Frederick Dawson Graham v. Dena Marie Turner ( 2015 )

ACCEPTED
12-14-00336-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
5/26/2015 10:40:11 AM
CATHY LUSK
CLERK
No. 12-14-00336-CV
FILED IN
12th COURT OF APPEALS
IN THE TYLER, TEXAS
5/26/2015 10:40:11 AM
CATHY S. LUSK
TWELFTH COURT OF APPEALS Clerk
AT TYLER, TEXAS
FREDERICK DAWSON GRAHAM, Appellant
v.
DENA MARIE TURNER, Appellee
Appealed from the County Court at Law of
Nacogdoches County, Texas
Trial Court Cause Number: C1228635
APPELLEE’S BRIEF
Counsel for Appellee:
Jarett T. LaRochelle
Texas Bar Number: 24041296
One Riverway, Suite 1700
Houston, Texas 77056
713-907-8668 telephone
713-840-6351 facsimile
Identity of Parties and Counsel
Appellee certifies that this is a list of all parties to the trial court’s judgment,
and the names, addresses, and telephone numbers of all trial and appellate counsel:
Appellant: FREDERICK DAWSON GRAHAM
Counsel: Mr. Tom Rorie
State Bar No. 17238000
210 North Street
Nacogdoches, Texas 75961
936-559-1188 telephone
936-559-0099 facsimile
Appellee: DENA MARIE TURNER
Counsel: Mr. Jarett T. LaRochelle
State Bar No. 24041296
One Riverway, Suite 1700
Houston, Texas 77056
713-907-8668 telephone
713-840-6351 facsimile
Oral Argument is Unnecessary
Appellee would allege and show that oral argument is unnecessary herein on
each of the grounds provided in Rule 39.1 of the Texas Rules of Appellate
Procedure, i.e. (a) the appeal is frivolous; (b) the dispositive issues have been
authoritatively decided; (c) the facts and legal arguments are adequately presented
in the briefs and record; and (d) the decisional process would not be significantly
aided by oral argument.
2
Table of Contents
Identity of Parties and Counsel ..................................................................................2
Oral Argument is Unnecessary ..................................................................................2
Index of Authorities ...................................................................................................3
Statement of the Case.................................................................................................4
Issues Presented .........................................................................................................4
Statement of Facts ......................................................................................................5
Summary of the Argument.......................................................................................14
Argument..................................................................................................................15
Conclusion ...............................................................................................................31
Prayer .......................................................................................................................32
Certificate of Compliance ........................................................................................33
Certificate of Service ...............................................................................................33
Index of Authorities
Aaron v. Aaron, 2012 Tex.App. LEXIS 769 22, 24
(Tex.App.—Houston [14th Dist.] January 31, 2012)
(mem. Opinion) (Cause No. 14-10-00765-CV)
Griffin v. Birkman, 266 S.W.3d 189 16
(Tex.App.—Austin 2008, pet. ref’d)
Harrington v. Harrington, 742 S.W.2d 722 22, 23
(Tex.App.—Houston [1st Dist.] 1987)
In re Bass, 113 S.W.3d 735 16
(Tex.2003)
In the interest of M.C.F., 121 S.W.3d 891 16
(Tex.App.—Fort Worth 2003, pet.dism’d).
3
Knight v. Knight, 301 S.W.3d 723 16
(Tex.App.—Houston [14th] 2009, no writ hist.).
Mea v. Mea, 464 S.W.2d 201 16
(Tex.Civ.App.—Tyler 1971, no writ hist.)
Codes, Rules, and Statutes
TEXAS CONSTITUTION, Article 16, §50(a)(3) 16
TEXAS BUSINESS & COMMERCE CODE §26.01(b)(3) 24
TEXAS FAMILY CODE §3.203 16
TEXAS PENAL CODE §22.01 28
Statement of the Case
Appellant Frederick Dawson Graham appeals the Final Decree of Divorce
entered on September 3, 2014, in in Cause No. C1228635, by the Honorable Judge
Jack Sinz, of the County Court at Law of Nacogdoches County, Texas.
Issues Presented
Appellant Frederick Dawson Graham has presented nine (9) issues:
1. Whether the Trial Court abused its discretion in awarding Appellee an
ownership interest in the marital residence;
2. Whether the Trial Court erred in finding that the parties were tenants
in common in the marital residence;
4
3. Whether the Trial Court erred by divesting Appellant of one-half of
his ownership in the marital residence and awarding that interest to
Appellee;
4. Whether the Trial Court abused its discretion in failing to find that the
residence was not purchased with Appellant’s separate property funds;
5. Whether the Trial Court abused its discretion when it disregarded
Appellant’s allegation that Appellee committed fraud on the community
estate;
6. Whether the Trial Court abused its discretion in disregarding evidence
of benefits received by Appellee during the marriage;
7. Whether the Trial Court abused its discretion in finding that Appellant
was at fault in the break-up of the marriage;
8. Whether the Trial Court abused its discretion when it ordered
Appellant to pay spousal support; and
9. Whether the Trial Court abused its discretion in awarding a
disproportionate part of the tract adjoining the residence.
Statement of Facts
As indicated in Appellant’s Brief, the parties were married on or about 2007
and ceased to live together as husband and wife on or about July 1, 2012.
Appellant’s Brief ignores that Appellee and Appellant lived together and were
5
looking to purchase a residence together many years prior to their date of marriage.
(RR Vol. 1, pp. 42-43; RR Vol. 2, pp. 12-13; and Petitioner’s Ex. 1, email dated
December 26, 2008). During such time, Appellee ceased working on her own
independent career to enter into an oral business partnership and service
Appellant’s career. (RR Vol. 2, pp. 40, 146-151). Appellant was able to bill
clients for the parties’ joint effort at a higher rate than Appellee’s customary rate
and all business expenses incurred by the couple were reimbursed by the clients.
(RR Vol. 2, pp. 13, 40, 58, 115, 126, 148). Because Appellee traveled with
Appellant on his business trips, the Trial Court found Appellee was only available
to work with and for Appellant and was unable to continue her own, independent
career as corroborated by witness Kathy Bush-Soule, Appellee’s former client.
(RR Vol. 2, pp. 148-49). By written correspondence, Appellant acknowledged
Appellee’s business services consistently from 2004 through 2011. (RR Vol. 2,
pp. 17-21, 27-29, 115 and Petitioner’s Exhibit 1, email(s) dated May 25, 2004; July
13, 2004; July 16, 2004; August 2, 2004; August 13, 2004; June 23, 2005; May 2,
2006; April 27, 2006; May 3, 2006; May 4, 2006; July 12, 2006; July 13, 2006;
October 18, 2006; April 4, 2007; November 14, 2008; and January 14, 2011).
Appellant has education, training, and experience in the field of accounting for oil
and gas production with oil companies in that field, but relied upon Appellee’s
education, training, and experience in marketing, editing, and drafting of business
6
communications, presentation design and development, and back office
administration. (RR Vol. 2, pp. 13-14, 17-21). Appellant’s poor writing and
spelling skills required Appellee to both edit all communications with clients and
write the final work products presented for payment to clients. (RR Vol. 2, pp. 13-
14, 17-21, 37-38).
With respect to the marital homestead, Appellee and Appellant collaborated
together to find and decide upon the purchase of the Raguet Street residence in
Nacogdoches in 2006. (RR Vol. 1, pp. 42-43). Appellant admitted on the stand
that Appellee and Appellant were purchasing the residence together. (RR Vol. 4,
p. 78). Prior to the purchase of the Raguet Street residence, Appellee and
Appellant had previously attempted to purchase another, more expensive,
residence in Nacogdoches in 2004. (RR Vol. 4, p. 80 and Petitioner’s Ex. 1, emails
dated April 29, 2004, May 25, 2004, July 21, 2004, July 30, 2004, August 2, 2004,
August 17, 2004, August 25, 2004, and two (2) dated September 2, 2004).
Appellee was the only connection with or inspiration to reside in Nacogdoches.
Appellant had no independent connection with or incentive to reside in
Nacogdoches. (RR Vol. 3, pp.74-76 and RR Vol. 4, pp. 77-78).
While the purchase of the Raguet Street residence was five months prior to
the date of marriage of the parties, the parties had been working, romantically
involved, and residing together for approximately five years. (Petitioner’s Ex. 1,
7
email dated December 26, 2008). The entire initial down payment on the Raguet
Street residence purchase was provided from business revenue generated by the
combined efforts of Appellee and Appellant and paid from a First Bank and Trust
of East Texas basic business checking bank account jointly owned by both
Appellee and Appellant. (RR Vol. 2, pp. 99, 131-133 and RR Vol. 3, pp. 45-52
and Petitioner’s Ex. 6). Appellee worked on and coordinated the entire closing on
the Raguet Street residence, and Appellant consulted with Appellee on loan
comparisons, cost savings and financial risk mitigataion. (RR Vol. 2, p. 28-29 and
Petitioner’s Ex. 1, email dated August 17, 2006). The Appellee testified and
Appellant conceded that title to the Raguet Street residence was exclusively held in
the name of Appellant because Appellee’s credit score would have resulted in a
higher mortgage interest rate. (RR Vol. 4, p 159 and Petitioner’s Exhibit 1; email
dated August 17, 2006). The payments in reduction of principal on the mortgage
secured by the Raguet Street residence were made from business revenue
generated by the combined efforts of Appellee and Appellant. (Petitioner’s
Exhibit(s) 4, 10, 11, and 12). Any and all inheritance or other separate property
funds belonging to Appellant, including but not limited to Appellant’s inheritance
from his father, were deposited into a savings account commingled with other
funds and then deposited into a money market account and comingled with other
funds used to pay living expenses for both parties over the years prior to the
8
purchase of the Raguet Street residence. Appellee produced exhibits that evidence
the business revenue used to fund the initial down payment and regular monthly
payments on the mortgage secured by the Raguet Street residence. (RR Vol. 3, pp.
45-55 and Petitioner’s Exhibit(s) 4, 10, 11, and 12). None of the funds used for the
initial down payment or regular monthly payments on the Raguet Street residence
were from funds received from the United Kingdom. (RR Vol. 4, p. 161-63).
While Appellant’s Brief alleges otherwise, Appellant himself admitted on the stand
an inability to dispute Appellee’s tracing evidence with respect to the Raguet Street
residence. (RR Vol. 4, p. 161-63).
The purchase of the Back Lot to the Raguet Street residence was after the
date of marriage of the parties. The Appellee testified and Appellant conceded that
title to the Raguet Street residence was exclusively held in the name of Appellant
because Appellee’s credit score would have resulted in a higher mortgage interest
rate. By correspondence to Appellee, Appellant acknowledged the savings
received from their method of financing the Raguet Street residence only in
Appellant’s name. It was, however, Appellee who handled the closing
coordination on the Raguet Street residence and Back Lot closings. Again, the
parties agreed that title to the Back Lot was recorded exclusively in the name of
Appellant, although purchased after the date of marriage of the parties, because
Appellant was able to obtain better financing terms without the joinder of Appellee
9
on the loan. In full and final payment of the mortgage due and owing on the “Back
Lot”, Appellant borrowed $15,000 from Robert McCatty and Kathleen McCatty,
his brother-in-law and sister.
Appellee testified that she never anticipated Appellant would make claim to
the Raguet Street House or the Back Lot as his separate property. Appellee
testified that Appellant had promised Appellee to add Appellee’s name to title to
the Raguet Street residence. For such reasons, Appellee served as the coordinator
and “general contractor” for extensive repairs and remodeling to the Raguet Street
residence and also ran the home since the time of purchase. And, Appellee would
not have performed all of the contracting and remodeling efforts at the Raguet
Street residence but for the understanding in reliance upon Appellant’s
representations that it was “their” home. (RR Vol. 3, p. 56). In fact, through
numerous email correspondences to Appellee, Appellant represented to Appellee
that he intended the home to be jointly owned, used, and enjoyed. (RR Vol. 2, p.
56 and RR Vol. 3, pp. 74-77; RR Vol. 4, pp. 78-82, 159; and Petitioner’s Ex. 1;
emails dated May 25, 2004; July 6, 2004; July 16, 2004; July 30, 2004; August 25,
2004; September 2, 2004; July 13, 2006; August 3, 2006; August 17, 2006;
September 26, 2006; December 18, 2006; and October 14, 2008). There was
certainly no evidence of intent for the Appellee to have no ownership interest in
the Raguet Street residence or adjoining Back Lot.
10
Appellant admitted on the stand to fabricating, falsifying, and/or
fraudulently executing documents with the intention that Appellee rely upon the
truthfulness of the information contained in such documents, both before the
marriage of the parties, to induce the Appellee into the marriage, and after the
marriage of the parties, to induce the Appellee to refrain from making claims
against Appellant. (RR Vol. 1, p. 66, 68 and RR Vol. 3, p. 5-7). Appellee testified
that she discovered Appellant’s fabrication, falsification, and/or fraudulent
execution of documents when Appellant left Appellee to return to the United
Kingdom under false pretenses. (RR Vol. 2, p. 72-76; RR Vol. 3, p. 35; and RR
Vol. 4, p. 155). At the time of Appellee’s discovery, the parties had not formally
reached an agreement for divorce.
Appellant further admitted on the stand to lying to Appellee about his
involvements with a Melody Welsh aka Melanie Welsh as well as the value and
location of assets. (RR Vol. 1, p. 68 and RR Vol. 4, pp. 156-57). And further,
Appellant made an admission against his interests via telephone voice recording
Appellee that Appellant hid assets from Appellee in the United Kingdom. The
assets Appellant admitted to hiding from Appellee were undisclosed and
unidentified. For such and other reasons, Appellant’s testimony and evidence were
found to not be credible. Appellant’s evidence pertaining to his prior marriage to
Brigid Graham was not credible and the Trial Court was unable to determine or
11
verify the date(s) or terms of Appellant’s divorce with Brigid Graham. In fact, the
Trial Court found that Appellant has the use and enjoyment of his prior marital
residence with his prior wife, Brigid Graham, in the United Kingdom, and access
to assets and/or funds in an undisclosed amount located in the United Kingdom.
(RR Vol. 1, pp. 49, 64, 67-68, 70-71, 83-85).
On March 31, 2014, Temporary Orders were entered in this matter ordering
Appellant to make monthly payments of temporary spousal support to Appellee in
the amount of Two Thousand and no/100 Dollars ($2,000.00), on the first (1st) day
of each month beginning April 1, 2014, and thereafter until further order of this
Court. Appellant altogether failed to make any payment of temporary spousal
support to Appellee, in violation of the Temporary Orders entered March 31, 2014.
At trial, the Trial Court found that the marriage has become insupportable
because of discord or conflict of personalities between Appellee Dena Marie
Turner and Appellant Frederick Dawson Graham that destroys the legitimate ends
of the marriage relationship and prevents any reasonable expectation of
reconciliation. The Trial Court further found that Appellant is guilty of cruel
treatment toward Appellee, including but not limited to acts of assault and/or
battery on or about April 20, 2012, in February of 2012, in December of 2011, in
October of 2011, in August of 2011, on or about July 4, 2010, in June of 2010, in
August of 2009, and in June of 2008. (RR Vol. 2, pp. 45-62, 67-72). Appellant’s
12
cruel treatment toward Appellee was corroborated by the witness Cheryl Gryder.
(RR Vol. 2, pp. 154-56, 161). The Trial Court found that Appellee’s discovery of
Appellant’s fabrication, falsification, and/or fraudulent execution of documents,
combined with Appellant’s cruel treatment of Appellee, were the fault and cause of
the divorce. The Trial Court therefore determined that Appellant is at fault in the
breakup of the marriage and that Appellee is entitled to a disproportionate division
of the parties’ marital estate.
The Trial Court found that the only evidence that Appellant gifted,
conveyed, or transferred money to any other person during the marriage of the
parties is Appellant’s testimony as to providing funds to his prior wife, his
children, and to Melody Welsh aka Melanie Welsh. The Trial Court found that
there is no credible evidence that any community funds were used without the
knowledge or consent of Appellant.
The Trial Court further found that, in the summer of 2012, Appellant made
available to Appellee the sum of $20,000 to cover expenses while Appellant left
Appellee under false pretenses to return to live with his prior wife Brigid Graham.
At the time Appellant made the $20,000 available to Appellee, there was no
agreement by and between the parties to divorce and settle the marital estate.
During such time, Appellant used substantial community funds from the First Bank
and Trust of East Texas bank accounts co-owned by Appellant and Appellee. (RR
13
Vol. 2, p. 104-105 and RR Vol. 4, p. 12). In fact, Appellee testified that in the
summary of 2012, negotiations were taking place by and between the parties as to
the division of the martial estate but that Appellant left Appellee under false
pretenses to return to live with his prior wife Brigid Graham before any agreement
could be made. Appellee further testified that prior to the time Appellee
discovered Appellant’s fabrication, falsification, and/or fraudulent execution of
documents there remained the possibility of reconciliation and no agreement had
been reached by and between the parties regarding divorce.
At the conclusion of trial, the Trial Court found that Appellee has incurred
reasonable and necessary attorney’s fees in excess of $10,000.00, and that
Appellee is entitled to recover her reasonable and necessary attorney’s fees from
Appellant. The Trial Court further found that, for violation of the Temporary
Orders entered March 31, 2014, Appellant is ordered to pay to Appellee $8,000.00,
as outstanding support under such Temporary Orders through trial.
Summary of the Argument
Appellant challenges the Final Decree of Divorce entered on September 3,
2014, in in Cause No. C1228635, by the Honorable Judge Jack Sinz, of the County
Court at Law of Nacogdoches County, Texas. Appellant contends that the Final
Decree of Divorce entered against him should be reversed and that judgment
should be rendered that Appellee has no ownership interest in the Raguet Street
14
residence. Appellant further contends that the division of the community property
and spousal support issues should be remanded with additional instructions to (a)
consider the evidence with regard to expenditures made by Appellee with
community funds, (b) financial benefits received by Appellee during the marriage,
(c) the disproportionate division of the Back Lot to the Raguet Street residence;
and (d) the award of temporary spousal support by order of the Trial Court dated
March 31, 2014. The record shows, however, that Appellant’s points of error are
frivolous and unsubstantiated by the evidence. Specifically, the evidence
demonstrates that the initial down payment and mortgage payments on the Raguet
Street residence were not from Appellant’s separate property funds; that no
expenditures by Appellee of community funds were without Appellant’s consent or
knowledge; that Appellant’s wrongful acts are relevant, material, and rise to the
level of fault in the breakup; that Appellant has access to undisclosed, unidentified
funds in the United Kingdom which enable him to pay support to Appellee; and
that Appellant’s fault in the breakup justifies a disproportionate award to Appellee.
Argument
Point 1. The Trial Court did not abuse its discretion in awarding Appellee an
ownership interest in the marital residence.
Point 2. The Trial Court did not err in finding that the parties were tenants in
common in the marital residence.
15
Point 3. The Trial Court did not err by divesting Appellant of one-half of his
ownership interest in the marital residence and awarding that interest to
Appellee
As conceded in Appellant’s Brief, the Trial Court does not abuse its
discretion unless a decision is so arbitrary or unreasonable that it amounts to a
clear error. In re Bass, 113 S.W.3d 735 (Tex.2003). Without abusing its
discretion herein, the Trial Court divided marital property as it deemed right based
on the credible evidence and facts presented. Mea v. Mea, 464 S.W.2d 201
(Tex.Civ.App.—Tyler 1971, no writ hist.). As provided in the Trial Court’s
Findings of Fact and Conclusions of Law, there exist reasonable bases for the
unequal division of the property of the parties herein. Knight v. Knight, 301
S.W.3d 723 (Tex.App.—Houston [14th] 2009, no writ hist.). Further, such
reasonable bases exist in light of findings founded on sufficient facts and evidence.
Griffin v. Birkman, 266 S.W.3d 189 (Tex.App.—Austin 2008, pet. ref’d); and In
the interest of M.C.F., 121 S.W.3d 891 (Tex.App.—Fort Worth 2003, pet.dism’d).
Under the inherent authority of Section 3.203 of the Texas Family Code and
Article 16, Section 50(a)(3) of the Texas Constitution, the Trial Court has just and
equitable discretion over the marital residence.
In an attempt to dismiss Appellant’s fault and lack of credibility, Appellant’s
brief mischaracterizes the situation and status of assets in the months leading up to
16
the filing of divorce. Specifically, Appellant’s brief alleges that Appellee obtained
benefits to which she was not entitled during the time that Appellant had
abandoned her to return to his former wife in the United Kingdom. As indicated in
the reporter’s record and Trial Court’s Findings of Fact and Conclusions of Law
Appellant’s testimony and evidence were found to not be credible. (RR Vol. 1, p.
28; RR Vol. 3, pp. 69, 126; and RR. Vol. 4, p. 25-27, 145, 200-01).
Contrary to the factual allegations contained in Appellant’s brief, Appellee
and Appellant lived together and were looking to purchase a residence together
many years prior to their date of marriage. (RR Vol. 1, pp. 42-43; RR Vol. 2, pp.
12-13; and Petitioner’s Ex. 1, email dated December 26, 2008). During such time,
Appellee ceased working on her own independent career to enter into an oral
business partnership and service Appellant’s career. (RR Vol. 2, pp. 40, 146-151).
Appellant was able to bill clients for the parties’ joint effort at a higher rate than
Appellee’s customary rate and all business expenses incurred by the couple were
reimbursed by the clients. (RR Vol. 2, pp. 13, 40, 58, 115, 126, 148). Because
Appellee traveled with Appellant on his business trips, the Trial Court found
Appellee was only available to work with and for Appellant and was unable to
continue her own, independent career, as corroborated by witness Kathy Bush-
Soule, Appellee’s former client. (RR Vol. 2, pp. 148-49). By written
correspondence, Appellant acknowledged Appellee’s business services
17
consistently from 2004 through 2011. (RR Vol. 2, pp. 17-21, 27-29, 115 and
Petitioner’s Exhibit 1, email(s) dated May 25, 2004; July 13, 2004; July 16, 2004;
August 2, 2004; August 13, 2004; June 23, 2005; May 2, 2006; April 27, 2006;
May 3, 2006; May 4, 2006; July 12, 2006; July 13, 2006; October 18, 2006; April
4, 2007; November 14, 2008; and January 14, 2011). Appellant has education,
training, and experience in the field of accounting for oil and gas production with
oil companies in that field, but relied upon Appellee’s education, training, and
experience in marketing, editing, and drafting of business communications,
presentation design and development, and back office administration. (RR Vol. 2,
pp. 13-14, 17-21). Appellant’s poor writing and spelling skills required Appellee
to both edit all communications with clients and write the final work products
presented for payment to clients. (RR Vol. 2, pp. 13-14, 17-21, 37-38).
With respect to the marital homestead, Appellee and Appellant collaborated
together to find and decide upon the purchase of the Raguet Street residence in
Nacogdoches in 2006. (RR Vol. 1, pp. 42-43). Appellant admitted on the stand
that Appellee and Appellant were purchasing the residence together. (RR Vol. 4,
p. 78). Prior to the purchase of the Raguet Street residence, Appellee and
Appellant had previously attempted to purchase another, more expensive,
residence in Nacogdoches in 2004. (RR Vol. 4, p. 80 and Petitioner’s Ex. 1, emails
dated April 29, 2004, May 25, 2004, July 21, 2004, July 30, 2004, August 2, 2004,
18
August 17, 2004, August 25, 2004, and two emails dated September 2, 2004).
Appellee was the only connection with or inspiration to reside in Nacogdoches.
Appellant had no independent connection with or incentive to reside in
Nacogdoches. (RR Vol. 3, pp.74-76 and RR Vol. 4, pp. 77-78).
The parties do not disagree that purchase of the Raguet Street residence was
prior to the date of marriage of the parties. The evidence demonstrates, however,
that while the purchase of the Raguet Street residence was five months prior to the
date of marriage of the parties, the parties had been working, romantically
involved, and residing together for approximately five years. (Petitioner’s Ex. 1,
email dated December 26, 2008). The evidence shows that the initial down
payment on the Raguet Street residence purchase was provided from business
revenue generated by the combined efforts of Appellee and Appellant and paid
from a First Bank and Trust of East Texas basic business checking bank account
jointly owned by both Appellee and Appellant. (RR Vol. 2, pp. 99, 131-133 and
RR Vol. 3, pp. 45-52 and Petitioner’s Ex(s). 4, 6, 10, 11, and 12). The Appellee
testified and Appellant conceded that title to the Raguet Street residence was
exclusively held in the name of Appellant because Appellee’s credit score would
have resulted in a higher mortgage interest rate. (RR Vol. 4, p 159 and Petitioner’s
Exhibit 1; email dated August 17, 2006). The payments in reduction of principal
on the mortgage secured by the Raguet Street residence were made from business
19
revenue generated by the combined efforts of Appellee and Appellant (RR Vol. 2,
pp. 99, 131-133 and RR Vol. 3, pp. 45-52 and Petitioner’s Ex(s). 4, 10, 11, and
12). Any and all inheritance or other separate property funds belonging to
Appellant, including but not limited to Appellant’s inheritance from his father,
were deposited into a savings account commingled with other funds and then
deposited into a money market account and comingled with other funds used to
pay living expenses for both parties. Appellee produced exhibits that evidence the
business revenue used to fund the initial down payment and regular monthly
payments on the mortgage secured by the Raguet Street residence. (RR Vol. 3, pp.
45-55 and Petitioner’s Exhibit(s) 4, 10, 11, and 12). None of the funds used for the
initial down payment or regular monthly payments on the Raguet Street residence
were from funds received from the United Kingdom. (RR Vol. 4, p. 161-63).
While Appellant’s Brief alleges otherwise, Appellant himself admitted on the stand
an inability to dispute Appellee’s tracing evidence with respect to the Raguet Street
residence. (RR Vol. 4, p. 161-63). Thus, the Trial Court found that neither the
initial down payment nor the regular monthly payments on the mortgage secured
by the Raguet Street residence were funded from Appellant’s money market
account, i.e. the account claimed to contain separate property funds belonging to
Appellant.
Appellee worked on and coordinated the entire closing on the Raguet Street
20
residence, and Appellant consulted with Appellee on loan comparisons, cost
savings and financial risk mitigation. (RR Vol. 2, p. 28-29 and Petitioner's Exhibit
1, e-mail dated August 17, 2006). Appellee testified and Appellant conceded that
title to the Raguet Street residence was exclusively held in the name of Appellant
because Appellee’s credit score would have resulted in a higher mortgage interest
rate. (RR Vol. 4, p 159 and Petitioner’s Exhibit 1; email dated August 17, 2006).
Appellee testified that she never anticipated Appellant would make claim to the
Raguet Street House or the Back Lot as his separate property. Appellee also
testified that Appellant had promised Appellee to add Appellee’s name to title to
the Raguet Street residence. For such reasons, Appellee served as the coordinator
and “general contractor” for extensive repairs and remodeling to the Raguet Street
residence. And, Appellee would not have performed all of the contracting and
remodeling efforts at the Raguet Street residence but for the understanding in
reliance upon Appellant’s representations that it was “their” home. (RR Vol. 3, p.
56). In fact, through numerous email correspondences to Appellee, Appellant
represented to Appellee that he intended the home to be jointly owned, used, and
enjoyed. (RR Vol. 2, p. 56; RR Vol. 3, pp. 74-77; RR Vol. 4, pp. 78-82, 159; and
Petitioner’s Ex. 1; emails dated May 25, 2004; July 6, 2004; July 16, 2004; July
30, 2004; August 25, 2004; September 2, 2004; July 13, 2006; August 3, 2006;
August 17, 2006; September 26, 2006; December 18, 2006; and October 14, 2008).
21
There was certainly no evidence of intent for the Appellee to have no ownership
interest in the Raguet Street residence or adjoining Back Lot.
The most relevant authority to permit the Trial Court to determine that the
Raguet Street residence was jointly owned by the Appellee and Appellant is found
in Aaron v. Aaron, 2012 Tex.App. LEXIS 769 (Tex.App.—Houston [14th Dist.]
January 31, 2012) (mem. Opinion) (Cause No. 14-10-00765-CV) and Harrington
v. Harrington, 742 S.W.2d 722 (Tex.App.—Houston [1st Dist.] 1987). In the
Aaron case, the husband challenged the trial court’s findings and conclusions that
the residence, acquired prior to marriage, was jointly owned by husband and wife
prior to marriage. The trial court in the Aaron case found that even though title
was acquired prior to marriage and held in the husband’s name alone, the husband
and wife jointly owned the house, each owning a one-half, undivided separate
property interest in the house. The Court of Appeals in the Aaron case affirmed
the trial court’s judgment. The present case is similar to the Aaron case in that the
parties looked for and decided upon the Raguet Street residence together, it was
purchased in the husband’s name solely due to the wife’s poor credit, and the
residence was used, enjoyed, and represented to be jointly owned. (RR Vol. 3, pp.
75-77; RR Vol. 4, p. 159; and Petitioner’s Ex. 1; emails dated May 25, 2004; July
6, 2004; July 16, 2004; July 30, 2004; August 25, 2004; September 2, 2004; July
13, 2006; August 3, 2006; August 17, 2006; September 26, 2006; December 18,
22
2006; and October 14, 2008). In the Harrington case, the husband challenged the
trial court’s findings and conclusions that the residence was purchased by the
parties as tenants in common, pursuant to an oral partnership, taking title in the
husband’s name for convenience and credit purposes only. See Harrington, 742
S.W.2d at 723-24. The Harrington court acknowledged the wife’s plea that an oral
partnership existed in the parties’ purchase and ownership of the residence,
entitling her to an undivided one-half interest. See id. The wife’s testimony that
she agreed to the husband applying for the loan and taking title in his name alone;
combined with her lack of concern that he would ever assert that the property was
his alone, their referring to the property as “our home”, and the wife’s
contributions to improving the house, established that there was never any
indication of intent for the wife to have no ownership interest. See Harrington,
742 S.W.2d at 725. The present case is similar to Harrington in that the evidence
clearly demonstrates that, as a result of the Appellee’s credit, the parties both
benefitted from securing a mortgage and taking title solely in the Appellant’s
name, both parties continually referred to the residence as “our home”, and both
parties contributed to improving the house. (RR Vol. 3, pp. 74-77; RR Vol. 4, pp.
78-82, 159; and Petitioner’s Ex. 1; emails dated May 25, 2004; July 6, 2004; July
16, 2004; July 30, 2004; August 25, 2004; September 2, 2004; July 13, 2006;
August 3, 2006; August 17, 2006; September 26, 2006; December 18, 2006; and
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October 14, 2008). Appellant’s Brief altogether ignores these significant,
contributing factors which justify the Trial Court’s decision. Again, conveniently,
Appellant’s Brief mischaracterizes the evidence by falsely alleging separate
property funds were used to acquire the Raguet Street residence and completely
fails to acknowledge the admitted benefit both parties received from financing the
acquisition without consideration of Appellee’s poor credit. Nothing in
Appellant’s Brief justifies derogation from the reasoning provided in the Aaron
and Harrington cases. Notwithstanding such fact, Appellant falsely claims that
such cases are against public policy.
Appellant disingenuously cites Section 26.01(b)(3) of the Texas Business
and Commerce code with reference to “agreement made on consideration of
marriage or on consideration of nonmarital conjugal cohabitation”. Such section is
altogether inapplicable herein because none of the agreements to which Appellant
makes issue are “on consideration of marriage”. Thus any public policy
discussions contained in Appellant’s brief are superfluous and irrelevant.
Point 4. The Trial Court did not abuse its discretion in failing to find that the
marital residence was not purchased with Appellant’s separate property
funds
The evidence demonstrates, however, that the initial down payment on the
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Raguet Street residence purchase was provided from business revenue generated
by the combined efforts of Appellee and Appellant and paid from a First Bank and
Trust of East Texas basic business checking bank account jointly owned by both
Appellee and Appellant. (RR Vol. 2, p. 99, 131-133; RR Vol. 3, pp. 45-54; and
Petitioner’s Ex. 6). The payments in reduction of principal on the mortgage
secured by the Raguet Street residence were made from business revenue
generated by the combined efforts of Appellee and Appellant (RR Vol. 3, pp. 45-
55 and Petitioner’s Exhibit(s) 4, 10, 11, and 12). Any and all inheritance or other
separate property funds belonging to Appellant, including but not limited to
Appellant’s inheritance from his father, were deposited into a savings account
commingled with other funds and then deposited into a money market account and
comingled with other funds used to pay living expenses for both parties over the
years prior to the purchase of the Raguet Street residence. Appellee produced
exhibits that evidence the business revenue used to fund the initial down payment
and regular monthly payments on the mortgage secured by the Raguet Street
residence (Petitioner’s Exhibit(s) 4, 10, 11, and 12). None of the funds used for the
initial down payment or regular monthly payments on the Raguet Street residence
were from funds received from the United Kingdom. In fact, Appellant admitted
on the stand an inability to prove any tracing information for the payments on the
Raguet Street residence. (RR Vol. 4, p. 161-63). Thus, the Trial Court found that
25
neither the initial down payment nor the regular monthly payments on the
mortgage secured by the Raguet Street residence were funded from Appellant’s
money market account, i.e. the account claimed to contain separate property funds
belonging to Appellant. (RR Vol. 3, pp. 45-55 and Petitioner’s Exhibit(s) 4, 10,
11, and 12).
Point 5. The Trial Court did not abuse its discretion when it disregarded
Appellant’s allegation that Appellee committed fraud on the community estate
Contrary to the allegations made in Appellant’s brief, the evidence
demonstrates that Appellant was aware and consented to the expenditures for
which he makes complaint on appeal, i.e. remodeling Appellee’s aunt’s house,
since such efforts and expenses were expended by both Appellant and Appellee
(RR Vol. 1, p. 16; RR Vol. 2, p. 69; and RR Vol. 4, p. 143). In fact, the evidence
demonstrates that Appellant was not only aware and consented, but that he actually
benefited from staying in the aunt’s residence while obtaining medical assistance
nearby. (RR Vol. 2, p. 69 and RR Vol. 4, p. 111). As for fraudulent expenditures
of the community estate, the only credible evidence was that Appellant spent
substantial sums to visit the United Kingdom and his prior family. (RR Vol. 2, p.
104-105 and RR Vol. 4, p. 12).
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Point 6. The Trial Court did not abuse its discretion by disregarding evidence
of benefits received by Appellee during the marriage
The evidence demonstrates that the benefits received by Appellee during the
marriage were in acknowledgment and compensation for the business services
rendered by Appellee for their joint business enterprise. (RR Vol. 1, p. 47). By
written correspondence, Appellant acknowledged Appellee’s business services
consistently from 2004 through 2011. (RR Vol. 2, p. 115; RR Vol. 3, pp. 71-73;
and Petitioner’s Exhibit 1, email(s) dated May 25, 2004; July 13, 2004; July 16,
2004; August 2, 2004; August 13, 2004; June 23, 2005; May 2, 2006; April 27,
2006; May 3, 2006; May 4, 2006; July 12, 2006; July 13, 2006; October 18, 2006;
April 4, 2007; November 14, 2008; and January 14, 2011). Moreover, the
evidence demonstrates that Appellant made transfers and/or withdrawals of
community funds without the knowledge and/or consent of Appellee. (RR Vol. 4,
p. 12). Altogether, the evidence demonstrates that Appellant’s expenditures of
community funds and/or benefits received exceed Appellee’s corresponding
expenditures and/or benefits.
Point 7. The Trial Court did not abuse its discretion in finding Appellant at
fault in the breakeup of the marriage
It is uncontroverted that Appellant is guilty of cruel treatment, assault, and
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battery of Appellee. (RR Vol. 2, pp. 47, 54, 56, 60-61, 67-68, 70-71). Such
evidence is corroborated by witness testimony. (RR Vol. 2, pp. 155-56). While
the Appellant attempts to dismiss these examples of cruel treatment, assault, and
battery, Appellant seems completely unaware that a “touch” is what constitutes
battery while assault only requires the threat of a “touch”. See §22.01 TEXAS
PENAL CODE. Thus, while attempting to dismiss the incidents of Appellant’s
assaulting Appellee, Appellant’s Brief merely argues that many of the incidents of
assault do not rise to the level of battery. Such disingenuous arguments by
Appellant are immaterial and irrelevant. The evidence also clearly demonstrates
that Appellant abandoned Appellee for several months in 2012, under false,
deceptive pretenses. (RR Vol. 2, p. 72-76; RR Vol. 3, p. 35; and RR Vol. 4, p.
155). The evidence further demonstrates that it was during this period of
abandonment in 2012, that Appellee was able to investigate and confirm the
forgeries and fraud perpetrated by the Appellant upon the Appellee, to discover
Appellant’s extramarital solicitations, and to reach the final conclusion that the
marriage was irreconcilable. (RR Vol. 2, p. 77-96, 102-03; and RR Vol. 4, pp.
156-57). Considering the Appellant’s lack of credibility and admissions of lying to
Appellee and hiding money from Appellee in the United Kingdom, Appellant was
correctly found at fault. (RR Vol. 1, p. 28 and RR Vol. 3, pp. 69, 126). Similarly,
Appellant’s admissions of forgery and falsifying documents are significant factors
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in the finding of Appellant at fault. (RR. Vol. 4, p. 25-27, 145, 200-01). For such
reasons, Appellee is justly entitled to a disproportionate award against Appellant
and spousal maintenance.
Point 8. The Trial Court did not abuse its discretion when it ordered
Appellant to pay spousal support to Appellee
The evidence demonstrates that Appellant has made admissions against his
interests in direct contravention of the allegation made in Appellant’s eighth point
of error, i.e. that he lied to Appellee and hid assets from Appellee in the United
Kingdom. (RR Vol. 1, p. 28 and RR Vol. 3, p. 69). The Trial Court acknowledged
Appellant’s credibility issues. (RR. Vol. 4, p. 25-27 and RR Vol. 4, pp. 145, 200-
01). When it was convenient for Appellant, substantial sums of money were
transferred from the UK to Appellant for which no debt or repayment obligations
were commemorated. (RR Vol. 2, pp. 140-42 and RR Vol. 3, pp. 64, 131-32, 136-
37). Appellant has admitted that he has the use and enjoyment of his prior marital
residence with his prior wife, Bridgett Graham. (RR Vol. 1, pp. 33, 34). Further,
Appellant failed to provide any credible documentation to dispute that he has
access to substantial assets in the United Kingdom and repeatedly admitted to
having accounts and access to funds in the United Kingdom. (RR Vol. 1, pp. 49,
64, 67-68, 70-71, 83-85 and RR Vol. 4, pp. 149-50, 152). And finally, the
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evidence demonstrates that Appellant has access to substantial funds and paid his
attorney during the period he was obligated to pay spousal support. (RR Vol. 2,
pp. 140-42 and RR Vol. 3, pp. 64, 131-32, 136-37). For such reason, the Trial
Court correctly concluded that Appellant has funds with which to pay support to
Appellee. (RR Vol. 3, pp. 80-81 and RR Vol. 4, pp. 199-200).
Point 9. The Trial Court did not abuse its discretion in awarding a
disproportionate part of the Back Lot tract adjoining the Raguet Street
residence
As discussed herein, the Trial Court justifiably found the Appellant at fault
and accordingly awarded a disproportionate part of the Back Lot tract adjoining the
Raguet Street residence. As the purchase of the Back Lot to the Raguet Street
residence was after the date of marriage of the parties, title to the Raguet Street
residence was exclusively held in the name of Appellant only because Appellee’s
credit score would have resulted in a higher mortgage interest rate. By
correspondence to Appellee, Appellant acknowledged the savings received from
their method of financing the Raguet Street residence only in Appellant’s name.
(RR Vol. 4, p 159 and Petitioner’s Exhibit 1; email dated August 17, 2006). It
was, however, Appellee who handled the closing coordination on the Raguet Street
residence and Back Lot closings. (RR Vol. 2, p. 28-29). Again, the parties agreed
30
that title to the Back Lot was recorded exclusively in the name of Appellant,
although purchased after the date of marriage of the parties, because Appellant was
able to obtain better financing terms without the joinder of Appellee on the loan.
None of the funds used for the initial down payment or regular monthly payments
on the Back Lot were from funds received from the United Kingdom. In fact,
Appellant admitted on the stand an inability to prove any tracing information for
the payments. (RR Vol. 4, p. 161-63). Thus, the Trial Court found that no funds
used in payment on the Back Lot were from any account claimed to contain
separate property funds belonging to Appellant. (RR Vol. 3, pp. 45-55 and
Petitioner’s Exhibit(s) 4, 10, 11, and 12). As for the outstanding “loan”, i.e. the
$15,000 Appellant borrowed from Robert McCatty and Kathleen McCatty,
Appellant’s brother-in-law and sister, the Final Decree of Divorce entered herein
provides for final payment of same.
Conclusion
As set forth above, the evidence clearly demonstrates that the Trial Court did
not abuse its discretion. The Final Decree of Divorce entered herein is justified
and founded on careful considerations of all credible evidence provided herein.
The Trial Court justifiably concluded that Appellant has credibility issues;
committed relevant, material, and wrongful acts against the Appellee to rise to the
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level of being at fault in the breakup of the marriage; and has access to assets
hidden from Appellee in the United Kingdom. Moreover, the Trial Court
reasonably concluded that the Raguet Street residence and Back Lot were acquired
by funds obtained by the efforts of both parties; were titled and financed
exclusively in Appellant’s name solely for the purpose of obtaining better credit
terms; were used, enjoyed, and represented to be jointly owned; and were
substantially improved by the efforts of Appellee in justifiable reliance upon
Appellant’s representations that the property was jointly owned. And finally, the
Trial Court reasonably concluded that no expenditures by Appellee of community
funds were without Appellant’s consent, knowledge, participation, or benefit. For
such reasons, the Trial Court did not abuse its discretion in awarding Appellee a
disproportionate award.
Prayer
Wherefore, premises considered, Appellee Dena Marie Turner prays that this
Honorable Court affirm the Final Decree of Divorce entered against the Appellant
Frederick Dawson Graham on September 3, 2014, under Cause No. C1228635, in
the County Civil Court at Law of Nacogdoches County, Texas.
Respectfully Submitted,
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/s/ Jarett T. LaRochelle
Jarett T. LaRochelle
Texas Bar No. 24041296
One Riverway, Suite 1700
Houston, Texas 77056
713-907-8668 telephone
713-840-6351 facsimile
ATTORNEY FOR APPELLEE DENA
MARIE TURNER
Certificate of Compliance
This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a convention typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
less than 6,000 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).
/s/ Jarett T. LaRochelle
Jarett T. LaRochelle
Certificate of Service
I hereby certify that a true and correct copy of the foregoing notice has been
forwarded to the following parties or their counsel of record in accordance with the
Texas Rules of Civil Procedure on this the 26th day of May, 2015:
Mr. Tom Rorie
State Bar No. 17238000
210 North Street
Nacogdoches, Texas 75961
936-559-1188 telephone
936-559-0099 facsimile
33
/s/ Jarett T. LaRochelle
Jarett T. LaRochelle
34