FOR WRIT OF MANDAMUS
To the Honorable Court of Appeals for the Fifth District of Texas
at Dallas:
Pursuant to Rule 52 of the Texas Rules of Appellate Procedure,
Relator seeks mandamus relief from the trial court's order appointing a
receiver to sell the Relator's homestead, Tex, R. App P. 52,1, Relator would
show that Respondent did not have the power to enter the complained of
Order, but that even in the unlikely event that the Respondent did, that the
Trial Court abused its discretion in granting the complained of Order
(because Petitioner [Real Party in Interest, Mary Micheline McCafferty]
failed to present the evidence required under the terms of said Order to
obtain her requested relief),
1
INTRODUCTION
On October 15, 2015, the trial court signed an Order Appointing a
Receiver (to sell Relator 's homestead). The Order is attached hereto as Ex.
A in the Appendix, which contains a true and correct copy of each of the
original of Relator's exhibits and the Reporter's Record, This Order is based
on an order —to wit, the Interim Order (Ex, B) which amended, modified,
altered, and/or changed the division of property contained in the parties'
Divorce Decree. Thus, the trial court was without jurisdiction to enter the
October 15, 2015 Order, because an order that amends, modifies or alters a
division of property in a divorce decree may not be enforced, F.C., §9 007.
Further, the Interim Order (upon which the Order appointing the
Receiver was based) contains the following: "If [Relator] fails to deposit or
wire the money in the amounts or on the dates listed above, upon proof
provided to his attorney and to the Court, a receiver will immediately be
appointed to list the [Property] for sale " The Reporter 's Record shows
that Petitioner failed to present any evidence that Relator failed to pay the
sums due under the Interim Order. Hence, there is no evidence establishing
that the terms of the Interim Or der were satisfied,
As a result of the trial court's order, Relator's ability to sell his
homestead is severely constrained, This may detrimentally impact the
2
amount that Relator will recover as his share from the proceeds of the sale of
the property (and may ultimately result in a forfeiture).. Relief from this
Court is therefore necessary.,
There is no adequate remedy by appeal in this case, as Relator is
unable to file an interlocutory appeal challenging the trial court's order; This
Court should grant the petition for writ of mandamus and order the trial
court to vacate its order appointing a receiver to sale the Relator's
homestead.
STATEMENT OF FACTS
On July 17, 2009, the trial court entered an Agreed Final Decree of
Divorce (hereafter the "Decree"), which stated, in relevant part, as follows:
1. IT IS FURTHER ORDERED AND DECREED that the
property and all improvements located thereon at lot 40, block
1/8175, Williamsburg at Preston An Addition to the City of
Dallas, accor ding to the Plat ther eof r ecor ded in Volume 78090,
Page 1397, map records of Dallas County, Texas, and more
commonly known as 14327 Hughes Lane, Dallas, Texas 75254
(hereafter the "Property"), shall be sold under the following
conditions:
2. The Property shall be sold for a price as determined by
[Relator], [Petitioner] shall receive $509,000 as her share of the
community pr operty .
4 The net sales proceeds (defined as the gross sales price
less the cost of sale and full payment of any mortgage
indebtedness or liens on the property) shall be distributed as
follows:
3
a. $509,000 to [Petitioner] „ . , Notwithstanding the
foregoing language, [Relator] shall be reimbursed from the
$509,000 due [Petitioner] limited to the following amounts:
1,.Monies paid [Petitioner] by [Relator] after date of
divorce as an advance on her $509,000.. The advance on the
$509,000 shall be defined by the amount [Relator] pays
[Petitioner] after divorce in the contemplated amount of $4,000
per month payable each 15th of the month,
Ex, C, P, 16-17,
On July 25, 2013, Petitioner filed a Petition for Enforcement of
Property Division and Petition for Breach of Contract, Ex, D, P, 1„ In her
petition, Petitioner sought enforcement of the Decr ee alleging, inter alia,
that Relator had failed to comply with the Decree by failing to list the
Property for sale and failing to the pay the $4,000 monthly advance, Id at P..
2, On December 18, 2013, the Court signed an Interim Order (Ex„ B, P, 1„)
The Interim Or der states, in relevant part, the following:
1..
[Petitioner's] bank account with Capital One Bank the
following sums: $15,000 on November 12, 2013; $10,000 on
December 15, 2013; and $10,000 on January 15, 2014 ...
[Relator] will wire transfer or direct deposit into
Until
the [Property] is listed for sale, [Relator] will continue to pay
[Petitioner] the sum of $10,000 on the 15th day of each month.
2, After the date the [Property] is listed for sale, [Relator]
will wire transfer or direct deposit the sum of $6,000 per month
on the 15th day of each month to [Petitioner].
4. If [Relator] fails to deposit or wire the money in the
amounts or on the dates listed above, upon proof provided to
4
appointed to list the [Property]
Id at P. 1-2.
...
his attorney and to the Court, a receiver will immediately be
for sale,
On September 9, 2015, Petitioner filed her Second Amended Petition
for Enforcement of Property Division and Petition for Breach of Contract
and for Enfor cement of Interim Or der on Petition for Enforcement , Ex. E, P,
1„ In this pleading, Petitioner sought to enforce the terms of the Inter im
Order by having a r eceiver appointed to handle the sale of the Property. Id
at P. 3-4.
Relator objected to the appointment of a receiver based upon the
Interim Order , because an order enforcing the Interim Order would violate
Section 9.007 of the Texas Family Code. See Ex,. F (Relator's Response to
(Anticipated) Application for Receiver) & Ex. G. (Plea to the Jurisdiction),,
In his pleadings, Relator stated, in no uncertain terms, that the Interim Order
was unenforceable because it amended, modified and/or altered the division
of property contained in the Decree..
On October 15, 2015, the trial court heard the Application to Appoint
a Receiver; At the hearing, Petitioner's counsel acknowledged that the
Interim Order modified the Decree, but argued that it was done by
agreement. RR. 5, Ln. 9-13. Petitioner argued, in essence, that the agreement
of the parties to modify the Decree granted the tr ial court the jur isdiction to
5
enter the Interim Order, However, under Texas law, "a party cannot confer
or waive jurisdiction by consent or agreement," Claxton v (Upper) Lake
Fork Water Control, 220 S,W,3d 537, 541 (Tex,, App,—Texarkana 2006, no
pet,,). Arguing in the alternative, Petitioner also took the position that the
orders were not substantial modifications such that they would violate the
Statute,, RR 5, Ln, 23-25; RR 11, Ln 21-22 ,
After a short recess, to consider same, Respondent granted
Petitioner's request and entered the challenged Order appointing a receiver,,
RR 13, Ln 22-25 - RR 14, Ln 1-6. The Order states, in relevant part, as
follows:
The Court, after hearing pleadings, evidence, and argument of
counsel, is of the opinion that proper grounds exist for the
immediate appointment of a receiver ,
IT IS THEREFORE ORDERED that Eve Sullivan and Shelley
Tillery are appointed Receiver to take charge and possession of
the [Property ,]
IT IS FURTHER ORDERED that Eve Sullivan or Shelley
Tillery are authorized to manage, control, and dispose of the
property as they see fit in their sole discretion in accordance
with the listing agreement,
IT IS FURTHER ORDERED that the parties fully cooperate
with [sic] Receivers, including, without limitation, signing a
real estate listing agreement that lists the [Property] initially at
$L399m[J
Ex, A, P ,l,
6
ARGUMENT
Mandamus relief is available where (1) a court abuses its discretion
and (2) there is no "adequate r emedy by appeal. " In re Prudential Ins Co v..
Am.,, 148 S.W,3d 124, 135-36 & n.47 (Tex.. 2004) (citing Walker v Packer ,
827 S.W,2d 833, 840 (Tex, 1992)). A trial court clearly abuses its discretion
when it reaches a decision so arbitrary and unreasonable as to amount to a
clear and prejudicial error of law or if it clearly fails to correctly analyze or
apply the law. See In re Olshan Found Repair Co , 328 S.W 3d 883, 888
(Tex. 2010); see also Walker, 827 S.W,2d at 839.
I The Trial Court Erred inAppointing a Receiver, Because:
A. The Trial Court Lacked Authority to Enter the Order
Appointing a Receiver (but abused its discretion if it had
the power to rule).
A trial court commits fundamental error when it enters an order that is
beyond the trial court's jurisdiction. See Cox v Johnson, 638 S ,W,2d 867,
868 (Tex. 1982) (per curiam); Texas Indus Traffic League v Railroad
Comm'n, 63.3 S,W.2d 821, 82.3 (Tex 1982) (per curiam), A plea to the
jurisdiction is a dilatory plea by which a party challenges the court's
authority to determine the subject matter of the action. Harris County v
Sykes, 136 S.W„3d 635, 638 (Tex.2004); Bland Independent School District
v. Blue, 34 S W..3d 547, 554 (Tex,, 2000), The relief seeking party bears the
7
burden of alleging facts that affirmatively show the trial court has subject
matter jurisdiction. Tex. Ass'n of Bus v Tex Air Control Bd, 852 S.,W,.2d
440, 446 (Tex 1993)., Because the question of subject matter jur isdiction is a
legal question, the trial court's ruling on a plea to the jurisdiction is reviewed
under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964
S.,W.,2d 922, 928 (Tex. 1998),
A court that renders the decree of divorce r etains the power to enforce
the property division, See Tex., Fam,. Code Ann. § 9,002 (Vernon 2006).
Pursuant to the Family Code, a court may render further orders to enforce
the division of property made in the decree of divorce to assist in the
implementation of or to clarify the prior order . See id § 9. 006(a) (emphasis
added),, However, a court may not amend, modify, alter, or change the
division of property made or approved in the decree of divorce. See id §
9.007(a),
Her e, the trial court relied upon the Interim Order, when it entered the
Order ,1 Under the Decree, Relator was only required to pay Petitioner
$4,000 a month, Under the Inter im Order , Relator was required to make one
1
The trial court's reliance on the Interim Order is also apparent fr om the lack of evidence
to substantiate the appointment of a receiver ,as Texas law requires . See Harr ington v..
Schuble, 608 S.,W.,2d 25.3, 256 (Tex., Civ.. App. 1980).,
8
payment for $15,000 and a payment of $10,000, or pay $6,000 a month,
depending on whether the property was listed for sale.
This 50% to 250% increase in the amount due monthly to satisfy
Relator's debt obligations "amends, alters or changes the actual, substantive
property division made or approved in the divorce decree." Tex, Fam, Code
Ann § 9..007, Thus, "the order is beyond the trial court's power and is
unenforceable." See Everett v Everett, 421 S.,W,3d 918, 921 (Tex, App.,—El
Paso 2014, no pet); see also In re R F G , 282 S W.3d 722, 728 (Tex.,
App,—Dallas 2009, no pet ) (holding that a clarifying order amending a debt
obligation violates the statute) The increased monthly payments mean that
the Petitioner will receive more in value than the $509,000 debt obligation
set forth in the Decree based on the time value of money,, See O'Carolan v
Hopper, 71 S,W,3d 529, 534 (Tex. App.—Austin 2002, no pet. hist,,)
("Furthermore, the time value of money lessens the worth of support payable
over twenty-four months as compared to a lump sum realized from a sale of
the property ,"); see also Carl J Battaglia, MD, PA v Alexander , 177
S,W.3d 893, 907 (Tex, 2005),
9
B. Petitioner Failed to Present the Necessary Evidence to
Support the Trial Court's Decision to Grant the Petitioner's
Request for an Appointment of a Receiver.
Without waiving the argument that the Court lacked author ity to enter
the order to appoint a Receiver ,Relator argues that even if the Interim Or der
is enforceable, Petitioner failed to prove the predicate facts for the
Respondent to appoint a receiver , The Interim Order provides that as the
factual basis for the Application to Appoint a Receiver (pursuant to the
Interim Order) Petitioner must provide proof to Relator's counsel and to the
Court that Relator failed to deposit or wire the money (before a receiver may
be appointed),. Ex. C, P . 2,
At the hearing on the request to appoint the Receiver, the only
evidence that was before the trial court was regarding attorney's fees.. RR
16, Ln. 23-25, The test for abuse of discr etion is not whether , in the opinion
of the reviewing court, the facts present an appropriate case for the trial
court's action. Downer v Aquamarine Operators, Inc , 701 S,W„2d 238,
241-42 (Tex, 1985), Rather, it is a question of whether the court acted
without reference to any guiding rules and principles, Craddock v Sunshine
Bus Lines, 134 Tex,, 388, 133 S.W.2d 124, 126 (Tex.Comm.App — 1939,
opinion adopted), Another way of stating the test is whether the act was
arbitrary or unreasonable, Smithson v Cessna Aircraft Co , 665 S ,W.2d 439,
10
443 (Tex . 1984), The lack of proof shows an abuse of discretion in the trial
'
court's order, because the trial court actions could not have been guided by
the evidence here, and thus were arbitrary and unreasonable
II.There IsNo Adequate Remedy By Appeal
In determining whether appeal is an adequate remedy, courts consider
whether the benefits of mandamus relief outweigh the detriments,, In re
Jacobs, 300 S,W,3d 35, 40 (Tex, App —Houston [14th Dist ] 2009, orig,
proceeding), Appeal is not an adequate remedy when the appellate court
would not be able to cure the trial court's error In re Weekley Homes, LP ,
295 S.W,3d 309, 322 (Tex, 2009) (orig, proceeding). As this balance
depends heavily on circumstances, the analysis is guided by principles rather
than simple rules that treat cases as categories , In re McAllen Med Ctr , Inc.,
275 S,,W,3d 458, 464 (Tex,2008) (orig, proceeding). Typically, mandamus
relief is appropriate when a trial court issues an order after its plenary power
has expired,, In re Brookshire Grocery Co., 250 S.W,3d 66, 68 (Tex, 2008)
(orig,, proceeding); see In re Sw. Bell Tel Co , ,35 S.W„3d 602, 605 (Tex.
2000) (reasoning that mandamus is proper if a trial court issues an order
beyond its jurisdiction) ,
The Fort Worth Court of Appeals recently held that mandamus was
proper when a court entered an order that violated Section 9,007 of the
11
Texas Family Code See In re WL W , 370 S.W,3d 799, 807 (Tex. App —
Foit Worth 2012, mandamus denied). A trial court lacks subject-matter
jurisdiction to enter an order that divides community property in a manner
different than what is provided for in a final decree, Id Given that the trial
court had no jurisdiction to enforce the Interim Order, there is no adequate
remedy by appeal for Relator, Moreover, Relator may lose any interest he
has in the Property by the time a final, appealable judgment is entered in this
case. Respondent has ordered that the Property be sold at a fixed price,
which may be well below its market value, and Relator stands to lose any
money that he might have otherwise been entitled to
PRAYER
Respondent did not have the authority to enter the complained of
Order. However, in the unlikely event that the trial court did, the Court
abused its' discretion because Petitioner failed to present the evidence
required to obtain her requested relief For the foregoing reasons, this Court
should issue a writ commanding Respondent to vacate the Or der ,
12
Respectfully submitted,
LAW OFFICES OF FRANK SHOR
/s/ Frank Shor _
FRANK SHOR
State Bar No,. 18294700
1620 E. Belt Line Road
Canollton, Texas 75006
(972) 242-8887
(972) 446-7976 FAX
FiankShorLawFiim@gmail com
Attorney for Relator
CERTIFICATION
Icertify that Ihave reviewed all of the factual allegations in the
foregoing petition and conclude that every factual statement in the petition is
supported by competent evidence, which is included herein as part of the
appendix and the reporter's record,
/s/ Frank Shor_
FRANK SHOR
CERTIFICATE OF COMPLIANCE
Icertify that the foregoing document contains 2622 words total, and
was prepared in Microsoft WORD using 14-point typeface for body text and
12-point for footnotes , In making this certificate of compliance, Iam r elying
on the WORD count pr ovided by the softwar e used to pr epar e the document,,
/s/ Frank Shor _
FRANK SHOR
CERTIFICATE OF SERVICE
Icertify that a true and correct copy of the for egoing Petition for Wr it
of Mandamus was served via first class mail on Respondent and via
13
electronic service on the Real Party in Interest on the 3r d day of November ,
2015, upon:
Respondent: Honorable Susan Rankin
Judge of 254th Judicial District Court of
Dallas County, Texas
600 Commerce Street
Dallas, Texas 75202
(214) 653-6741
Real Party in Interest: Mary M. McCafferty
Attorney for Mary Micheline McCafferty:
Reagan K. Vernon
State Bar No., 24081192
Koons Fuller, P.C
1717 McKinney Avenue,Suite 1500
Dallas, Texas 75202
(214) 871-2727
Reagan@koonsfuller.com
Is/Frank Shor
FRANK SHOR
14
APPENDIX
Exhibit A: Order on Motion for Appointment of Receiver
Exhibit B: Interim Order on Petition for Enforcement
Exhibit C: Agr eed Final Decr ee of Divorce
Exhibit D: Petition for Enfor cement of Pr operty Division and Petition for
Breach of Contract
Exhibit E: Second Amended Petition for Enforcement of Property
Division and Petition for Br each of Contr act and for
Enforcement of Interim Order on Petition for Enforcement
Exhibit F: Relator 's Response to (Anticipated) Application for Receiver
Exhibit G: Plea to the Jurisdiction
Exhibit H: Reporter's Record
15
EXHIBIT A
CAUSE NO. 08-05932
MARY M. MCCAFFERTY, INTHE DISTRICT COURT
ALANA MCCAFFERTY, AND
AMANDA MCCAFFERTY
V. 254th JUDICIAL DISTRICT
JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS
ORDER ON MOTION FOR APPOINTMENT OF RECEIVER
On the date indicated below, the Court considered the Motion fox Appointment of Receiver
of Mary M,, McCafferty for the immediate appointment of 'a receiver to take charge and possession
of property located at 14327 Hughes Lane, Dallas, Texas 75254.. The Court, after hearing
pleadings, evidence, and ar gument of counsel, is of the opinion that proper gr ounds exist for the
immediate appointment of a receiver .
The Court finds that Eve Sullivangad Shelley T illery with Allie Beth Allman are qualified
to serve as Receivers and are registered voters in Texas ,
IT IS THEREFORE ORDERED that Eve Sullivan and Shelley Tillery are appointed
Receiver to take char ge and possession of the pr operty and all impr ovements locatedthereon at lot
40, block 1/8 175, Williamsburg at Preston, an Addition to the City of Dallas according to the plat
thereof, recorded in Volume 78090, Page 1397, Map records of Dallas County, Texas, and more
commonly known as 14327 Hughes Lane, Dallas, Texas 75254. The necessity of a bond by
Receiver is waived. ÿ ÿ . rs ij
* jSlo
t /
(ZUfaWv JfM w ft*-
IT IS FURTHER, ORDERED that Er4 Sullivan
fta
Shelley Tillery are authorized to
manage, control, and dispose of the property as they see fit intheir sole discretionÿ; ÿcc PROVIDE 60-DAY NOTICE, THEPARTY IS ORDEREDTO GIVENOTICE OF THE CHANGE
ONOR BEFORE THE FIFTHDAYAFTER IHEDATE IHAT THE PARTY KNOWS OF THE
CHANGE.
IHEDUTYTOFURNISHIHIS INFORMATION IOEACHOTHERPARTY,THECOURT,
AND 1HESTATE CASEREGISTRY CONTINUES AS LONGAS ANY PERSON, BY VIRTUE OF
THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO
POSSESSION OP OR ACCESS TO A CHILD
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH
OTHER.PARTY, THE COURT,AND THE STATECASEREGISIRYWTIH THE CHANGEINTHE
REQUIRED INFORMATION MAY RESULT IN FURTHER L2TTGAIION TO ENFORCE THE
ORDER, INCLUDING CONTEMPT OF COURT.. A FINDING OF CONTEMPT MAY BE
PUNISHEDBY CONFINEMENI INJAIL FORUP TO SIX MONTHS,A FINE OP UPTO $500 FOR
EACHVIOLATION,AND AMONEY JUDGMENT FORPAYMENI OF ATTORNEY'S FEESAND
COURT COSTS.
Notice shall be given to the other paity by deliveiing a copy of the notice to the party by
registered or certified mail, returnreceipt requested, Notice shallbe given to the Court by delivering a
copy of thenotice either inpersonto the cler k of this Court or by r egistered or certified mail addressed
to the clerk.Notice shallbe given to tbe state case registrybymailing a copy of the notice to State Case
Registry, Central File Maintenance, P..O. Box 12048, Austin, Texas 78711-2048..
\ WARNINGS TO PARTIES:FAILURETO OBEY A COURT ORDER FOR CHILD SUPPORT
J ORFOR POSSESSIONOF OR ACCESS TO A CHILDMAY RESULT INFURTHERLITIGATION
TO ENFORCEIHEORDER, INCLUDINGCONTEMPTOF COURT. A FINDINGOF CONTEMPT
MAY BEPUNISHEDBY CONFINEMENT INJAIL FORUP 10 SDC MONTHS,A FINEOF UP TO
£500 FOREACHVIOLATION, ANDAMONEYJUDGMENIFORPAYMENTOF ATTORNEY'S
FEES AND COURT COSTS,,
FAILURE OF A PARTY IOMAKEACHILDSUPPORIPAYMENTTO THE PLACEAND
INTHE MANNER REQUIRED BY A COURT ORDER MAY RESULT INTHE PARTY'S NOT
RECEIVING CREDIT FOR MAKING THE PAYMENT:
FAILUREOF APARTYTOPAYCHILD SUPPORTDOESNOT TUSTIFYDENYINGTHAT
PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD, REFUSAL BY A
PARTY TOALLOW POSSESSIONOFOR ACCESS IOA CHILD DOESNOTJUSTIFY FAILURE
TO PAY COURT-ORDERED CHILD SUPPORI 10 THAT PARTY
Division ofMaritalEstate
Tbe Court finds that tbe following is a just and right division of tbe parties' marital estate,
having due r egard for the rights of each party
FINAL DECREE OF DIVORCE - Page 15
/
MaritalResidence
IT IS FURTHER ORDERED AND DEGREED that the property and all improvements
located thereon at lot 40 block 1/8175, Williamsburg At Preston An Addition to the City of Dallas
According to the Plat thereof recorded in Volume 78090 Page 1397, Map Records of Dallas County,
Texas, and more commonLy known as 14327 Hughes lane Dallas, Texas 75254, hereinafter
"Property," shall be sold under the following terms and conditions:
1. The JOHN JEFFREY McCAFFERTY shall list the pr operty with a duly licensed r eal
estate broker having sales experience in the area wher e the property is located,
2., The property shall be sold for a price as determined by JOHN JEFFREY
McCAFFERTY,, MARY MICHELINE McCAFFERTY shall receive $509,000 as her share of the
community property To ensure compliance of the monies due MARY MICHELINE
McCAFFERTY, title to the Properly shall not transfer until such time as MARY MICHELINE
McCAFFERTY has received her community property due or contemporaneous with a closing of the
Property,, XT IS ORDERED MARY MICHELINE McCAFFERIY shall remove her name flora the
title to the Property upon receipt of her community property due., IT IS ORDERED MARY
MICHELINE McCAFFERTY shall sign a Special Warranty Deed removing her name flora title to
the Property contempor aneous with the receipt of her share of the community property described
herein.
ÿ 3. JOHN JEFFREY McCAFFERTY shall continue to make all payments of principal,
/ interest, taxes, and insurance on the property during the pendency of the sale, and JOHN JEFFREY
McCAFFERTY shall have the exclusive right to enjoy the use and possession of the premises until
closing, All maintenance and minor repairs necessary to keep the property in its present condition
shall be paid by JOHN JEFFREY McCAFFERTY ,
4. The net sales proceeds (defined as the gross sales price less cost of sale and full
payment of any mortgage indebtedness or liens on the property) shall be distributed as follows:
a,. $509,000 to MARY MICHELINE McCAFFERTY. (The parties agree the
$509,000 is compromised of Wife's share of the community property of $434,000
from the equity of the marital residence, $45,000 to help her pay her credit cards in
her name, $15,000 towards ALANA NICHOLE McCAFFERTY'S automobile and
$15,000towardsMARYMICHELINEMcCAFFERTY automobile).. Notwithstanding
the forgoing language, JOHN JEFFREY McCAFFERTY shall be r eimbursed from the
$509,000 due MARYMICHELINEMcCAFFERIY limitedto the following amounts:
1 Monies paid Wife by Husband after1 date of divorce as an
advance on her $509,000,. The advance on the $509,000 shall
be defined by the amount Husband pays Wife after divorce in
FINAL DECREE OF DIVORCE - Page 16
)
the contemplated amount of $4000 per' month payable each
15th of the month, The parties hereby agree the intent of the
parties is Wife havemonies untilshe receives her share of the
community property from JOHN JEFFREY McCAFFERTY;
and
2. Health insurance payments paid by Husband for Wife after
divorce, and,
3. Only in the event ALANA McCAFFERTY elects to keep the
blackVolvo, then $25,000 shall bededucted from the $509,000,,
4 No other deductions from the $509,000 shall be allowed;
b. Any balance of the net proceeds from the sale of the Pr operty shall be paid to
JOHN JEFFREY McCAFFERTY IT IS ORDERED JOHN JEFFREY
McCAFFERTY may exercise his option to buy the Property , In the event JOHN
JEFFREYMcCAFFERTY exerciseshisright to buy the Property,MARYMICHELINE
McCAFFERTY nevertheless shall receive her share of the community property as
identified inparagraph 4 (a) of the par agraph titled "Marital Residence" but subject to
said deductions identified therein IT IS ORDERED MARY MICHELINE
McCAFFERTY shall cooperate in the refinancing or purchase of the marital r esidence
by JOHN JEFFREY McCAFFERTY in the event he chooses to exercise the option to
buy
c. It is the agreement of the parties that JOHN JEFFREY McCAFFERTY shall pay
MARY MICHELINE McCAFFERTY four thousand dollars ($4,000,00) per month
untilthe Pr operty is sold oi she r eceives her1share of the community property identified
herein and such $4,000,00 per month shall be an offset against the $509,000 due
MARY MICHELINE McCAFFERTY,,
Property ofHusband
IT IS ORDERED AND DECREED that the husband, JOHN JEFFREY McCAFFERTY, is
awarded the following as his sole and separate property, and the wife is divested of all light, title,
interest, and claim in and to that property:
H- l. All stocks and ownership of Abacus Crane and Hoist, a division of Abacus
Equipment Incorporated, and Abacus Equipment Incorporated which shall delude but not limited
to all stocks, furniture, fixtures, machinery, equipment, inventory, cash, receivables, accounts, goods,
and supplies; real property, all personal property used in connection with the operation of the
business; and all rights and privileges, past, present, or future, arising out of or in connection with
the operation of the business and shall include the real estate commonly known as 1805 John
FINAL DECREE OF DIVORCE Page 17
)
)
Connaily Cairollton Texas 75006 more particularly described as set forth in Exhibit A, attached
hereto and incorporated by reference.
H-2 All householdfurniture, furnishings, fixtures, goods, art objects, collectibles, appliances,
and equipment inthe possession of the husband or subj ect to his sole control including but not limited
to the following:
Laundry room: Kenmore washer and dryer;
Dining Room: 3 Pictures;
Garage: contents and tools;
Kitchen and Pantry: Marble Tables, 8 leather chairs, bar stools, brass table, painting, T V;
Den: Sofa, 2 chairs, end tables, mirror, brass lamps, bar glasses, liquor, stereo, Sony TV and
Surround sound system;
Game Room: Brunswick Pool I able;
Master Bedroom: King bed, dresser, desk, 4 chairs, 2 end tables, IV, coffee table, 2 night
stands, 5 lamps, 3 paintings;
Exercise Room: 4 exercise machines;
Upstairs 3 Bedrooms: 2 queen beds, lamps, 4 chairs;
Other :Dell Laptop computer, entry table with mirror, plants, vases, minor;
Living Room: square carpet, two couches, one table;
Yard: 2 tables, chairs, bar stools
Office: desk, drafting table, copying machine, fax, credenza, 3 chairs, computer with
engineering program, miscellaneous office items..
H-3 , All clothing,jewelry, and other personal effects in the possession of the husband or
subject to his sole control
H 4.. All sums of cash in the possession of the husband or subject to his sole control,
including funds on deposit, together with accruedbut unpaid interest, inbanks, savings institutions, or
other financial institutions, which accounts stand in the husband's sole name or from which the
husbandhas the sole right to withdraw funds or which are subject to the husband's sole control
H-5. All sums, whether matured or' unmatured, accrued or unaccrued, vested or otherwise,
together with all increases thereof, the proceeds therefrom, and any other rights r elated 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-6 . All individual retirement accounts, simplified employee pensions, and annuities in the
husband's name, unless otherwise stated herein to the contrary including but not limited to the
following:
Compass Bank IRA 863585
Compass Bank IRA 1000507128
FINAL DECREE OF DIVORCE - Page 18
] Compass Bank IRA 10028858847
Compass Bank IRA 2000002673
Compass Bank IRA 2000020193
Compass Bank IRA 0000857242
InwoodBank IRA S6595
H-7 . All inter ests and ownership in Conseco Annuity Acct # 0N266767;
H-8., All policies of life insurance (including cashvalues) insuring the husband's life unless
expr essly stated herein to the contrary which shall includebut not be limited to the following:
Berkshire Life/ Guardian L0874706
Prudential Life 93 138 540
Prudential Life 38 853 834
Prudential Life 61 082 147
Prudential Life 38 995 500
H-9 All brokerage accounts, stocks, bonds, mutual funds, and securities r egistered inthe
husband's name, together with all dividends, splits, and other rights and privileges in connection with
them, including but not limited to: Abacus Crane and Hoist, a division of Abacus Equipment
Incorporated, and Abacus Equipment Incorporated,
H-10 The 2000 FordF350Truck,VIN# 1GCGC34RGYR153859, inPetitioner'spossession,
together with all prepaid insurance, keys, and title documents
H-ll. The 2002 GMC Denali, VIN# 1GKFK66U325278636, inRespondent's possession,
together with all pr epaid insurance, keys, and title documents.,
Property of Wife
IT IS ORDERED AND DECREED that the wife, MARY MICHELINE McCAFFERTY, is
awarded the following as her sole and separate property, and the husbandis divested of ah right, title,
interest, and claim in and to that property:
W- 1. $509,000 due as her share of the communityProperty underthe terms more particularly
described inthe paragraph aboveentitled "Marital Residence" andsubject to the deductions described
therein,
W-2 All householdfurniture, furnishings, fixtures, goods, art objects, collectibles, appliances,
and equipment inthe possession of the wife or subject to her sole control IT IS ORDERED MARY
MICHELINEMcCAFFERTY shall be entitled to enter' 14327 Hughes Lane, Dallas, Texas to retrieve
any other personal property remaining at the Hughes LaneDallas r esidence not all ready r emoved by
her The parties shall agree on a time to remove the remainder of her personal property .
FINAL DECREE OF DIVORCE - Page 19
W-3 . All clothing,jewelry, and othei personal effects inthe possession of the wife or subject
to her sole control
W- 4 All sums 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, includingbut not limited to:
ankof erica Acct#W 8.360
caACcrrÿSKhÿSSÿ 0
W-5 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 wife's past, present, or future employment unless otherwise statedherein to the contraiy,
W-6 All individual retirement accounts, simplified employee pensions, annuities, and
variable annuity life insurance benefits in the wife's name unless otherwise stated herein to the
contrary
W-7 All insurance,pensions,retirement benefits, and other benefits arising out of the wife's
membership in any union unless otherwise statedherein to the contrary..
W-8 All policies of life insurance (including cash values) insuring the wife's life.
Liabilities
ITIS ORDERED AND DECREED that the husband, JOHN.JEFFREY McCAFFERTY, shall
pay, as a part of the division of the estate of the parties, and shall indemnify andholdthe wife and her
property harmless from any failure to so discharge, these items:
H-l The balance due, including principal, interest, tax, and insurance escrow, on the
promissory note executed by JOHN JEFFREY McCAFFERTY, in the original principal sum of
$7 75,000 dated August 25,2003, payable to WAMU and/or assignee, and secur ed by deed of trust on
the real properfy awarded in this decree to the husband, whichis recorded inDeed of Trust Records of
Dallas County, Texas on the pr operty commonly known as 14327 Hughes Lane, Dallas,Texas 75254.
H-2. The balance due, includingprincipal, interest, andallother charges, on the promissory
note payable to lender and given as part of the purchase price of and secured by a lien on the motor
vehicles awarded to the Husband, if any.
FINAL DECREE OF DIVORCE - Page 20
H-3 . Any and all debts, charges, liabilities, and other obligations incurred solely by the
husband from and after March 26, 2008, including but not limited to their respective credit cards and
attorney fees, unless express provision is made in this decree to the contrary.
H-4 The following specific debts, charges, liabilities, and obligations, unless express
provision is made herein to the contrary:
American Express xxx 92005 with an approximate balance of $38,439 as of 9/10/2008;
Capital One xxx 0502 with an approximate balance of $4,899
Citibank Visa xxx 0083 with an approximate balance of $22,567 as of 4/10/09;
Bank of America xxx 549 1 with an approximate balance of $9,529 as of 4/10/09;
Chase Visa xxx 1887 with an approximate balance of $15,439 as of 4/10/09;
Chase Visa xxx 75 79 with an approximate balance of $9626 as of 4/10/09;
Bank of America (MC)xxx 7252 with an approximate balance of $32,825 as of 4/10/09;
First Equity Visa xxx 8448 with an approximate balance of $4183 as of 4/10/09;
Chase Visa xxx 5459 with an approximate balance of $19,694 as of 4/10/09
GMCard xxx 0169 with an approximate balance of $20,20515 as of 4/10/09;
Capital One Visa xxx 8912 with an approximate balance of $2,116
Advanta(MC) xxx 8014 with an approximate balance of $18607 as of 4/10/09;
Chase Visa xxx 5159 with an approximate balance of $24,035 as of 4/10/09
Chase Visa xxx 0601 with an approximate balance of $16,895 as of 4/10/09
* The appr oximate total of the above cr edit card liability is $248,662.00.
H-5 All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to
become due including electricity, gas, water, phone, cable, sewage on the real and personal property
awarded to the husband in this decree unless express provision ismade in this decree to the contrary ,.
H-6. Any and all debts held in the individualname of the Husband unless expressly stated
otherwise herein
H-7 Any and all debts or liabilities associated with Abacus Crane and Hoist, a division
of Abacus Equipment Incorporated, and Abacus Equipment Incorporated and any
other corporation in Husband's name.
H-8 Any and all debts due "The IIMcCafferty Trust" and debts due "B .J. McCafferty
Trust" The Court finds JOHN JEFFREY McCAFFERTY has represented to
MARY MICHELINE McCAFFERTY that the Trusts identified herein shall not
demand payment of any debts until MARY MICHELINE McCAFFERTY has been
paid in fhll her share of the community property due under this decree..
H-9 Any attorneys' fees incurred by JOHN JEFFREY McCAFFERTY;
FINAL DECREE OF DIVORCE - Page 21
5 1 1
.1 )
) H-10 Any balance due Shelton School
H-ll Reimbursement of moving expense incurred by MARY MICHELINE
McCAFFERTY on January 20, 2009 JOHN JEFFREY McCAFFERTY shall pay
MARY MICHELINE McCAFBERIY within thirty days (30) of request by MARY
MICHELINE McCAFFERrY..
H-l2 Fifty (50 %} per cent of medical,dental, optical, and counseling for the childrensince
August 10, 2008 to the present.. Any payments under this paragraph by JOHN
JEFFREY McCAFFERTY to MARY MICHELINEMcCAFFERTY shall be an offset
against any child support due or paid during this period
ITIS ORDERED AND DECREED that the wife, MARY MICHELINEMcCAFFERTY, shall
pay, as a part of the division of the estate of the parties, andshall indemnify and holdthe husbandand
his property harmless fiom any failure to so discharge, these items:
W- 1, The balance due, includingprincipal, interest, and all other charges, on any credit car ds
inMARYMICHELINEMcCAFFERXY name or1any other cr edit cards wherein MARYMICHELINE
McCAFFERTY has incurred credit card charges whether as principal party on a credit card or as
secondary party to a credit card and including but not limited to the following:
a, MasterCard Acct 5424 1806 3044 7602
\ b.. Visa Acct xxxx xxx xxxx 1:375
J c Visa Acct xxxx xxx xxxx. 0086
W-2 . Any and all debts, char ges, liabilities, and other obligations incurred solely the wife
fiom and after March 26, 2008, including credit cards and attorney fees, unless express provision is
made inthis decree to die contrary,
W-3.. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to
become due including electricity, gas, water, phone, cable, sewage on the real and personal property
awarded to the wife in this decree unless express provision is made in this decree to the contrary,.
W-4. Any and all debts held in the individual name of the wife unless expressly stated
otherwise herein
W-5 Any attorneys' fees incurred by MARY MICHELINE McCAFFERTY..
FederalIncome Taxes
ITIS ORDERED AND DECREED for the calendar year 2.008, the parties shall file ajoint tax
FINAL DECREE OF DIVORCE - Page 22
)
1
) return. Any deficiencies for the tax year 2008 shall be paid by TOHN JEFFREY McCAFFERTY and
any refunds shall be the separate property of ' JOHN .JEFFREY McCAFFERTY..
IT IS ORDERED AND DECREED MARY MICHELINE McCAFFERTY shall be solely
responsible and hold JOHN JEFFREY McCAFFERTY harmless for any federal income taxes,
penalties, andinterest on any incomeearned attributable to MARY MICHELINE McCAFFERTY on
or before December 3 1, 2008
Injunctive Relief
The permanent mutual injunction granted below shall be effective immediately and shall be
binding on JOHN JEFFREY McCAFFERTY and MARY MICHELINE McCAFFERTY on their
agents, servants, employees, and attorneys; and on thosepersons inactive concert orparticipation with
them who receive actual notice of this order by personal service or otherwise,.
IT IS ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY and MARY
MICHELINE McCAFFERTY are permanently enjoined from:
Maligningthe other parent inthe auditorypresence of the child, nor permit any other individual
or family member from maligning the other par ent inthe pr esence of the child
Petitioner and Respondent waive issuance and service of the writ of injunction,by stipulation
or as evidencedby the signatures below.. IIIS ORDERED that Petitioner and Respondent shall
be deemed to be duly served with the writ of injunction
J Tax Exemptions
IT IS FURTHER ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY shall
have the right, in accordance with section 152(e) (2) of the Internal Revenue Code of 1954, as
amended, to claimthe dependency exemptions for1the child, ALANA NICOLEMcCAFFERTY, for
the purposes of federal income taxes for 2009 and all subsequent years..
IT IS FURTHER ORDERED AND DECREED that MARY MICHELINEMcCAFFERTY
and TOHN .JEFFREY McCAFFERTY shall sign any tax forms necessary to claimthe child as JOHN
.JEFFREY McCAFFERTY's respective tax dependant including but not limited to tax form 8332.
Court Costs
ITIS ORDERED AND DECREED that costs of court are to be bomeby the party who incurred
them
Discovery Retention Requirement
ITISORDERED AND DECREEDthat theparties andtheir' respective attorneys are discharged
FINAL DECREE OF DIVORCE - Page 23
)
from the requirement of keeping and storing the documents produced in this case in accordance with
rule 191 4(d) of the Texas Rules of Civil Procedure.
Decree Acknowledgment
Petitioner, JOHN JEFFREY McCAFFERTY, and Respondent, MARY MICHELTNE
McCAFFERTY, each acknowledge that before signing this FinalDecree of Divorce they haveread
this Final Decr ee of Divorce fully and completely, have had the opportunity to ask any questions
regarding the same, and fully understand that the contents of this FinalDecree of Divorce constitute
a full and complete resolution of this case Petitioner and Respondent acknowledge that they have
voluntarily affixed their signatur es to this Final Decree of Divorce, believing this agr eement to be
ajust and right division of the marital debt and assets, and state that they have not signed by virtue
of any coercion, any duress, or any agreement other than those specifically set forth in this Final
Decr ee of Divorce ,
Indemnification
Each party represents and warrants that he or she has not incurred any outstanding debt,
obligation, or other liability on 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 assuming 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 assuming the debt,
obligation, liability, act, or omission of the other party against any such claim or demand, whether
or* not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or
omission of the other party and hold him or her harmless from all damages r esulting from the claim
or demand
Damages, as used inthis provision, includes any r easonable 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 a judgment of any court of competent jurisdiction or inaccordance 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 thr eatened or instituted against either party that might constitute the
basis of a claim for indemnity under this decree
No Longer Attorney ofRecord
FINAL DECREE OF DIVORCE - Page 24
V
"N*
)
IIIS ORDERED Attorney for Petitioner is hereby released as attorney of record after the
Decree of Divorce is signed by the Court
Clarifying Orders
Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves the
right to make orders necessary to clarify and enforce this decree,
ReliefNot Granted
IIIS ORDERED AND DECREED that all relief requested in this case and not expressly
gr anted is denied
Date ofJudgment
SIGNED on _ _£Z
__ ,2009,,
A
Associate Judge
iam.lyI.SsU-' Courto
JUDGE
)
FINAL DECREE OF DIVORCE - Page 25
EXHIBIT D
( f
>
'
NO 08 05932 R
MARY M. MCCAFFERTY, IN THE DISTRICT COURT
ALANA MCCAFFERTY and
AMANDA MCCAFFERTY
V. 254TH JUDICIAL DISTRICT
JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS
PETITION FOR ENFORCEMENT OF PROPERTY DIVISION
AND PETITION FOR BREACH OF CONTRACT
Discoveiy in this case is intended to be conducted undei level 2 of rule 190 of the
Texas Rules of Civil Procedure
2 This suit is brought by Mary M McCafferty, Alana Nicole McCafferty, and
Amanda McCafferty, Petitioners Respondent, John Jeffrey McCafferty, should be served
with process at 14327 Hughes Lane, Dallas, Texas, or at whatever location he may be found.
3 On July 17, 2009 this Court tendered an "Agreed Final Decree of Divorce" a copy
of which is attached hereto as Exhibit "A " The Decree provides in relevant part for the future
action as follows: "IT IS FURTHER ORDERED AND DECREED that the property and all
improvements located thereon at . ,14327 Flughes Lane, Dallas, Texas 75254, hereinafter
"Property," shall be sold under the following terms and conditions: 1 The [sic] JOHN
JEFFREY McCAFFERTY shall list the property with a duly licensed real estate broker having
sales experience in the area where the property is located "
Petitioner was the Respondent and Respondent was the Petitioner in the prior
proceedings
4. Respondent has failed to comply with the decree described above as follows:
V'Fag&T
C-
JOHN JEFFREY MCCAFFERTY to date has not listed the piopeity at 14327 Hughes
Lane, Dallas, Texas for sale
5. Petitioner Mary M McCafferty prays that the Court order Respondent to comply
with the terms of the divorce decree by a date certain or order that a receiver be appointed to sell
the proper./ in compliance with the terms of the decree..
6. Additionally, under the terms of the Decree, it was the agreement of the parties
that "JOHN JEFFREY MCCAFFERTY shall pay MARY MICHELINE MCCAFFERTY four
thousand dollars ($4,000 00) per month until the Property is sold or she receives her share of the
community property identified herein " Respondent has failed to pay the $4,000 00 per
month as agr eed and Petitioner r equests enfor cement of this provision.
7 JOHN JEFFREY MCCAFFERTY agreed under the Divorce Decree to pay 50%
of any college room and board of the children not covered by the Texas Tomorrow Fund while
attending college full time from September through May Additionally JOHN JEFFREY
MCCAFFERTY agreed to pay $500 per month to each child while attending undergraduate
college full time, except duiing the summer session. JOHN JEFFREY MCCAFFERTY has
failed to pay these expenses, and Petitioners request that he be ordered to pay these funds and
that Petitioners have judgment against Respondent for these expenses
8. In the Final Decree of Divorce, the Court found that the 2005 White Volvo was
Amanda McCafferty's separate property and that she should have clear title to the vehicle upon it
being paid off Amanda McCafferty has never received the title to the vehicle and requests that
JOHN JEFFREY MCCAFFERTY be ordered to provide proof of payment of the vehicle and that
the title be provided to her
f c
9 All conditions precedent have been performed or have occurred Petitioners
request that, if the Court finds that any part of the order sought to be enforced is not specific
enough to be enforced, the Court enter a clarifying order restating the terms ofth.Q order, decree,
or judgment in a manner specific enough to allow enforcement and specifying a reasonable time
within which compliance will be required
10 It was necessary to secure the services of Holly R Monk, a licensed attorney, to
enforce and protect the rights of Petitioners Respondent should be ordered to pay reasonable
attorney's fees, expenses, and costs, and a judgment should be rendered in favor of the attorney
and against Respondent and be ordered paid directly to the undersigned attorney, who may
enforce the judgment in the attorney's own name. Petitioner requests postjudgment interest as
allowed by law.
Petitioner prays that citation and notice issue as required by law, that the Court grant the
Petition for Enforcement of Property Division and Petition for Breach of Contract, for attorney's
fees, expenses, costs, and interest, and for all further relief authorized by law
Respectfully submitted,
Bailey & Galyen
4131 N. Cental Expressway, Suite 860
Dallas, TeStte 75204 ]
. '''WfifiphT6fÿnforce.nfi;i[it ...........
.....
..... , '727 7 _ . .. 7£age_3
Form #329 - NOTICE OF HEARING
CAUSE NO PF-08-05932 SERVICE OFFICER: ATTY
Clerk's fees $8 00
STYLE Officer's fees collected $
INTHE MATTER OF THE MARRIAGE OF Officer's fees not collected sxxx
JOHN MCCAFFERTY Costs not complied with $
vs.
Affidavit Inability to Pay s
MARY MCCAFFERTY
THE STATE OF TEXAS
TO: JOHN JEFFREY MCCAFFERTY
YOU ARE HEREBY NOTIFIED OF A HEARING SET FOR SEPTEMBER 30. 2013 AT 9:30AM IN
THE 254th District Court LOCATED AT 600 COMMERCE STREET PALLAS TEXAS 75202 SEE
ATTACHED
HEREIN FAIL NOT, but of this writ make due return showing how you have executed the same.
WITNESS: GARY FITZSIMMONS, Clerk of the District Courts, Dallas County, Texas..
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at office in the City of Dallas, ON THIS THE
_______
25th DAY OF JULY, 2013
______
Issued at request of: ATTEST: GARY FITZSIMMONS
HOLLY R MONK ÿ\»uiiii//;//Clerk of the District Courts
4131 N CENTRAL EXPRESSWAY SUITK&k) County, Texas
DALLAS TEXAS 75204
r ,Deputy
SACHEEN AÿTTHUNY"""
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.o'clock.
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EXHIBIT E
FILED
DALLAS COUNTY
9/17/2015 3:19:30 PM
FELICIA PURE
DISTRICT CLERK
Jeffery White
CAUSE NO. 08-05932
MARY M,. MCCAFFERTY § m THE DISTRICT COURT
ALANA MCCAFFERTY, AND §
AMANDA MCCAFFERTY §
§
V„ § 254th JUDICIAL DISTRICT
§
JOHN JEFFREY MCCAFFERTY § DALLAS COUNTY, TEXAS
SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISION
AND PETITION FOR BREACH OF CONTRACT AND FOR ENFORCEMENT OF
INTERIM ORDER ON PETITION FOR ENFORCEMENT
Discovery
Discoveiy in this case is intended to be conducted under level 2 of rule 190 of the Texas
Rules of Civil Procedure
Parties
This suit is brought by Mary M, McCafferty, Alana McCafferty, and Amanda McCafferty,
Petitioners.. The last three numbers of Petitioner's driver's license number are 943,, The last three
numbers of Petitioner's Social Security number are 228
Respondent, John Jeffrey McCafferty, should be served with process in accordance with
T exas Rule of Civil Pr ocedur e 21a by serving Counter -Respondent's attorney of r ecor d, Fr ank Shot ,
Law Offices of Frank Shor, 1620 East Belt Line Road, Canollton, Texas 75006
Enforcement
Agreed final Decree of Divorce
On July 17, 2009, this Court tendered an Agreed Final Decree of Divorce providing in
relevant part as follows:
SECOND AMENDED FETITIONFOR ENFORCEMENT OF PROPERTY DIVTSION AND PETITION FOR
BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR
ENFORCEMENT
PAGE 1
I
(
"The Court finds Amanda Lauren McCaffeity shall own as her separate property and shall
have clear title to the 2005 White Volvo VIN#YVIC7911551145 741 uponthe Volvo being
paid oft:
"Additionally, John JeffreyMcCaffeity and Mary Micheline McCaffeity hereby agree to pay
50 % each for any room and board of the children, not covered by the Texas Tomorrow
Fund, while attending undergraduate college full time from September through May IT IS
AGREED the cost for room and board shall not exceed on-campus dormitory room and
board cost.
"Whilethe children are attendingundergraduate college full time, John Jeffrey McCaffeity
and Mary Micheline McCaffeity hereby agree to pay 50% each for the children's health
insurance
"Additionally, John Jeffrey McCaffeity hereby agrees to pay $500 per month to each child,
while attending undergraduate college full time, except during the summer1 session IT IS
AGREED by the parties the children shall pay for their car insurance from the $500 per1
month
"IT IS ORDERED AND DECREED that the husband, John Jeffrey McCaffeity, shall pay,
as apart of the division of the estate of the parties, and shall indemnify and holdthe wife and
her property harmless from any failure to so discharge, these items:
"H-12 Fifty (50%) percent of medical, dental, optical, and counseling for the
children since August 10, 2008 to the present, Any payments under this
paragraphby John Jeffrey McCaffeity to Mary Micheline McCaffeity shall
be an offset against any child support due or paid during this period "
Respondent has failed to comply with the terms of the Agreed Final Decree of Divorce as
follows:
1 Respondent has failed to pay the college expenses for room and board as agreed to
in the Agreed Final Decree of Divorce Petitioner respectfully requests that
Respondent be ordered to pay these funds and that Petitioner s beawaided a judgment
against Respondent for these expenses
2 Respondent has failed to pay for his portion of the children's health insurance
premiums as agreed to inthe Agreed Final Decree of Divorce Petitioner respectfully
requests that Respondent be ordered to pay these funds and that Petitioners be
awar ded a judgment against Respondent for these expenses
SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISIONAND PETITION FOR
BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ONPETITIONFOR
ENFORCEMENT
PAGE 2
I 1
(
3 Respondent failed to pay $500 per month to each child while the children were in
college as agreed to inthe Agreed Final Decree of Divorce Respondent r espectfully
requests that Respondent be ordered to pay these funds and that Petitioners be
awar ded a judgment against Respondent.
4 Respondenthasfailedtopaytiftypeicentofmedical, dental, optical, and counseling
for the children from August 10, 2008 through the entry of the Agreed Pinal Decree
of Divorce.. Petitioner respectfully requests that Respondent be ordered to pay these
funds and that Petitioners be awarded a judgment against Respondent for these
expenses.
5. Respondent has failed to provide Amanda McCafferty with the title to the vehicle
Petitioner requests that Respondent be ordered to provide proof of payment of the
vehicle and that the title be provided to Amanda McCafferty by a date and time
certain
Interim Order on Petition for Enfor cement
On December 18, 2013, this Court rendered an Interim Order on Petition for Enforcement
providing in relevant part as follows:
"2 After the date the house is listed for sale, John Jeffery McCafferty will wire tr ansfer
or direct deposit the sum of $6,000 00 per month on the 15th day of each month to
Mary M.. McCafferty. .
"4 If John McCafferty fails to deposit or wire the money inthe amounts or on the dates
listed above, upon proof pr ovided to his attorney and to the Court, a receiver will
immediately be appointed to list the house at 14327 Hughes Lane, Dallas, Texas for
sale No further court hearings will be necessary to appoint the receiver Provided
that evidence has been provided to John Jeffrey McCafferty's counsel that John
Jeffrey McCafferty has failed to deposit or wire the money inthe amounts and/or on
the dates listed hereinabove, then, in the event, Mary McCafferty's attorney will be
fully authorized by this Order to pr esent an Order Appointing Receiver to the Court
for signature without further notice to or agreement by John Jeffrey McCafferty or
by counsel for John Jeffrey McCafferty"
Respondent has failed to comply with the terms of the Interim Order on Petition for
Enforcement as follows:
SECOND AMENDED PETITIONFOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR
BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ONPETIIIONFOR
ENFORCEMENT
PAGE 3
(
1. Respondent has failed to pay Petitioner the $6,000 00 per month as ordered by the
Couitfor the months of May, Tune, and July 2015 Respondent respectfully requests
that the Court order Respondent to pay the funds owed to Petitioner by a date and
time certain In addition, Petitioner respectfully requests that the Court appoint a
receiver to facilitate the sale of the 14327 Hughes Lane residence
Petitioner was the petitioner and Respondent was the respondent in the prior proceedings
Breach of Contract
Respondent, without just excuse, has demonstrated a clear ,pr esent, and unconditional
intention not to pay Petitioner the funds due to her pursuant to the terms of the Agreed Final Decree
of Divorce As a r esult of this anticipatory breach of contract, Petitioner was forced to cash out a
life insurance policy inPetitioner 's name andincur credit card debt and accruedinter est on such debt
due to delays in Respondent's monthly payments to Petitioner' Petitioner seeks to recover
consequential damages she was subjected to as a result of Respondent's breach of contract
Clarification
Petitioner requests that, if the Court finds that any part of the orders sought to be enforced
is not specific enough to be enforced, the Court enter a clarifying order restating the terms of the
order, decree, or judgment in a manner specific enough to allow enforcement and specifying a
reasonable time within which compliance will be required,
Attorney's Fees
It was necessary for Petitioner to secure the services of Reagan K Vernon and KoonsFuIler,
PC licensed attorneys, to enforce and protect the rights of Petitioner Respondent should be
ordered to pay reasonable attorney's fees, expenses, and costs, and a judgment should be rendered
in favor of the attorney and against Respondent and be ordered paid directly to the undersigned
SECOND AMENDED PETITIONFOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR
BREACH OF CONTRACT AND FORENFORCEMENI OF INTERIM ORDER ON PETITION FOR
ENFORCEMENT
PAGE 4
(
attorney, who may enforce the judgment in the attorney's own name Petitioner requests
postjudgment interest as allowed by law
Prayer
Petitioner prays that citation and notice issue as required by law, that the Court grant the
Petition for Eiiiorcement of Property Division and Petition for Breach of Contract and for'
Enforcement of Interim Order on Petition for Enforcement, for attorney's fees, expenses, costs, and
interest, and for all further relief authorized by law
Respectfully submitted,
KoonsFuller, PC..
1717 McKinney Avenue
Suite 1500
Dallas, Texas 75202
Tel: (214) 871 2727
Fax: (214)8710196
By:_ I :
Reagan K. Vernon
State Bar No., 24081192
reagan@koonsfuller com
Attorney for Petitioner
CERTIFICATE OF SERVICE
Icertify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on September' _13?2015
Reagan K Vernon
Attorney for Petitioner
SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISIONAND PETITION FOR
BREACH OF CONIRACI AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR
ENFORCEMENT
PAGE 5
EXHIBIT F
r r Fl -ED
DALLAS coutlITY
10/1/2015 4:35:22 PM
FELICIA PI 'RE
DISTRICT CLI:RK
ÿ
Adrenna James
CAUSE NO. 08-059,32 R
MARY M. MCCAFFERTY, S INTHE DISTRICT COURT
ALANA MCCAFFERTY and
AMANDA MCOAFFERTY
V. 254th DISTRICT COURT OF
JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS
RESPONSE TO (ANTICIPATED) APPLICATION FOR RECEIVER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, RespondentfCounteÿetitioner, JOHN JEFFREY MCCAFFERTY ,
hereinafter referred to herein as Respondent, and fries this his Response to (Anticipated)
Application for Receiver, and for same would respectfully show the Court as follows:
I.
It is anticipated that Petitioner, Mary M McCafferty is going to present an Application
for the appointment of a r eceiver in this matter Pr esumably this will be based upon the
,
instrument signed by the Court on December 18, 2013 (entitled "Interim Order on Petition for
Enforcement")
II.
Respondent would show the Court that the appointment of a receiver here would be
violative of law, Inthis regard, Respondent would show the following:
A) The Divorce Decree in this case provides in pertinent part as follows:
"MaritalResidence
ITISFURTHER ORDERED AND DECREED that the pr operty andall improvements
locatedthereon at lot 40 block 1/8175, Williamsburg At Preston An Addition to the City
of Dallas According to the Plat thereof recordedin Volume 78090 Page 1397, Map
Records of Dallas County, Texas, and more commonly known as 14327 Hughes Lane
Dallas, Texas 75254, hereinafter "Property" shall be soldunder the following terms and
conditions
Response to (Anticipated) Application for Receiver Page 1 -
(
I The JOHNJEFFREY McCAFFERTY shalllist the property -with a duly licensedteat
estate broker having sales experience in the area where the property is located
2 The property shall besoldfor aprice as determined by JOHNJEFFREY
McCAFFERTY. MARYMICHEL1NEMcCAFFERTY shall receive $509,000. 00 as
her share of the community property To ensure compliance of the monies due MARY
MICHELINE McCAFFERTY, title to the Proper ty .shall not tr ansfer untilsuch time as
MARYMICHELINEMcCAFFERTYhas received her communityproperty due or
contemporaneous with a Nosing of the Property. ITISORDERED MARY
MICHELINEMcCAFPERTYshall remove her name from the title to the Property
upon receipt of her community property due ITISORDERED MARYMICHELINE
McCAFFERTY shall sign a Special Warranty Deedremoving her name from title to
the Property contemporaneous with the receipt of her share of the community
property describedherein
3. JOHNJEFFREY McCAFFERTYshall continue to make allpayments ofprincipal,
interest, taxes andinsurance on the property during the pendency of the sale and
JOHNJEFFREY McCAFFERTY shall have the exclusive right to enjoy the use and
possession of the premises until closing All maintenance and minor repairs
necessary to keep the property in its present condition shall be paid by JOHN
JEFFREY McCAFFERTY
4. The net sales proceeds (defined as the gross sales price less cost of sale andfull
payment of any mortgage indebtedness or liens on the property) shall be distributed
as follows
a $509, 000 00 to MARYMICHELINEMcCAFFERTY (The parties agree the
$509, 000, 00 is comprised (sic) of Wife 's share of the community property of
$434,000.00from the equity of the marital residence, $45,000 00 to help her
pay her credit cards in her name, $15, 000 00 towards ALANA NICOLE
McCAFFERTY's automobile and $15,000 00 towards MARYMICHELINE
McCAFFERTY automobile) Notwithstanding the forgoing language, JOHN
JEFFREY McCAFFERTY shall be reimbursedfrom the $509,000 00 due
MARYMICHELINE McCAFFERIY limitedto the following amounts
1 Monies paid Wife by Husbandafter divorce as an advance on her
$509,000. 00 The advance on the $509,000 00 shall be defined by the
amount Husbandpays Wife after divorce in the contemplated amount
of$4, 000 00per monthpayable each 15th of the month The parties
hereby agree the intent of the parties is Wife have monies until she
receives her share of the communityproperty from JOHNJEFFREY
McCAFFERTY, and
2 Health insurance payments paidby Husbandfor Wife after divorce,
and
3 Only in the event ALANA McCAFEERTY elects to keep the black
VOLVO, then $25,000. 00 shall be deductedfrom the $509,000 00
4 No other deductions from the $509, 000 00 shall be allowed,
b Any balance of the netproceedsfrom the sale of the Property shall be paidto
JOHNJEFFREY McCAFFERTY ITIS ORDEREDJOHNJEFFREY
-
Response to (Anticipated) Application for Receiver Page 2
McCAFFERTYmay exercise his option to buy the Property. In the event
JOHNJEFFREY McCAFFERTYexercises his right to buy the Property,
MARY M1CHELINEMcCAFFERTY nevertheless shall receive her share of
the community property as identified inparagraph 4(a) of the paragraph
titled "MaritalResidence " but subject to said deductions identifiedtherein IT
IS ORDERED MARYMICHELINE McCAFFERTYshall cooperate in the
refinancing or purchase of the marital residence by JOHNJEFFREY
McCAFFERTY in the event he chooses to exercise the option to bÿy
c It is the agreement of the parties that JOHNJEFFREY McCAFFERTY shall
pay MARYMICHELINEMcCAFFERTYfour thousanddollars ($4,000 00)
per month untilthe Property is sold or she receives her share of the
community property identifiedhereinand such $4,000. 00per month shall be
an offset against the $509, 000 00 due MARYMICHELINE McCAFFERY "
B) The instrument signed by the Court on December 18,2013 (entitled "Interim Order
on Petition foi Enforcement") provides as follows:
"i John Jeffrey McCafferty will wire transfer or direct deposit into Mary M
McCafferty 's bank account with Capital One Bankthe following sums
$15,000 00 on November 12, 2015, $10,000 00 on December 15, 2015, and
$10,000 00 on January 15, 2014 John Jeffrey McCafferty anticipates that the
home at 15527 Hughes Lane, Dallas, Texas, will be listedfor sale by February 1,
2014 Untilthe house is listedfor sale, John Jeffrey McCafferty will continue to
pay Mary M McCafferty the sum of $10, 000, 00 on the 15 day of each month
2 After the date the house is listedfor sale, John Jeffery McCafferty will wire
transfer or direct deposit the sum of $6,000 00 per month on the 15th day of each
month to Mary M McCafferty The account number was providedto John Jeffrey
McCafferty in a separate document and will be used by him only for the purpose
of the transfer of the money and no other purpose of any kind John Jeffrey
McCafferty will not share or publish the account number to anyone other than
Bankpersonnel and solely for the purpose of the transfer of the money. John
Jeffrey McCafferty willpay any and all costs associated with the transfer of the
money.
5, Ifthe 15th day of any monthfalls on a Saturday or a Sunday, John Jeffr ey
McCafferty will wire or direct deposit the money into Mary M McCafferty 's
account on the precedingFriday
4 IfJohn Jeffrey McCafferty fails to deposit or wire the money in the amounts or on
the dates listedabove, uponproofprovidedto his attorney and to the Court, a
receiver will immediately be appointed to list the house at 14527 Hughes Lane,
Dallas, Texas for sale Nor further court hearings will be necessary to appoint
the receiver Providedthat evidence has beenprovidedto John Jeffrey
McCafferty *s counsel that John Jeffrey McCafferty has failed to deposit or wire
the money in the amounts and/or on the dates listedher einabove, then, in that
event Mary McCafferty's attorney will be fully authorized by this Order to present
an Order Appointing Receiver to the Court for signature without further notice to
or agreement by John Jeffrey McCafferty or by counselfor John Jeffrey
-
Response to (Anticipated) Application for Receiver Page 3
f
McCafferty.
5 All amounts received by Maty M McCafferty under this Interim Order are to be
credited against the obligations owed by John Jeffr ey McCaffer ty under the
Decree ofDivorce datedJuly 17, 2009. "
C) Family Code § 9 007 provides as follows:
"(a) A court may not amend, modify, alter, or change the division ofproperty made or
approved in the decree of divorce or annulment An order to enforce the division is
limitedto an order to assist in the implementation of or to clarify the prior order and
may not alter or change the substantive division ofproperty
(b) An order under this section that amends, modifies, alter, or changes the actual,
substantive division ofproperty made or approved in afinal decree of divorce or
annulment is beyond the power of the divorce court and is unenforceable "
As the December 18, 2013 instrument amends, modifies, alters and changes the division
of pr operty made and approved in the decree of divorce, that same is beyond the power of the
divorce Court and is unenforceable
WHEREFORE PREMISES CONSIDERED, Respondent respectfully requests that the
Court deny an application for the appointment of a receiver, and for such other and further relief,
at law or equity general or special, to which Respondent may show himself justly entitled.
Respectfully submitted,
LAW OFFICES OF FRANK SHOR
/s/ Frank Shor
Frank Shor
State Bar No 18294700
1620 East Belt Line Road
Caxrollton, Texas 75006
(972) 242-8887 OFC
(972)446-7976 FAX
FrankShorLawFirm@gmail.com
ATTORNEY FOR
TOHN JEFFREY MCCAFFERTY
-
Response to (Anticipated) Application for Receiver Page 4
(
Certificate of Service
I'ias is to certify that a true and correct copy of the above and foregoing was forwarded
via e-frle to Ms. Reagan Vernon, attorney for Petitioner/Counter-Respondent, at 1717 McKinney
Avenue, Suite 1500, Dallas, Iexas 75202,on this the fr day of October, 2015
/$/ Frank Shot
Frank Shoi
-
Response to (Anticipated) Application for Receiver Page 5
EXHIBIT G
FILED
DALLAS COUiHTY
10/9/20151:09:02 PM
FELICIA PI RE
DISTRICT CLIRK
Paul Eagle
CAUSE NO. 08-05932-R
MARY M. MCCAFFERTY, § INTHE DISTRICT COURT
ALANA MCCAFFERTY and §
AMANDA MCCAFFERTY §
V. 254th DISTRICT COURT OF
JOHN JEFFREY MCCAFFERTY § DALLAS COUNTY, TEXAS
FLEA TO THE JURISDICTION
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Respondent/Countex-Petitionei, JOHN JEFFREY McCAFFERTY,
hereinafter referred to herein as "Movant", and files this his Piea to the Jurisdiction and for same
would respectfully show the Court as follows:
L
Ostensibly, Petitioner, Mar y McCafferty, is requesting the Court to appoint a Receiver
for purposes of facilitating the sale of apiece of real estate owned jointly by Petitioner, Mary
McCafferty and Movant
II.
It is further presumed that Petitioner, Mary McCafferty's request (for the application of
the appointment of a Receiver) is predicated upon the instrument entitled "Interim Order on
Petition for Enforcement" and dated December 18, 2013
III.
It will be shown to the Court that the terms of that instrument amends, modifies, alters or
changes the terms of the Movant and Petitioner, Mary McCafferty's Divorce Decree
Plea to the Jurisdiction Pagel
f
IV.
As a result thereof, the instrument entitled "Interim Older on Petition for Enforcement: is
unenforceable. Iherefore, the Court lacks jurisdiction to giant the relief requested in Petitioner,
Mary McCaffeity's application for the appointment of a Receiver
WHEREFORE PREMISES CONSIDERED, Movant prays that the Court deny
Petitioner, Mary McCaffeity's application for the appointment of a Receiver and grant Movant
such other and further relief, at law or in equity, general or special, to which Movant may show
himself justly entitled
Respectfully submitted,
LAW OFFICES OF FRANK SHOR
A/ Frank Shor
Frank Shor
State Bar No 18294700
1620 East Belt Line Road
Canollton, Texas 75006
(972)242-8887 OFC
(972) 446-7976 FAX
FrankShorLawFirm@gmail.com
ATTORNEY FOR IEFF McCAFFERI Y
Certificate of Service
This is to certify that a true and correct copy of the above and foregoing was forwarded
via e-file to Ms Reagan Vernon, attorney for Petitionei/Counter-Respondent, at 1717 McKinney
Avenue, Suite 1500, Dallas, Texas 75202,on this the 3ÿ' day of October, 2015.
A/ Frank Shor
Frank Shot
Plea to the Jui isdiction Page 2
EXHIBIT H
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. DF-08-05932
3 MARY MCCAFFERTY, ET AL IN THE JUDICIAL
4 vs. DISTRICT COURT NO. 254
5 JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS
6
7
8
9
10 STATEMENT OF FACTS
11
12 MOTION TO APPOINT RECEIVER
13
14
15
16
17
18
19 On the 15th day of October, 2015, the following
20 proceedings came on to be held in the above-titled
21 and numbered cause before the Honorable Susan
22 Rankin, Judge Presiding, held in Dallas, Dallas
23 County, Texas .
24 Proceedings reported by computerized stenotype
25 machine .
2
1 APPEARANCES
2
MS. REAGAN VERNON
3 SBOT NO. 24081192
KoonsFuller, P.C.
4 1717 McKinney Avenue
Suite 1500
5 Dallas, Texas 75202
(214) 871 - 2727
6 FOR THE PETITIONER
7
8 MR. FRANK SHOR
SBOT NO. 18294700
9 Law Offices of Frank Shor
1620 E. Belt Line Road
10 Carrollton, Texas 75006
(214) 242 - 8887
11 FOR THE RESPONDENT/ COUNTER PETITIONER
12
13
14
15
16
17
18
19
20
21
22
23
24
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
October 15, 2015
Argument by Ms. Vernon
Argument by Mr .
Response by Ms. Vernon
Response by Mr. Shor
Court's Ruling
PETITIONER'S WITNESSES
REAGAN VERNON
Shor
Direct
14
Court's Ruling on Attorney's Fees
Petitioner Rests and Closes
Argument by Mr . Shor
Argument by Ms. Vernon
Court ' s Ruling .......
...
......
Court Reporter's Certificate..
REAGAN VERNON
Cross
—
.
CHRONOLOGICAL INDEX
VOLUME 1 OF 1 VOLUME
MOTION TO APPOINT RECEIVER
.
.
ALPHABETICAL WITNESS INDEX
Direct
14
Cross
—
VD
—
VD
—
5
8
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12
14
15
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1
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Page Vol.
Vol.
1
Vol.
1
4
1 PROCEEDINGS
2 (October 15, 2015; 8:04 a.m.)
3 THE COURT: Okay. We're here on the — the
4 issue regarding the receivership, correct?
5 MS. VERNON: Yes, your Honor.
6 THE COURT: Okay. So that would be —
7 let's just go ahead and announce — for the record,
8 counsel .
9 MR. SHOR: Judge, I'm Frank Shor here on
10 behalf of respondent/counter petitioner
11 John Jeffrey McCafferty.
12 And, Judge, if Ican just ask for a little
13 more precision. Ibelieve it's an application for
14 receiver predicated upon an instrument labeled "Interim
15 Order" that was signed in December of 2013. That's what I
16 understand we're here on today.
17 THE COURT: Counsel, your appearance for
18 the record and then a comment.
19 MS. VERNON: Reagan Vernon here on behalf
20 of Mary McCafferty, the petitioner in this case. And,
21 yes, it's my understanding that this hearing is to
22 determine the enforceability of that interim order.
23 THE COURT: Are you in agreement with the
24 way that was phrased, Mr. Shor?
25 MR. SHOR: Yes, your Honor.
5
1 THE COURT: Okay. Go ahead and proceed.
2 I'm going to call you Reagan.
3 MS.. VERNON: That's fine, your Honor.
4 THE COURT: Go ahead.
5 MS. VERNON: Your Honor, the interim order
6 in question is enforceable because this is an agreed
7 order. It was agreed to by the parties. It specifically
8 says in the order "the parties agree and it is ordered."
9 And unless the provisions that are
10 applicable to my appearance here today, which is to get a
11 receivership over the house, the parties agree to modify
12 their decree and they outline those modifications in that
13 order.
14 They both signed the decree, they're both
15 represented by counsel, and their counsel signed that
16 order. The allegations that it is unenforceable or that
17 it's void based on 9.007 of the Family Code is wholly
18 unapplicable in this case because that's based on if the
19 Court modifies or does more to change the provisions in
20 a party's decree, then, yeah, it would be void if it
21 really was a substantial modification that the Court
22 ordered.
23 But in this case, Idon't even believe that
24 even if the Court had patently ordered what was in the
25 interim order that it would be void under that section.
6
1 But, nevertheless, they agreed to it. And so that 9.007
2 discusses that the Court can't make those modifications,
3 but here we have an agreement by the parties, an agreement
4 by Mr. McCafferty to make certain payments.
5 He has failed to make payments, not only
6 under the decree which gave rise to this action, but also
7 under these interim orders. And as a result, the
8 punishment is coming down.
9 You don't make the payments, I'm permitted
10 to come down here without the necessity of the hearing,
11 which is what we're doing here today because he's trying
12 to fight this agreement he made and the modifications he
13 made to the decree for me to come down here and get
14 a receivership if he misses these payments. And so under
15 that agreement, I'm allowed to come down here and present
16 you with an order.
17 And that's the end of it, so that my client
18 doesn't have to continue to incure fees to come and
19 enforce orders that we knew he would end up violating,
20 which is why we have those provisions in that order that
21 allows me to come down here without the necessity of
22 a hearing, without the necessity of a motion, to just have
23 an order appointing a receiver.
24 And that was agreed to by his client. And
25 _
now that he's missing payments, he's corning here to
7
1 complaint to you, Judge, saying, "No, the order is void-
2 It's unlawful modification- 11 But no, no, no, no, you
3 agreed to this. And this is an agreement made two years
4 ago, and this is the first time we're hearing him complain
5 today.
6 And now my client is incurring fees, which
7 I'm requesting here today, your Honor.
8 THE COURT: Do you have an extra copy of
9 the order that you're going to enforce, Counsel?
10 MS. VERNON: Yes, your Honor, Ido. Ialso
11 have a brief that Ican provide you because Ithink it was
12 e-filed today.. And so I'm sure it's not on your system
13 yet.
14 THE COURT: You were up early if you
15 e-filed it today.
16 MS. VERNON: Iknow you probably have that
17 order, too.
18 May Iapproach, your Honor?
19 THE COURT: Yes, please. Thank you.
20 MS,. VERNON: Here's the — here's the
21 brief.
22 THE COURT: Thank you.
23 MS. VERNON: And, Judge, the brief just
24 goes into more detail on what Ijust argued today,
25 provides the case law; but if you'd like me to go further
8
1 into why 9.007 doesn't apply, regardless if there was an
2 agreement or not, Ijust went ahead and briefed that issue
3 for you as well.
4 THE COURT: Okay. Thank you.
5 Mr. Shor, your response.
6 MR. SHOR: May Iplease the Court.
7 Judge, we filed a plea to the jurisdiction
8 on October 9th, 2015. The basis of that plea to the
9 jurisdiction is certainly 9.007 of the Family Code that
10 says, in essence, an order that alters, amends, modifies
11 the terms of a property division in a divorce decree is
12 unenforceable .
13 There are no ifs, ands, buts, or however s.
14 Following the language, the order is unenforceable. There
15 hasn't been any pleading from the petitioner subsequent to
16 the pleading of the jurisdiction. And the case law is
17 that one of the ways to raise that which 9.007 provides is
18 by a plea to the jurisdiction that the Court does have the
19 power to enforce an order that alters, amends, or modifies
20 property division in the divorce decree.
21 And you raise that by a plea to the
22 jurisdiction. We haven't heard anything from Ms. Vernon
23 as to how this Court has jurisdiction to do that which she
24 is requesting the Court to do based upon the document
25 labeled "Interim Order".
9
1 And Ithink the Court understands this.
2 But if the risk of being overly anal — she's not
3 requesting a receiver at this time based on the terms of
4 the divorce decree. It's merely predicated on the interim
5 order. Claxton versus Lake Fork Water Control, 220 S.W.
6 3d 537 tells us that a party cannot confer or waive
7 jurisdiction by consent or agreement.
8 And, by the way, Iapplaud counsel. We —
9 we exchanged, last evening, the primary cases that each of
10 us were going to be relying upon in presenting our
11 positions to the Court this morning. So Ibelieve that
12 Ms. Vernon was aware that I' d be citing this case this
13 morning .
14 And so jurisdiction is not something that
15 parties can confer. And so when this instrument entitled
16 "Interim Order, Petition for Enforcement" is agreed to by
17 Mr. McCafferty, he doesn't confer any more jurisdiction in
18 this court than the Court already had. Idon't want to be
19 so naive as to suggest that perhaps there are some
20 remedies that, are available to the petitioner based upon
21 this interim order.
22 Arguably, there's an accordance
23 satisfaction claim, which hasn't been pled. Laches has
24 not been pled as a— as a defense to the plea to the
25 jurisdiction even though Idon't believe that laches would
10
1 apply because you can't confer jurisdiction merely by an
2 action, except subject manner jurisdiction where if you're
3 served and you don't answer, if you had this subject
4 matter jurisdiction by defaulting, you'd waive that.
5 We don't have that situation here. And so
6 we have a situation where there's an order. It certainly
7 alters, amends, or modifies the decree.. And we know that
8 in two ways. First, the terms of this interim order call
9 for increased monthly payments versus the monthly payments
10 in the divorce decree. So we know that one way.
11 The second way we know that is because this
12 is the instrument she's relying upon and not the divorce
13 decree for the liens being sought today. And so, we can
14 talk about this ad nauseam. Iwant to be sensitive to
15 Court's time and everybody's time.
16 The Court doesn't have jurisdiction to do
17 what — what Petitioner wants based upon this order,.
18 THE COURT: Thank you, Mr. Shor.
19 Response, Ms. Vernon.
20 MS. VERNON: Judge, this isn't
21 a jurisdictional question. The judge — well, the Court
22 always has the ability to enforce its orders and enforce
23 agreements — property settlement agreements in a divorce
24 decree. This is an interim order that the parties agreed
25 to.
11
1 The judge is — absolutely has
2 a jurisdiction to enforce that agreement just as if it
3 appeared in the divorce decree. By a virtue of that
4 argument, that would mean every time we're in an
5 enforcement case and the parties settle and have
6 a settlement agreement, one of the parties could say, you
7 know, "Oh. No, Judge, you never had jurisdiction because,
8 you know, we agreed to a modification of our property
9 settlement agreement, and you don't have jurisdiction
10 anymore to enforce that agreement.
11 It would just make — it makes no sense and
12 it's illogical. Secondarily, his argument kind of goes
13 into the weeds a little bit about whether or not the
14 interim order is in violation of the 9.007. We don't even
15 get there, Judge, because they — parties agreed to modify
.16 the property settlement agreement.
17 And so it's not the Court, which is, you
18 know, the Court that's actually modifying the decree.
19 But, alternatively, even if that were the case, let's say
20 they never agreed to it and a judge just rendered thi.s
21 interim order. It's still enforceable because it's not a
22 substantive modification.
23 It's simply a clarification to enforce
24 a property settlement agreement and money that she is due
25 and owed and he is in violation of paying her for it. And
12
1 that's — that's kind of what Idelve into the secondary
2 part of my brief is that it's not a — the judge is always
3 welcome to change the method and manner of how somebody
4 receives a property settlement agreement.
5 They can make it — and the judge well
6 knows that you can order a receivership to enforce
7 whatever settlement that my client is due under the decree
8 on its own. Imean, we can come in here and do that which
9 is what was done two years ago and agreed to by the
10 parties along with other provisions that if he failed to
11 make some payments, that Icould come down here without
12 the necessity of a hearing again.
13 And if the judge would like to hear my
14 testimony as to attorney's fees, I'm happy to do so and
15 prepared to do so because under that agreement, Iwas
16 not — under that agreement, Idid not have to come down
17 here and not only defend the agreement but also have
18 a hearing on the appointment of a receivership.
19 It was supposed to be automatic, and I
20 would just present an order to the Court which would save
21 my client fees in this case. Thank you.
22 MR. SHOR: Now, may Ibrief at one point,
23 your Honor?
24 THE COURT: You may..
25 MR. SHOR: I'm not arguing that this Court
13
1 under no circumstances has the authority to appoint
2 a receiver. I'm not arguing that. I'm arguing that the
3 Court doesn't have the jurisdiction to order a receiver
4 based upon this interim order.
5 Counsel suggested that the interim order is
6 merely a clarification. If it's merely a clarification, I
7 would agree that that's not an order that would amend,
8 modify, or alter the division of property.
9 But she's not relying upon the decree.
10 She's relying upon the interim order. If the Court
11 examined the interim order, it calls for monthly payments
12 to be increased either to 6,000 per month or 10,000 per
13 month versus 4,000 per month in the decree.
14 Ifind it hard to understand how those
15 increased payments don't alter, amend, or modify the
16 property division. It gets her her money quicker. That
17 amends, alters, or modifies the decree. And so, Judge,
18 once again, there are contractural remedies that may be
19 available to the petitioner.
20 But asking the Court to order a receiver
21 based on the interim order lies on the face of 9.007.
22 THE COURT: Okay. Thank you. We will be
23 in recess for about ten minutes while Iread the brief.
24 (Off the record; 8:19-8:29)
25 THE COURT: Thank you. Please be seated.
14
1 After reading the plea to the jurisdiction and
2 respondent's brief and 9.007 and the interim order, the
3 Court finds that the Court does have jurisdiction to
4 enforce the agreement of the parties as found in the
5 interim order on petition for enforcement and orders the
6 appointment of the receiver.
7 Do you have an order, Ms. Vernon?
8 MS. VERNON: Ido. And also my testimony
9 on attorney's fees if the Court is —
10 MR. SHOR: I'll waive the oath, your Honor.
11 THE COURT: Okay,, Thank you. Go ahead and
12 testify.
13 MS. VERNON: Okay. My name is
14 Reagan Vernon. I'm an attorney licensed to practice in
15 the State of Texas. My billing rate as specified by my
16 fee contract with my client is $250 per hour. My
17 paralegal's billing rate is $'140.
18 I'm familiar with the fair and reasonable,
19 usual and customary fees charged by family lawyers in
20 Dallas County, Texas. It is my opinion that the
21 attorney's fees incurred by my client pertained to this
22 lawsuit have been reasonable and necessary and reflect the
23 usual and customary fees charged for the same or similar
24 matters .
25 I've spent a total of six hours in
15
1 preparing for this hearing, including an hour that
2 allocated to the attendance of this hearing and attending
3 the last conference, doing — conducting legal research,
4 drafting the brief for the Court in response to the
5 attempt to invalidate the interim order, conducting
6 conferences with my client, assigning tasks to my
7 paralegal, who has spent 30 minutes in assisting me.
8 Attorney fees and costs for my client that
9 are attributable for preparing and attending this hearing
10 totals $1,570. My client would' ve never incurred $1,570
11 but for Mr. McCafferty's attempt to get this Court to
12 overturn the interim order that specifically states that I
13 didn't have to come down for a hearing on this issue.
14 It's my opinion that the $1,570 in fees and
15 costs have both been reasonable and necessary in
16 representing my client in this matter and that such fees
17 to be paid by Mr. McCafferty are in conformity with the
18 Texas Rules of Civil Procedure and the Texas Family Code.
19 THE COURT: Pass yourself?
20 MS. VERNON: Pass myself.
21 MR., SHOR: Ihave no questions, your Honor.
22 MS. VERNON: And may approach with the
23 orders, your Honor?
24 THE COURT: You may,.
25 The Court grants attorney's fees of $1,570
16
1 finding it reasonable and necessary under these
2 circumstances ..
3 MS. VERNON: Your Honor, I'm presenting two
4 orders. One, Ileft blank in case your Honor wanted to
5 choose the receiver* The other, Ichose a realtor in the
6 Dallas County area for where this house is located. So —
7 and Fred Mams told me that you appointed somebody the
8 other day that you really liked, and so Ijust brought two
9 different —
10 THE COURT: Do you have an opinion in
11 regards to who the receiver would be, Mr. Shor?
12 MR. SHOR: Well, Imay, your Honor. I'm
13 presuming that the petitioner has rested and closed on
14 this motion.
15 THE COURT: Yes.
16 MS. VERNON: Yes, your Honor.
17 THE COURT: Well, Idon't know if rest and
18 close regarding the motions but, yes, sir. Go ahead.
19 MR. SHOR: Is that correct?
20 MS. VERNON: Yes.
21 MR. SHOR: Well, if that's correct, your
22 Honor — this may seem like sharp practice, but this is
23 what my legal training tells me to say. The only evidence
24 that's before the Court is that Ms. Vernon has testified
25 as to attorney's fees,
17
1 There's no evidence before the Court that
2 that which is required in the interim order — and by the
3 way, Idon't mean to waive my prior argument that the
4 Court can't enforce it. The Court understands my
5 argument. But if that order is enforceable, there is
6 still a predicate that has to occur for the receiver to be
7 appointed under that order, and that hasn't been proven.
8 THE COURT: Mr. Shor, Iknow exactly what
9 you're talking about; but in my opinion, you waived that
10 argument when we started this proceeding because you never
11 stated that your client wasn't behind,.
12 MR. SHOR: Idon't believe the burden of
13 proof is on me, Judge, to prove their — the matters that
14 they need to prove. Now, we do have a trial setting
15 November 12th. So —
16 THE COURT: On other issues?
17 MR. SHOR: On the merits of this case.
18 THE COURT: Okay. I'm still on the
19 appointment of the receiver. Iunderstand your argument
20 but I'm overruling the objection.
21 MR. SHOR: Well, Judge, if — if you want
22 to hear from me regarding either of these proposed orders,
23 they call for the parties to sign any real estate listing
24 agreement. That could compel these parties to sign
25 a lease agreement that calls for property to be sold for
18
1 $1.
2 And I — Idon't think that that's what the
3 petitioner wants. It's certainly not what the respondent
4 wants. And the property is listed for about
5 $1,399 million right now. Hasn't sold. But that's what
6 it's listed for. But this doesn't set a base as to what
7 it can be sold for, and Isuggest that either one of these
8 orders could cause a— a forfeiture for these people.
9 MS. VERNON: The realtors owe their clients
10 fiduciary duties. And they have an interest in selling
11 the house for as much as they can because they get a
12 percentage off of that. And that's where their fees will
13 come out for being a receiver .
14 THE COURT: Iunderstand that but the
15 phrase that Mr. Shor specifically is pointing out is
16 signing any real estate listing agreement can leave these
17 parties wide open to a lot of problems, to put it lightly.
18 MS. VERNON: Imean, I'm happy to write in
19 that they — if it's currently listed, you know — Imean,
20 it's been listed three times now. So I'm sure that the
21 contract, that currently exists, and if it's truly at 1.3,
22 then that's fine. We can sign a listing agreement that is
23 listed for 1.399 if that's what it is.
24 Imean, he already agreed to it.
25 MR. SHOR: That's correct.
19
1 THE COURT: Is that agreeable to you
2 Mr. Shor, 1.399?
3 MR. SHOR: Judge, that's a much better term
4 to have in this order than — when you say it's agreeable
5 to me, I'm opposing this order.
6 THE COURT: Well, under duress.
7 MR. SHOR: I'm opposing the Court from
8 signing this order. But that at least addresses the
9 possibility of there being a forfeiture here.
10 THE COURT: Why are you asking for the
11 appointment of two receivers?
12 MS. VERNON: They work together and they're
13 part of their own realtor group. It's just going to be —
14 THE COURT: Do they share the fee or do
15 they ask for more fees?
16 MS. VERNON: They're — it's just going to
17 be the one. Ithink Ishould 've put "or," Isuppose.. I
18 haven't spoken to all three.. In terms of just — Ijust
19 suggested those people because they've done it before for
20 our firm in the past and work well in this area; but they
21 all work well together . So Isuppose Ishould say "or ."
22 It's just that they're found as good
23 receivers — qualified receivers but not to be appointed
24 together.
25 THE COURT: Okay. I've modified the order
20
1 to state that it's Eve Sullivan or Shelly Tillery. Then I
2 have stated that they will sign a real estate listing
3 agreement that lists the property initially at
4 1.399 million. And Ihave ordered to attorney's fees to
5 be paid on or before 11/1/15 at Mrs. McCafferty's
6 residence .
7 And I've taken out the last line that said
8 they may enforce by contempt if the parties do not
9 cooperate .
10 MR. SHOR: Judge , there's another phrase
11 that Ithink needs a little bit of massaging.
12 THE COURT: What is that?
13 MR. SHOR: The paragraph second from the
14 bottom. It is further ordered that Eve Sullivan or
15 Shelly Tillery — I'm saying "or" because Ithink the
16 Court —
17 THE COURT: Correct.
18 MR. SHOR: — are authorized to manage,
19 control, and dispose of the property as they see fit in
20 their sole discretion. Ithink it should be something
21 like in accordance with the listing agreement or some
22 qualifier .
23 MS. VERNON: That's fine with me, Judge.
24 Another point: Mr. McCafferty does not know where my
25 client resides because there was — back when they were
21
1 interacting.
2 THE COURT: Okay. So where do we want this
3 sent, then?
4 MS. VERNON: It can be just sent back to my
5 office.
6 THE COURT: Okay. I've made the
7 adjustments that we've stated. I'm going to make a copy
8 for you-all.
9 (Proceeding ended; 8:42 a,.m.)
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1 STATE OF TEXAS
2 COUNTY OF DALLAS
3 I, Janet Saavedra, Official Court Reporter in
4 and for the 254th Judicial District Court of Dallas
5 County, State of Texas, do hereby certify that the
6 above and foregoing contains a true and correct
7 transcription of all portions of evidence and other
8 proceedings requested in writing by counsel for the
9 parties to be included in this volume of the
10 Reporter's Record, in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 X further certify that this Reporter's Record
14 of the proceedings truly and correctly reflects the
.15 exhibits, if any, admitted by the respective
16 parties. Ifurther certify that the total cost for
17 the preparation of this Reporter's Record is $176
18 and was paid by Mr. Frank Shor, attorney for the
19 Respondent/ Counter Petitioner.
20 WITNESS MY OFFICIAL HAND this the 30th day of
21 October, 2015.
22
23 Janet Saavedra, Texas CSR #9160
Expiration Date: 12/31/2017
24 Official Court Reporter
254th Judicial District Court
25 Dallas, Texas 75202
—
Telephone: 214)653 - 6602 -