Mark Alan Blair v. Rita Gail Blair

ACCEPTED
08-19-00304-CV
EIGHTH COURT OF APPEALS
08-19-00304-CV EL PASO, TEXAS
3/11/2021 3:16 PM
ELIZABETH G. FLORES
CLERK
No.08-19-00304-CV
FILED IN
8th COURT OF APPEALS
EL PASO, TEXAS
In the Court of Appeals for the Eighth Judicial 3/11/2021
District 3:16:57 PM
ELIZABETH G. FLORES
EI Paso, Texas Clerk
MARK ALAN BLAIR,
Appellant,
v.
RITA GAIL BLAIR,
Appellee.
On Appeal from the
112th Judicial District Court, Reagan County
Honorable Pete Gomez, Jr. Presiding
BRIEF FOR APPELLANT MARK ALAN BLAIR
Respectfully submitted,
LAW OFFICE OF REBECCA DAVIS, P.L.L.C.
11200 South Street, Suite 228
Weatherford, Texas 76086
TELEPHONE: 817.341.4500
TELECOPIER: 817.594.8100
rebecca@rdavislaw.com
/ s / Rebecca Davis
SBOT No. 24048422
NO ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Appellant:
Mark Alan Blair
Appellate and Trial Counsel for Appellant:
Rebecca Davis
Law Office of Rebecca Davis, P.L.L.C.
1200 South Main Street, Suite 228
Weatherford, Texas 76086
rebecca@rdavislaw.com
SBOT No. 24048422
Appellee:
Rita Gail Blair
Trial Counsel for Appellee:
J.W. Johnson
Law Offices of J.W. Johnson & Jana Johnson, P.L.L.C.
125 South Irving Street
San Angelo, Texas 76903
j lo@johnsonlawoffices.org
SBOT No. 10757600
J ana Johnson
Law Offices of J.W. Johnson & Jana Johnson, P.L.L.C.
125 South Irving Street
San Angelo, Texas 76903
jlo@johnsonlawoffices.org
SBOT No. 24076464
Appellate Counsel for Appellee:
Jana Johnson
Law Offices of J.W. Johnson & Jana Johnson, P.L.L.C.
125 South Irving Street
San Angelo, Texas 76903
jlo@johnsonlawoffices.org
SBOT No. 24076464
TABLE OF CONTENTS
Page
Identity of Parties and Counsel. " . . . . . . .. . . . . . .. .. . .. .. . . . . . . .. . . . . . . .. . . .. . . 1
Index of Authorities.. 11
Statement of the Case........................................................... VI
Issues Presented...................................................... VII
Statement of Facts. 1
I. Background
II. Tracing of Appellant's Real Properties
III. Appellee's Reimbursement Claims
IV. Appellant's Claims of Fault in the Marriage
Summary of the Argument. . . . . ..... . .. . .. . . .. . . . .. . . . . .. .. .... 5
Standard of Review. 7
Arguments. . . . . . . . .. . .. .. . . . . . . . .. . . . . . . .. . . . . . . . . . . .. . . . . . . . .. . . . . . . . . . . 9
I. Appellant's Constitutional Rights Were Violated
A. Trial Court's Award of Appellant's Separate Property to Appellee
B. The Violation of Appellant's Constitutional Rights Resulted in an
Unfair and Inequitable Apportionment of the Community Estate
C. Transmutations of Separate Property Do Not Convert Separate
Property into Community Property
II.Appellee's Pleas for Reimbursement Are Legally and Factually
Insufficient
III. Appellee's Claims for Fault in Dissolution of Marriage Are Legally and
Factually Insufficient
A. Appellee's Accusations of Appellant's Alleged Use of Illegal
Substances
B. Appellee's Accusations of Appellant's Cruel Behavior
C. Appellee's Accusations of Appellant's Adulterous Affairs
11
Prayer................................................................................ 20
CertificateofCompliance......................................................... 21
Certificateof Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... 21
III
INDEX OF AUTHORITIES
Constitutional Provisions
TEXAS CONSTITUTION ART. XVI, SECTION 16
Statutes and Rules
TEX. FAM. CODE ANN.
§ 3.003 .
§ 7.001 .
Cases Page(s)
Burney v. Burney,
225 S.W.3d 208, 215 (Tex. App.-EI Paso 2006) .
Celso v. Celso,
864 S.W. 652,655 (Tex. App.-Tyler 1993) .
Chafino v. Chafmo,
228 S.W. 467,473 (Tex. App.-El Paso 2007) .
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238,241-42 (Tex. 1985) .
Garcia v. Garcia,
170 S.W.3d 644,648 (Tex. App.-EI Paso 2014) .
Hilliard v. Hilliard,
725 S.W.2d 722,723 .
Jacobs v. Jacobs,
687 S.W. 731, 732 (Tex. 1985) .
McKinley v. McKinley,
496 S.W. 540, 543 (Tex. 1973) .
Murffv. Murff,
615 S.W.2d 696,699 (Tex. 1981) .
In re Marriage of McCoy and Eis .
488 S.W.3d 430 (Tex. App.-Houston [14th Dist.] 2016)
Lucy v. Lucy,
162 S.W.3d 770 (Tex. App.-EI Paso 2005) .
IV
Richardson v. Richardson,
424 S.W.3d 961 (Tex. App.-El Paso 2014) .
Sprick v. Sprick,
25 S.W.3d 7, 11 (Tex. App.-El Paso 1999) .
Tarver v. Tarver,
394 S.W.2d 780, 783 (Tex. 1965) .
Vallone v . Vallone,
644 S.W.2d 455 (Tex. 1982) .
Viera v. Viera,
331 S.W.3d 195,206 (Tex. App.-El Paso 2011) .
v
STATEMENT OF THE CASE
Nature of the Case: On June 19, 2015, in Reagan County, Appellee filed for
divorce from Appellant. CR.6. Prior to the marriage,
Appellant worked as a home builder who bought and sold
various pieces of real property, some of them raw and
some with homes situated upon them. CR.8-14. Also, prior
to the parties' marriage, Appellant purchased
approximately sixty-three acres of property located in
Parker County, Texas. 2CR.18. The parties built a home
on the sixty-three acres. Appellee sought reimbursement
for unproven expenses and unproven labor allegedly
exerted on her part during the construction of the home.
Course of Proceedings: On June 6, 19,2015, Appellee filed her Original Petition
for Divorce. CR.6. On July 6, 2015, Appellant filed his
Original Answer to Petitioner's Original Petition for
Divorce, CR.23, as well as his Original Counterpetition
for Divorce. CR.26. On October 2, 2015, Appellee filed
her First Amended Original Petition for Divorce. CR.50.
On October 5, 2015, Appellant filed his First Amended
Original Counterpetition. CR.76. On July 11, 2018, the
first day of the parties' bench trial was held. CR.I-13 7. On
November 20, 2018, the second day of the parties' bench
trial was held. SV2RR.8-94. On December 3, 2018,
closing arguments from counsel from Appellant were
heard. 3RR.4-13. In February 2019, closing arguments
from counsel for Appellee were heard. On February 7,
2019, the trial court issued its written ruling. 2SVIRR. 4-
9. On September 6, 2019, the trial court entered its Final
Decree of Divorce. CR.267-82. On September 26, 2019,
Appellant filed his Motionfor New Trial. CR.285.
Trial Court: 112th Judicial District Court, Reagan County
Honorable Pete Gomez, Jr. Judge Presiding
VI
ISSUES PRESENTED
ISSUE I Whether or not the trial court committed abuse of discretion when it
awarded a portion of Appellant's separate property to Appellee.
A. Whether the trial court's abuse of discretion caused harm to
Appellant when his constitutional rights were violated while, at the
same time, being ordered to assume the entire debt on his separate
property.
B. Whether the violation of Appellant's constitutional right resulted in
an unfair and inequitable apportionment of the community estate.
C. Whether transmutations of separate property convert that separate
property into community.
ISSUE II: Whether Appellee met her burden of proof in her claims for
reimbursement.
ISSUE III: Whether Appellant sufficiently substantiated her claims against
Mark for the dissolution of the marriage.
Vll
STATEMENT OF FACTS
I. BACKGROUND
From 1988 until 1991, Appellant, Mark Alan Blair, was a home builder
who invested in real property: some raw land, some restoration of homes, and the
construction of some "spec" homes. 2RR.20, 27. From 1991 until 1999, Mark,
while still building homes on his off duty hours, worked as a law enforcement
officer. 2RR.38. In 1999, Mark returned to the construction business and
continued in the construction business, in form or another, until now.
On October 26,2002. Mark married Appellee, Rita Gail Blair. CR.7. No
child was born of their marriage, CR.7, although both Mark and Rita have several
grandchildren/great-grandchildren. From the time they married until sometime in
2010, when the couple moved to Big Lake, Texas, the parties resided in Parker
County, Texas 2RR.12.
Several times during her testimony, Rita testified that, the entire time she
and Mark were married, she worked with him in the construction business. One
such claim reads as follows, "1 went to work with him every day. We built
houses." 2RR.14. And, in another such claim, Rita testified, " ... 1 was working
on a home. He was working on another home, finishing it up." 2RR4. On Mark
and Rita separated in June 2015. CR.7.
II. Tracing of Appellant's Separate Real Properties
A. 5197 Zion Hill Road
In 1984, Mark purchased 5197 Zion Hill Road, Weatherford, Texas.
2RR.8-9. Prior to his marriage to Rita, Mark sold the Zion Hill property.
B. 123 Vaughn Lane
After Mark sold his Zion Hill property, and before he married Rita, one
of the next pieces of property purchased by Mark was 123 Vaughn Lane,
Weatherford, Texas. 2RR.10-11. On September 30, 1999, Mark purchased this
home-which became his residence-for $51,750.00. Rita acknowledges the
Vaughn Lane property was Mark's separate property. 2SRR15. On June 1,2001,
Mark sold the Vaughn Lane residence for $150,000.00 and paid off the mortgage
held by Pinnacle Bank. 2RR.11. On June 4, 2001, Mark received $80,466.08 in
equity from this sale which was deposited directly into Texas Bank, account
number xxx7391. 2RR.11.
C. 2531 Carter Road
The proceeds Mark received from the sale of the Vaughn Lane property
were deposited and earmarked for the commencement of the construction on
Mark's home at 2531 Carter Road which would eventually become 2525 Carter
Road, Springtown, Texas.
2
III. Appellee's Reimbursement Claims
A. The Community Estate Is Due Reimbursement for Funds and Assets
Expended by the Community Estate for the Benefit of Appellant's
Separate Estate
This claim is made for the reimbursement of "funds and assets" that were
depleted from the community estate. This claim further pleads that, if
reimbursement is not made to the community estate, then Mark's separate estate
will enjoy unjust enrichment.
B. Appellee's Separate Estate Is Due Reimbursement from the
Community Estate
This claim is made for the reimbursement of "funds and assets" that
were depleted by Appellee's separate estate for the benefit of the community
estate. This course of reimbursement would, of course, require proof that
Appellee had expended funds and assets for the benefit of the community estate.
C. Appellee's Separate Estate Is Due Reimbursement from Appellant's
Separate Estate
This claim is made for the reimbursement of "funds and assets" that were
depleted by Appellee's separate estate for the benefit of Appellant's separate
estate. Again, this course of reimbursement would, of course, require proof that
Appellee had expended funds and assets for the benefit of the community estate.
IV. Appellee's Claims of Fault in the Marriage
3
A. Adultery
Although Rita tried to prove that Mark committed adultery during their
marriage, she falls extremely shy of her burden of proof (which shall be addressed
further in arguments section below).
B. Cruelty
Although Rita claims Mark treated her cruelly during their marriage,
she falls extremely shy of her burden of proof (which shall be discussed further
in arguments section below) in this regard as well.
C. Use of Illegal Substances
Although Rita claims Mark engaged in the use of illegal substances during
their marriage, once more she falls incredibly short of meeting her burden of
proof.
4
SUMMARY OF THE ARGUMENT
The trial court erred when it awarded Mark's separate property to Rita.
Both the Texas Constitution and the Texas Family Code dictate that property
owned by a spouse prior to the marriage shall remain that spouse's separate property.
This error resulted in an unfair and inequitable division of the community estate.
Furthermore, separate property shall retain its character through a series of
exchanges and mutations. Thus, regardless of any loans borrowed and signed by
both spouses, promissory notes executed by both spouses, or liens executed separate
property remains separate property.
The standard rule of thumb when dividing the marital estates is "community
m / separate out." This presumption applies to both assets and liabilities of
community property.
There are three elements that constitute a reimbursement claim: (a) a
contribution was made by one marital estate to another; (b) the contribution was
reimbursable; and (c) the value of the contribution. Reimbursement is an equitable
remedy and court of equity are required to look at all facts and circumstances before
determining a fair, just and equitable division of the marital estates. A spouse
seeking to prevail on a claim for reimbursement must establish the value of said
claim.
5
The trial court's failure to reimburse Appellant's separate estate resulted in an
unjust and grossly disproportionate division of the community estate.
6
STANDARD OF REVIEW
This Court, as most Texas Courts of Appeals, "reviews appealable issues in a
family law case, such as property division incident to divorce or partition,
conservatorship, visitation, and child support, under an abuse of discretion
standard." Richardson v. Richardson, 424 S.W.3d 961 (Tex. App.-EI Paso 2014)
(citing Garcia v. Garcia, 170 S.W.3d 644, 648 (Tex. App.-EI Paso 2005). To
ascertain whether or not an abuse of discretion has occurred, the reviewing court
must determine "whether the trial court acted without reference to any guiding rules
and principles." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985).
The Texas Family Law Code requires a trial court to "divide the estate of the
parties in a manner that the Court deems is just and right ... " TEx. FAM. CODE Ann.
§ 7.001. While the trial court's division of the marital estates must be equitable, law
does not dictate the court to divide the community property equally. Chafino v.
Chafino, 228 S.W.3d 467,473 (Tex. App.-EI Paso 2007).
For this Court to determine whether or not the trial court abused its discretion
in the division of the estate of the parties, a two-pronged test is used: (1) Did the trial
court have sufficient information upon which to exercise discretion, and (2) did the
trial court abuse its discretion by making a property division that was manifestly
7
unjust or unfair? Burney v. Burney, 225 S.W.3d 208, 215 (Tex. App.-El
Paso 2006).
The Murffv. Murff court set forth a list of factors the trial court may consider
in dividing the marital estate: "(1) the spouses' capacities and abilities; (2) benefits
which the party not at fault would have derived from the continuation of the
marriage; (3) business opportunities; (4) relative physical conditions; (5) relative
financial conditions; (6) disparity of ages; (7) size of separate estates; (8) the nature
of the property; and (9) disparity of earning capacity. Murffv. Murff, 615 S.W.2d
696, 699 (Tex. 1981).
If this court finds reversible error that materially affects the trial court's "just
and right" division of the property, [the court] must remand the entire community
estate for a new division. See Jacobs v. Jacobs, 687 S.W.2d 731, 732 (Tex. 1985).
When the trial court does not make findings of fact and conclusions of law,
this Court "must presume the trial court made all the findings necessary to support
the judgment." Sprick v. Sprick, 25 S.W.3d 7, 11 (Tex. App.-EI Paso 1999).
8
ARGUMENTS
I. Appellant's Constitutional Rights Were Violated.
A. The Trial Court's Award of Appellant's Separate Property to Appellee
The Texas Constitution demands as follows: "All property, both real
and personal, of a spouse owned or claimed before a marriage ... shall be the separate
property of that spouse." TEX. CONST. ART. XVI, § 16.
The trial court's judgment also failed to comport with section 3.001 of
the Texas Family Code: "A spouse's property consists of ... the property owned or
claimed by the spouse before marriage ... " TEX. FAM. CODE ANN. § 3.001.
The burden of proof that must be met to assure that a party is guaranteed these
rights is as follows: "Absent clear and convincing evidence to the contrary" these
rights are unequivocal. TEX. FAM. CODE ANN. § 3.003. The definition of "clear and
convincing proof' is defined by the Viera court: "Clear and convincing evidence is
the proof that produces in the mind of the trier a firm belief or conviction as to the
truth of the allegations sought to be established." Viera v. Viera, 331 S.W.3d 195,
206 (Tex. App.-EI Paso 2011).
Parties claiming certain property as their separate property have the burden of
rebutting the presumption of community property. McKinley v. McKinley, 496
S.W.2d 540, 543 (Tex.1973). To do so, they must trace and clearly identify the
property in question as separate by clear and convincing evidence. Id. (citing Tarver
9
v. Tarver, 394 S.W.2d 780, 783 (Tex. 1965)).
Tracing involves establishing the separate origin of the disputed property
through evidence showing the time and means by which the spouse originally
obtained possession of the property. Hilliard v. Hilliard, 725 S.W.2d 722, 723 (Tex.
App.-Dallas 1985).
In meeting his burden of proof to be assured of this constitutional right
addressing separate property, Mark commenced tracing his seed money to construct
his residence at 2525 Carter Road (which was carved out of2531 Carter Road) when
he purchased his first piece of real property in 1984. This property was located at
5197 Zion Hill Road, Weatherford, Texas, and Mark paid $34,500.00 for this
property. 2RR.8-10. Mark testified this property was first financed by Rural
Development. 2RR.9. On December 1, 1993, Mark refmanced this property with
mortgage holder Texas Independent Bank for $32,500.00. 2RR.9-1 o. Mark then sold
this property and owner financed it. 2RR.l o.
After selling the Zion Hill Road property, Mark next fmanced 123 Vaughn
Lane-which became his new residence-for $51,570.00. 2RR. 10-11. On June 1,
2001, Mark sold the Vaughn Lane property for $150,000.00. 2RR.l1. After paying
off the mortgage on Vaugh Lane, Mark made $80,466.00 in equity which he directly
deposited into Texas Bank. 2RR.l1. This was the seed money to be held until Mark
10
was able to commence the construction of his home at what would become 2525
Carter Road. The Texas Bank account, xxxx391, is the bank account into which
Mark made his business deposits-including, but not limited to, the equity check
from the sale of Vaughn Lane and the payments on the Carter Road properties.
2RR.45, 49.
During cross-examination, Mark again clarified the separate nature of the
funds from the sale of Vaughn Lane-the seed money to commence construction of
the 2525 Carter Road residence. 2RR.54-55. Mark also clarified the nature of the
account into which he deposited his business deposits-pre-marriage. 2RR.55-56;
59-61.
On January 10, 200 I-before the parties married on October 26, 2002-Mark
purchased approximately sixty acres of land located at 2531 Carter Road, with a
farmhouse situated on this acreage, from Oliver Wilhite for $120,000.00.
SV3RR.P.31 The address for this property is 2531 Carter Road. 2RR.17. Rita claims
this property is community property. CR.237. Rita acknowledges that the 2531
Carter Road Property is Mark's separate property.
lThe Petitioner's exhibits proffered in the Reporters Record are not numbered by page. There are a few "Petitioner's
Exhibit _" stickers. However, for the most part, Petitioners exhibits are numbered in handwritten print at the
bottom of the first page of each page. Accordingly, references to all exhibits will be as follows: handwritten print at
the bottom of the first page of each exhibit (i.e., "P4").
11
Mark commenced construction of his home on June 1,2001. 2RR.15-16.
It took Mark, with manual labor provided by Rita, lRR.35, approximately six to
seven years to complete construction of the home. 2RR.21. When the construction
finally completed, and the farmhouse was no longer the only structure located at
2531 Carter Road, a new address was assigned to the new residence: 2525 Carter
Road, Springtown, Texas.
Having proven that the property and the residence is Mark's separate
property, the trial court denied Mark of his constitutional rights regarding separate
property. The denial of this constitutional right resulted in an unfair and inequitable
apportionment of the community estate.
The parties eventually found themselves owing a significant amount of
debt (credit cards, mortgage payments, etc.). 2RR.29. In 2007, when Mark was
unable to secure a loan from a financial institution, and was facing the possibility of
foreclosure on 2531 Carter Road property, Mark had no recourse but to borrow
$200,000.00 from his parents. 2RR28-29. Mark and Rita both signed off on the
promissory note for $200,000.00.
B. The Violation of Appellant's Constitutional Rights Resulted in an
Unfair and Inequitable Apportionment of the Community Estate.
Because the trial court deprived Mark of his separate property (of which
the court awarded fifty percent ownership to Rita), and then ordered him 100 percent
12
financially responsible for all debt owed on that property (and zero percent of that
debt awarded to Rita), the trial court rendered an unfair and inequitable
apportionment of the community estate. The debt owed on Mark's separate property
is $36,942.00. As the transcript reflects, Mark traced his separate properties down
to dates of purchases, dates of sales, dates of deposits, bank account numbers: the
2525 property was clearly proven to be Mark's separate property.
In essence, the trial court denied Mark his constitutional rights by
deprived him of ownership of his separate property, and saddling him with 100
percent of the debt owed on the property of which he was deprived. If this is not the
epitome of an unfair and inequitable apportionment of a community estate, perhaps
there shall never be any such inequity.
C. Transmutations of Separate Property Do Not Convert That
Separate Property into Community Property.
Whether the property be community property or separate property, the
property shall retain its original character so long as the party claiming separate
ownership can overcome the presumption of community property by tracing the
assets back to property that--due to its time and/or method of acquisition-is
separate in character. Celso v. Celso, 864 S.W.652, 655 (Tex. App.-Tyler 1993).
13
Rita testified that, in her opinion, [ once] 2531 Carter Road was refinanced,
itbecame community property. 2SRR.28. As the Celso court clarified, such is not
the
case. None of Mark's separate properties were converted to community property
simply due to transmutations. Transmutations of separate property do not convert
that separate property into community property.
Il, AppeDee's Pleas for Reimbursement Are Legally and Factually Insufficient
Rita pleaded for reimbursements of three types: (1) the community estate is
due reimbursement for funds and assets expended by the community estate for the
benefit of appellant's separate estate; (2) the community estate is due reimbursement
for funds and assets expended by the community estate for the benefit of appellant's
separate estate; (3) the community estate is due reimbursement for funds and assets
expended by the community estate for the benefit of appellant's separate estate.
Reimbursement is equitable in nature. Courts of equity are bound to look at
all of the facts and circumstances involving reimbursement claims in order to
determine what is fair, just, and equitable. Penick v. Penick, 783 S.W.2d 194 (Tex.
1988).
The McCoy and Els court held that, in order to prevail on a reimbursement
claim, the value of the claim must be established. In re Marriage of McCoy and Els,
14
488 S.W.3d 430 (Tex. App.-Houston [14th Dist.] 2016. This court has addressed
the reimbursement on numerous occasions and, in doing so, has set forth several
formulaic approaches to determining the equitable dollar amount for reimbursement.
See Lucy v. Lucy, 162 S.W.3d 770 (Tex. App.-El Paso 2005; Richardson v.
Richardson, 424 S.W.3d 691 (Tex. App.-El Paso 2014). The Texas Supreme Court
has analyzed this issue in the landmark case of Vallone v. Vallone, 644 S.W. 455(Tex. 1982). The one common denominator in these cases regarding reimbursement
is the party seeking reimbursement has to provide tangible proof that such a claim is
just. Rita has egregiously failed to do so---despite her attempts.
In several different approaches, Rita attempted to prove a claim for
reimbursement regarding her funds she had provided towards the construction of the
residence at 2525 Carter Road. For example, Rita claimed she "built the road back
to where [they] were going to build the house. [She] paid for the septic system that
went to the house out of [her] pocket." 2SRR.16. However, when questioned by
Mark's counsel regarding the production of receipts for the road surfacing and the
septic system, she responded that "Mark should have those." 2SRR.82. When
presented with Mark's check number 2198 and asked to testify as to how check read,
her response was, "This shows where he paid me back for the road and the septic
system." 2SRR.83. When pressed as to whether she really paid for the road and the
15
septic system, she contended she did make those payments. And, when further
pressed, "But he reimbursed you?"-she fmally responded, "Okay." 2SRR.83. It is
clear Rita had no proof whatsoever as to any funds she expended on the residence
in question.
Rita apparently attempts to claim reimbursement for time, toil, and labor-
claiming she "built the road back to where [they] were going to build the house.
2SRR.16. On direct examination, Rita testified that she and Mark worked side-by-
side in his home construction business. 2SRR.14. However, Rita also testified that
that she had been unemployed for two years-without any efforts to find
employment in the construction business. 2SRR.92. Her explanation for her lengthy
unemployment was the need to care for her very ill granddaughter and newborn
great-grandchild.
It was Rita's burden of proof to establish how many dollars she contributed to
the construction of the new residence as well as how many hours she contributed.
Not only could she do neither, but she was far less than truthful about monetary
contributions she had made towards the construction of the home.
Rita's claims for reimbursement fall well shy of legal and/or factual
insufficiency, and, therefore, should have been denied by the trial court
16
III. Appellee's Claims for Fault in the Dissolution of the Marriage Are
Legally and Factually Insufficient
While it is apparent that Rita tried everything possible to place fault for the
breakup of the marriage on Mark, she offered scanty-if any-proof of such claims.
A. Appellee's Accusations of Appellant's Alleged Use of Illegal
Substances
Rita attempted to paint a picture of Mark as a pot smokin', cocaine snortin'
ne' er do well. When asked by her counsel if she had ever "seen Mark do any illegal
drugs," she responded, "He did a lot of, very regularly did pot. And another instance
he admitted to doing cocaine." 2SRR.35-6. Rita tried to connect Mark's drug use to
him being "very, very moody." 2SRR.36.
B. Appellee's Accusations of Appellant's Cruel Behavior
Appellee testified she "went to Mark's parents-because he got violent."
2SRR.36. Mark has never been charged with possession of any illegal substances.
To the contrary, he worked as a certified police officer for nine years and voluntarily
resigned from the force. Rita testified that, when Mark became physical with her in
Springtown, she went to the Parker County Sheriffs Office, but "his
buddies ... pretty much talked to me about not filing charges, work it out ... "
2SRR.3 7. The court erred in overruling an objection as to admitting third party
hearsay regarding alleged statements made by Mark's "buddies" at the sheriff's
17
department. Contrary to the court's ruling, the hearsay was not a party admission: It
as, indeed, third party hearsay. 2SRR.37-8. The record is silent as to any police
reports being filed; any medical care being sought; any counseling being undertaken;
any 911 emergency calls.
Rita testified to an incident that occurred in Big Lake, Texas when Mark
allegedly became physically abusive toward her. A close examination of the record
shows that, under cross-examination, it took fifteen lines of questioning/testifying
for Rita finally admit that she went to the Reagan County Sheriff's Department
because [her] attorney instructed her to do so. 2SRR.88. Rita testified that there was
a hearing on this alleged abuse report that she could not attend because she was to
appear in Fort Stockton on the same day for a hearing in the divorce matter.
2SRR.89. When asked if she "would be surprised to know the county attorney had
dismissed her alleged report of physical abuse, her response was, "I don't know."
2SRR.90. When asked if she kept up with the report she filed, or if she called the
county attorney's office to follow up, she responded, "I didn't know to call the
county attorney." 2SRR.91. The evidence of any physical abuse against Rita at the
hands of Mark Blair is both legally and factually insufficient and should not have
been given weight as to the fault in the breakup of the marriage.
C. Appellee's Accusations of Appellant's Adultery
18
Appellee claims Appellant committed adultery and claimed to have
"accidentally bumped the computer," and pornographic web sites immediately
appeared. 2SRR.33. Common sense would leada prudent person to acknowledge
that looking at pornographic websites does not an adulterer make. Rita next claimed
to have "pictures and text messages" of Mark's attempts to hook up with random
women from random pornographic websites. 2SRR.33. Rita's counsel sought to
admit documents that allegedly came from Mark's computer. After objection as to
no connection whatsoever of these documents to Mark, the documents were ruled
inadmissible. 2SRR.34-S. No text messages were ever proffered.
The evidence of any adultery committed by Mark is both legally and
factually insufficient and should not have been given weight as to the fault in the
breakup of the marriage.
19
PRAYER
The Court should reverse the trial court's award of the marital estate and
remand the said estate for the award of a new division.
Respectfully submitted,
lAW OFFICE OF REBECCA DAVIS, P.LLC.
1200 South Main Street, Suite 228
Weatherford, Texas 76086
TELEPHONE: 817.341.4500
TELECOPIER: 817.594.8100
rebecca@rdavislaw.com
/s/ Rebecca Davis
SBOT No. 24048422
20
CERTIFICATE OF COMPLIANCE
Microsoft Word reports that this brief contains 4,750 words excluding the portions
of the brief exempted by Rule 9.4(a)(1).
/s/ Rebecca Davsi
CERTIFICATE OF SERVICE
On March 11, 2021, this document was served electronically on J ana Johnson,
counsel for Appellee, via electronic mail messaging
(jlolaw@johnsonlawoffices.org) and via Texas efiling.
21
APPENDIX
1
Court's Ruling
February 7, 2019
1 REPORTER'S RECORD
2ND SUPPLEMENT VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. CV-01870
APPELLATE CAUSE NO. 08-19-00304-CV
3
IN THE MATTER OF ) No. 08-19-00304-CV
4 THE MARRIAGE OF )
) Appeal from the
5 )
) 112th District Court
6 )
RITA GAIL BLAIR )of Reagan County, Texas
7 AND )
MARK ALAN BLAIR ) (TC# CV01870)
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9
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11 COURT'S RULING
12
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14 On the 7th day of February, 2019, the following
15 proceedings came on to be held in the above-titled and
16 numbered cause before the Honorable Pedro Gomez, Jr.,
17 Judge Presiding, held in Big Lake, Reagan County, Texas.
18 Proceedings reported by computerized stenotype
19 machine.
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25 O-R-I-G-I-N-A-L
2
Court's Ruling
February 7, 2019
1 APPEARANCES
2 Mr. J.W. Johnson (not present)
SBOT NO. 10757600
3 The Johnson Law Offices
125 S. Irving Street
4 San Angelo, Texas 76903
Telephone: 325-659-2542
5 Counsel for Petitioner
6 Ms. Rebecca Davis (not present)
SBOT NO. 24048422
7 Law Office of Rebecca Davis, PLLC
111 W. Akard St
8 Weatherford, Texas 76086-5302
Telephone: 817-341-4500
9 Counsel for Respondent
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Court's Ruling
February 7, 2019
1
2 VOLUME 1
3 Court's Ruling
4 February 7, 2019
PAGE VOL
5 Court's Ruling 4 1
Reporter's Certificate 10 1
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Court's Ruling
February 7, 2019
12:54:54 1 THE COURT: Okay. This is 1870, in the
12:54:56 2 matter of the marriage of Rita Gail Blair and Mark Alan
12:54:59 3 Blair.
12:55:01 4 I'm in the courtroom in Big Lake, Texas;
12:55:03 5 and I'm going to render my decision on the Blair matter.
12:55:09 6 Both sides have rested and closed. Both sides were
12:55:13 7 given an opportunity to make closing statements.
12:55:23 8 I find that I have jurisdiction over the
12:55:24 9 parties and of the action. I find that there were no
12:55:27 10 children born to the marriage. None were adopted or are
12:55:32 11 expected.
12:55:33 12 I find that the -- that the following
12:55:35 13 division of the estate is a fair and equitable one
12:55:39 14 concerning the parties, and what I am going to do for
12:55:45 15 the attorneys so that they can follow along in preparing
12:55:50 16 the decree -- I am actually using both inventories that
12:55:57 17 were provided by the parties. However, I'm actually
12:56:01 18 going to be making reference mostly out of the Mark Alan
12:56:05 19 Blair inventory and appraisement since that's the one
12:56:10 20 that I was working off of; but I did actually use both
12:56:14 21 of them to make sure that I included all of the
12:56:18 22 property.
12:56:22 23 So, I'm going to go down each -- each page
12:56:27 24 starting wi th the first page, No.1, the -- the property
12:56:32 25 at 300 North Main; Springtown, Texas, I am going to
5
Court's Ruling
February 7, 2019
12:56:36 1 award that to the petitioner with any debt related to
12:56:41 2 same and -- and all contents contained in in that
12:56:46 3 property. In -- I am also going to award to her the
12:56:56 4 $9915.89 that are currently in the registry of the
12:57:06 5 Court. I am awarding the -- the property on 300 North
12:57:11 6 Main Street -- and I've taken into consideration and --
12:57:16 7 and -- and making a contribution to her for her portion
12:57:22 8 of the community contribution to his separate property
12:57:26 9 on the Carter Road property that -- that I'm later going
12:57:33 10 to find is -- is his separate property. The 99 -- the
12:57:43 11 9915.89 I am awarding to her in consideration for
12:57:47 12 Mr. Blair expending part of the coin collection during
12:57:56 13 the pendency of this lawsuit.
12:58:35 14 Going on to page No. 2 -- No. 2 at the
12:58:40 15 top -- the -- the $3,090.18 that is in the First
13:00:33 16 Financial Bank savings account, I'm going to award half
13:00:38 17 to each. Going to No.3, the $1750.45 that is in the
13:00:44 18 First Financial Wow checking account, I am going to
13:00:48 19 award half to each. Going to No.8, the 1970 Chevy
13:00:54 20 Corvette, I'm going to award to her as her separate
13:01:00 21 property wi th any -- any debt related to same.
13:01:06 22 I am -- going to page 3, No.2, I will
13:01:13 23 award to him the 2003 Pace Trailer with any debt related
13:01:20 24 to same. No.4, I'm going to award to him as -- as his
13:01 :33 25 separate property. I'm also going to award to him the
6
Court's Ruling
February 7, 2019
13:01:39 1 2010 Ford Raptor with any debt related to same.
13:01 :45 2 Going to page 4, I am going to award
13:01:50 3 No.6, the 2003 Big Sky 36 foot, 3670RV to her with any
13:01:58 4 debt related to same. I am going to award the 1992
13:02:03 5 PJ Trailer to him with any debt related to same. She is
13:02:13 6 awarded the 1996 Dodge I ton -- 1-ton Dually with any
13:02:20 7 debt related to same, and that -- that is actually her
13:02:24 8 separate property, and I so find. I will award to him
13:02:30 9 the 2000 Jeep Wrangler that is on page 5, No.9.
13:02:39 10 Going to No. 10, Household Furniture,
13:02:41 11 Furnishings, and Fixtures -- all of the items listed in
13:03:31 12 number -- No.1, I will award to him as his separate
13:03:37 13 property. The number -- on No.2, page 6 going into
13:03:42 14 No. 7 -- everything in No. 2 I will award to her as her
13:03:50 15 separate property. The electronics and computers in the
13:03:53 16 No.1, I will award to him. The No. 2 I will award to
13:04:00 17 her.
13:04:02 18 Going into page 8, the No. 1 -- the
13:04:13 19 miscellaneous declarations and art/paintings, I am going
13:04:20 20 to award half and half to each. The No. 2 I am going to
13:04:41 21 award to her. Going to 13 on page 8, No.1, knife
13:04:53 22 collection I am going to award to him. The S-a-i-g-a,
13:04:57 23 Saiga 12 Laser I am going to award to her, the two Ammo
13:05:04 24 drums to him. The 30.06 Bull barrel I will award to
13:05:11 25 her. The Smith & Wesson 12 gauge I will award to him.
7
Court's Ruling
February 7, 2019
13:05:16 1 The Smith & Wesson 19 -- 12 gauge I will award to him.
13:05:22 2 The 45 Witness I will award to her. The Schrade,
13:05:25 3 S-c-h-r-a-d-e, Waldon collection of knives, I will award
13:05:35 4 to him. The Ruger M77 Mark II and the 22-250 to her as
13:05:44 5 her separate property. I'm going to award to her the
13:05:47 6 GLOCK1 7 with laser. Also, I will award to her the --
13:05:54 7 the. 22 Savage rifle.
13:05:58 8 I was not clear as to who the two acoustic
13:06:02 9 gui tars -- whose separate properties those -- those were
13:06:06 10 gifted to one of the parties. Whoever that -- the two
13:06:09 11 acoustic guitars were gifted to, I award to that person
13:06:15 12 as their separate property. I am going to award to her
13:07:04 13 all of the property that is in the shed at 2531 Carter.
13:07:10 14 Going to page 9, No. 14, in No.2 -- I'm
13:07:18 15 going to award everything in No. 2 to her. I'm going to
13:07:24 16 award one-half of each -- to each party the tools that
13:07:29 17 are located on at the Springtown home. Moving to
13:07:35 18 page 10, 15 (1) I will award to him.
13:07:45 19 Going to No. 11, No. 19 (A) (1), if that is
13:08:01 20 the amount still owing on the property awarded on
13:08:05 21 Main Street, I am going to order that -- that she
13:08:10 22 continue making those payments. He is ordered to pay
13:08:15 23 the No. 19 (A) (2). He is ordered to pay 19 (A) (3). As to
13:08:25 24 the Federal, State, and Local tax liability, I'm
13:08:28 25 ordering that each party pay 19 (B) (1), one-half each
8
Court's Ruling
February 7, 2019
13:08:40 1 with however limited authority I have in doing that.
13:08:46 2 I find I make a finding that the
13:08:55 3 property at 2525 Carter Road is, in fact, community
13:09:00 4 property. The -- the property -- the real property will
13:09:09 5 continue being jointly owned by each party, and I
13:09:13 6 believe that most of the contents I've made a ruling on.
13:09:27 7 I will also order that if the parties can agree on a
13:09:31 8 mutual fair market value, that one party can buyout the
13:09:38 9 other. If not, whatever the fair market value that they
13:09:43 10 agree to, the other -- judgment will -- will -- I will
13:09:52 11 render a judgment in that amount in favor of the wife
13:10:00 12 with a judgment in that amount at 6 percent interest to
13:10:05 13 be paid at $1500 per month until paid. I am going to
13:10:27 14 order on page 13 that the wife pay the the 23 (1),
13:10:38 15 23 (2), 23 (3), and (4).
13:11:05 16 I am ordering that -- that the court
13:11:09 17 reporter transcribe my rulings and provide to both
13:11:12 18 parties. I am going to order that -- that Ms. Davis
13:11:21 19 prepare the decree, and I hereby grant the divorce.
13:11:49 20 We're adjourned on this matter.
13:12:18 21 (Recess taken)
13:13:26 22 THE COURT: The Court is back on the
13:13:29 23 record.
13:13:29 24 I am going to order that both parties pay
13:13:35 25 for the transcription of this -- of this record -- of
9
Court's Ruling
February 7, 2019
13:13:39 1 this ruling to my court reporter.
13:13:45 2 We're adjourned on this matter.
3 (Proceeding concluded)
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Court's Ruling
February 7, 2019
1 STATE OF TEXAS
2 COUNTY OF REAGAN
3 I, Corina E. Lozano, Official Court Reporter in and
4 for the l12th District Court of Reagan County, State of
5 Texas, do hereby certify that the above and foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested in
8 writing by counsel for the parties to be included in
9 this volume of the Reporter's Record in the above-styled
10 and numbered causes, all of which occurred in open court
11 or in chambers and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits,
14 if any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $ 150.00
17 and was paid by Ms. Rebecca Davis.
18 WITNESS my hand this the 1st day of March, 2021.
19
/s/CoriJ1a E. ~ZaJ10
20
Corina E. Lozano, CSR, RPR
21 Texas CSR 8861
Expiration: 02/28/2023
22 Official Court Reporter
112th Judicial District Court
23 One East Main Street
Bellville, Texas 77418
24 Telephone: 409-771-2562
25
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Rebecca Davis
Bar No. 24048422
rebecca@rdavislaw.com
Envelope ID: 51400135
Status as of 3/11/2021 3:29 PM MST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Jana Johnson 24076464 jlo@johnsonlawoffices.org 3/11/2021 3:16:57 PM SENT
Associated Case Party: MarkR.Blair
Name BarNumber Email TimestampSubmitted Status
Rebecca Davis rebecca@rdavislaw.com 3/11/2021 3:16:57 PM SENT
Sarah Montgomery sarah@rdavislaw.com 3/11/2021 3:16:57 PM SENT