James Allen Pelloat v. Katherine McKay Bolenbaucher

OW-OOHIS-CV
CASE NO. F-02252B9
DEC 1 1 2017
CAROLANNE HAHLEY
CLERKOFTHECOURT
NINTH COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE
THIRTEENTH DISTRICT OF TEXAS
iAMES ALLEN PELLOAT, APPELLANT PRO-SE
U .
KATHERINE McKAY BQLLENBAUCHER, APPELLEE
ON APPEAL FROM THE 279th JUDICIAL DISTRICT
COURT OF 3EFFER5QN COUNTY, TEXAS
APPELLANT'S BRIEF
3ames Allen Pelloat
TDCJ # 1289716
C.T.TERRELL UNIT
1300 FM 655
Rosharon, Tbx .77583
IDENTITY OF PARTIES AND COUNSEL
1) James Allen Pelloat
T.D.C.3. # 1289716
C.T.Terrell Unit
1300 FM 655
Rosharan, Texas 77583
Appellant Pro-Se
2) Katherine McKay Bollenbaucher
2485 Highway 96 S.
Lumberton, Texas 77657
Appellee
3) Packard LaPray
124B Orleans
Beaumont, Texas 77701
Attorney For Appellee
(2)
TABLE OF CONTENTS
Cover 1
Identity of Parties 2
Table of Contents 3
Index of Authorities 4-H
Statement of Facts and Procedural History 9—11
Summary of Arguments 1.2— 13
Issues Presented 1 4--- '23
Paints of Errors With Arguments 24 --:43
Requested Relief Mk—
Prayer 45
Certificate of Service 46
Declaration 45
3)
INDEX OF AUTHORITIES
CASE LAW PAGE
Amelia's Inc. v. Rodriguez, 921 S.U.2d 767 31
Alsenz v. Alsenz, 101 S.W.3d 648 28
Am. Gen.Fire& Cas. Co. v. Shatman, 761 S.W.2d 582 38
Austin v. Shaminie, 94B S.W.2d 927 31
Bahr v. Kahr, 980 S.W.2d 727 • 29
Barnett v. Barnett, 67 S.ld.3d 104 (tx.2001) 28
Berry v. Berry, 647 S.U.2d 945 (tx.2001) 30
Board of Trus.of Bastrop I.5.D. v. Tougate, 959 S.W.2d 365(tx.1 997)... 32
Bohn v. Bohn, 455 5.W.2d 404 29
Brouseau v. Ranzou, 25 5.W.3d 285 32
Browning v. Prostok, 163 S.W.3d 336 (tx.2005) 42
Burchfield v. Finch, 918 S.W.2d 422 34
Calduell v. Barnes, 975 S.U.2d 535 (tx.1990) 33
Caldwell II, 154 S.W.3d @ 197 (tx.2004) 32
Camp v. Camp, 972 S.W.Zd 906 29
Campbell v. Campbell, 5B7 S.W.Zd 513 29
Carson v. Gomez, 14 S.W.3d 77B 27
Cash v. Beau. Dealers Auto Auct. Inc., 275 S.W.3d 91B 43
CCGECPW u R of M v. Arriba Ltd., B82 5.W.2d 576 32
Cho v. Hong, 249 S.W.3d 441 31
Golden v. Alexander, 171 S.U.2d 32B (tx.1943) 28
D B v. K B, 176 S.U.3d 343 28
Dean v. Kirk, 508 S.W.2d 70 (tx.1974) 41
Decker v. Decker, 192 S.W.3d 648 29
Ehsrle v. Adams, 73 S.W.3d 322 28
Eggemeyer v. Eggemeyer, 554 S.W.2d 149 (tx.1977) 29
(4)
INDEX OF AUTHORITIES
PAGE
CASE Lflhl
2 5
Fruong v. City of Houston, 99 S.U.3d 2Q4
Finn v. Finn, 658 S.W.2d 735 25
Fisher-Stoker v. Stoker, 174 S.W.3d 272 30
Flores v. Flores, 116 S.W.3d B70 25
Foley v. Parlier, 68 5.bl.3d B70 31
33
Freeman v. State, 96 S.Li.3d 827
34
Gainous v. Gainous, 219 S.W.3d 97
Gorman v. Life Ins., 859 S.lii.2d 3B9 31
Handley v. Handley, 122 S.lil.3d 904 31
Henry S. Miller v. Evans, 459 S.III.2d 426 (tx.1970) 28
In Re Dynamic Health, Inc., 32 S.ti).3d B76 25
In Re E R, 385 S.L).3d 552 (tx.2D12) k2
In Re Husain, 168 B.R. 591 7
In Re K.R., 32 S.W.3d 85
In Re Marriage of Ham, 59 S.U.3d 326
In Re Marriage of Notash, 110 S.W.3d 86B ^
In Re North Am. Refrac. Div. Cd ., B3 5.L).3d 97
Jones v. Jones, 154 S.W.3d 229 35
Langdale v. Villimil, 813 5.L!.2d 443 32
Laurence v. Laurence, 911 S.W.2d 463 h0
LBL Oil Co. v. International Pouer Serv., 777 S.kl.2d 390
39
Limbaugh v. Limbaugh, 91 S.Id. 3d 1
Lofflano Brae. Co. v. Downey, 822 5.LI.2d 249 32
Lopez v. Lopez, 754 S.W.2d 921 (tx.198B) 32
Lome v. Gulf States Utilities Co., 75 S.U.3d 449 2B
Mabon, Ltd., 369 S.lil.3d 312 (tx.2012) 32
(5)
INDEX OF AUTHORITIES
PAGE
CASE LAW
Matter of Marriage of Devine, B69 S.U.2d 45 2B
Middleton v. Murff, 6B9 S.W.2d 212 (tx.1985) ^2
Moore v. Moore, 840 S.W.2d 821 2B
Mowbray v. Avery, 76 S.W.3d 663 39
Nichols v. Jack Ekerd Corp., 908 S.UJ.2d 5 . . ^
Pinkston v. Pinkston, 266 S.W.2d 575 3S
PSU-Exts. Elec. v. TreJD, 166 S.Ll.3d B89 33
Reiss v. Reiss, 11B S.W.3d 439 (tx.2D03) 3<*
Roach v. Roach, 672 S.W.2d 524 3D
Roberts v. Roberts, 999 S.U.2d 424 29
Rusk v. Rusk, 5 S.UI. 299 M
Schindler Elevator Corp. v. Anderson, 7B S.U.3d 309 32
Schuleter v. Schuleter, 929 S.kJ.2d 96 31
Scott v. Scott, 805 S.U.2d BBS 29
Shanks v. Treaduay, 110 5.W.3d 44 (tx.2003) 3^
Shindler v. Anderson, 9B5 S.W.2d 342 28
Smith v. Smith, B36 S.W.2d 422 3Q
Smith v. Smith, 225 S.W.3d 140 2G
Soloman, Lambert, Roth & Assoc, v. Kidd, 904 S.W.2d 897 32
State v. 1985 Chev. Pick-up Truck, 77B 5.U.2d 463 33
Strauder v. Thomas, 846 S.Li.2d 61 33
Taggart v. Taggart, 552 S.U.2d 423 (tx.1977) 34
Toles v. Tales, 45 S.LL3d 253 31
Turner v. Montgomery, 831 5.til.2d B48 25
Union City Bady Inc. v. Ramirez, 911 S.W.2d 196 32
Ualling v. Metcalfe, B63 S.W.2d 298 (tx.1993) ^2
Walton v. Walton, 864 S.W.2d 652 29
Welder v. Welder, 794 S.U.2d 420 29
(ro
INDEX OF AUTHORITIES
PAGE
CASE LAW
West Tex. State Bank v. General Res. Mamt.,757 S.W.2d 304 32
Will. v. Donnelly, 113 S.W.3d 10 25
Will. v. Lavender, 797 S.W.2d 410 31
Winkle v. Winkle, 931 S.W.2d 420 • 2g
Little v. U.S. Fidelity & Guaranty, 217 Miss. 576, 64 So. 2d 697 . . 30
FEDERAL CASE LAWS
Compo Computar Corp. v. Pracon Tech, Inc., 98B F.Supp. 1409 . . . . 25
Eventes v. Sacoin, 407 U.S.67, B092 5. Ct. 1983 33
2B
Haslip, 449 U.S. 1, @ 21
27
Lemon v. Skidmore, 985 F.2d 354
Matter of Parrish, 7 F.3d 76 (Tex.) 2B
Ray v. Lueben, 812 F.2d 179 26
CONSTITUTION CITATIONS
U.S. Const. Amend. 5 27
U.S. Const. Amend. 6 27
U.S. Canst. Amend. 14 27
Tex. Const. Art. 1 § 9 27
2^
Tex. Canst. Art. 16 § 15
STATUTES
Civ. Prac.Sc Rem. Codes, Art.§ B.219 32
Civ. Prac.S Rem. Codes, Art.§ 16.051 19
7)
INDEX DF AUTHORITIES
CASE LAW PAGE
Civ. Prac.S: Rem. Codes, Art. 162 § 2 32
Tex. Rules Of Civ. Proc, Rule 21 32
Tex. Rules af Civ. Proc, Rule 21a 32
Tex. Rules of Civ. Proc, Rule 124 41
Tex. Rules Df Civ. Proc., Rule 3D5 42
Tex. Rules af Civ. Prac, Rule 306 21
Tex. Rules of Civ. Prac., Rule 316 15
Tex. Family Code, § 3.001 (1) 17
Tex. Family Code, § 3.002 32
Tex. Family Code, § 6.703 31
Tex. Family Code, § 7.001 34
Tex. Family Code, § 9.0029 32
Tex. Family Code, § 9.DOB 34
Tex. Gov't Code, § 24.016 24
Tex. Rules of App. Proc, Rule 33.1 (a) 21
Tex. Rules of Evidence, Rule 503 21
Tex. Penal Code, § 32.10 37
Tex. Penal Code, § 32.46 37
(8)
STATEMENT OF THE CASE
PROCEDURAL HISTORY
JUNE 25,2009 : Appellant received Citation of Divorce by Certified Mail
and not a Constable as required per Judge Shelton's Order (Phone
Hearing MAY 12,2016)..;
JULY 1,2009 : An Ex Parte Hearing was held in the 279th District Court,
Exhibits and Testimony was given without Appellant present (see:
Transcript JULY 1,2009 on file). Thereat Judge Shelton GRANTED
Appellee, Katherine McKay, 100% complete control and custody of ALL
marital assets and funds, including Appellants' Texas Teachers'
Retirement Annuity, rendering Appellant Indigent and Desolate..;
AUGUST 26,2009 : Appellant Filed MOTIDN FOR DISCOVERY..;
OCTOBER 5,2009 : In a Phone Hearing Appellant again spoke his REQUEST
FOR DISCOVERY which was Ignored by Judge Shelton (see: Transcript
October 5,2009) ..;
NOVEMBER 9,2009 : Appellant again Filed a MOTION FDR DISCOVERY. All went
unanswered by Attorney for Appellee, Troy D. Soileau and Judge Shelton.;
AUGUST 23-26,2010 : Jury Trial for Divorce uas held in the 279th District
Court. Transcript currently unavailable due to extreme cost and the
unavailability of the Court Reporter..;
APRIL 25 2D11 : Final Decree of Divorce signed by Judge Shelton ignoring
OBJECTIONS filed MARCH 8 & 10, 2011..;
JULY 11,2011, AUGUST 16,2011,and AUGUST 17,2011 : Attorney Troy Soileau
Filed NUNC PRO TUNCs with Judge Shelton without notifying Appellant
of Judgments to be presented and signed and without attaching a
Certificate of Service to each document as required by the Texas Rules
of Civil Pracedurs..;
AUGUST 24,2011 : Appellant received All Three NUNC PRO TUNCs from Attorney
Troy Soileau with a letter dated AUGUST 17,2011 stating," this is what
I have done since the Signing of the Final Decree of Divorce on
APRIL 25,2011..;
(9)
HAY 15 Z015 :Appelant sent letter to Att. Melody Petit* concerning
QDRO end her use of SPECIAL INSTRUCTION 1,claiming the valuation
date to extend number of years married from May 20D0, the date of
Retirement, until August 20!0, the date of Divorce, noting valuation
date had to do with the Death of one party and neither Appellee nor
Appellant had Died..;
3UNE 20 2015 :Att. Melody Petitt Filed an AMENDED MOTION to sign QDRO,
dropping Special Instruction 1and adding Special Instruction 6, claiming
to make the QDRO fit the Teachers' Retirement Guidelines..;
SEPTEMBER 22,2015 :Appellant Filed AMENDED BILL OF REVIEW MOTION..;
MAY 12,2016 :BILL OF REVIEW MOTION uas Denied by Dudge Shelton stating
Appellee had not been properly served..;
AUCUST U.2016 :3udBe Shelton signed Appellee's MOTION TO SIGN QDRO as
Amended OVER protests made by Appellant (see: Transcript August 1^,2016),
n nQnan+iq RTM
AUGUST 3,2017 : Hearing on Appellant's biLL OF
ur REVIEW held and Denied by
Judge Shelton ;Moreso, the Hearing was limited to Only 30 minutes
by Judge Shelton which caused MANY objections to be omitted....
(11
Attorney far Appellee did File and Caused to be signed a NUNC
PRO TUNC Final Decree of Divorce, a First Amended NUNC PRO TUNC Final
Decree of Divorce, and a Second Amended NUNC PRO TUNC Final Decree of
Divorce WITHOUT notifying Appellant on any Judgments tD be submitted and
signed, violating ALL Tex. Rules of Civil Prac.rules concerning Proper
Service ar a Certificate of Service, violating the Due Process and
Fundamental Clauses of the United States and Texas' Constitutions..
Lack of Notice VOIDS any Judgments( Rule 124, Tx.R.Civ.Proc.,-No Service
No Judgment)..
Since Att. Troy Soileau filed the whole Decree each time with the
NUNC PRO TUNCs instead of only the "Clerical Issues" to be corrected, each
Judgment in its' Entirety is VOID..
Appellant is suffering under a wrongfully acquired Judgment which
satisfies EQUITY for the BILL OF REVIEW, and Appellant should be GRANTED
the Relief requested herein...
(13)
ISSUES DEFINED
ABUSE OF DISCRETION
JUDGE SHELTON ABUSED HIS DISCRETION WHEN HE:
(1) held an Ex Parte Hearing on July 1,2009 without Appellant or
Attorney present, even by Phone,;
(2) ignored and failed to consider a Request from Appellant far
DISCOVER on October 5,2009, having already ignored a previous
Request For Discovery on August 9,2009,;
(3) Denied Appointment of Counsel for Indigent Appellant, who was made
Indigent on July 1 ,2009 at the Ex Parte Hearing by Judge Shelton
Granting SOLE and EXCLUSIVE control of Appellant's Teachers'
Retirement Annuity to Appellee, Katherine McKay, do October 5,2009,
January 5,2010, and August 24,2010,;
(4) farced Appellant, over his OBJECTIONS, into wearing identifiable
prison/jail attire and Leg Shackles during the entire Trial for
Divorce, even when Appellant made it known to the Court that Free
World Clothes were available at the County Jail,;
(5) failed to follow correct and proper procedures to ensure a Fair and
Impartial Trial or ta Hold a Hearing to determine whether ar not
Appellant was a Extreme Risk ta the Court, Jury and/ar Spectators
that would require Appellant to be dress in prison/jail clothes
and shackled, or to Admonish the Jury as to why Appellant was so
dressed, and was to be Tried far his Guilt or Innocence an a TORT
Claim and had his Freedom even more threatened by Attorney for
Appellee when Attorney stated in Court that the District Attorneys
from Jefferson and Newton Counties would be present to decide after
hearing Testimony whether ar not additional Charges on Appellant
would be Filed,;
(14)
(6) allowed the Jury to Award Damages af $10,000 and Exemplary Damages
af S750,000 and $250,000 when No Actual damages were Proven and
were clearly Excessive,;
(7) allowed the Home at 212 south 15th Street, Nederland, Texas, to
be put to the Jury to decide who the House belonged to..,knowing
that the House was Deeded to Appellant and Appellant Only at his
Mothers* death on October 3,2003, and the Warranty Deed had and/or
showed No Intention of granting Appellee the House as a Gift or Na
Separate Property Recital giving to her as her Separated Property.
The issue was again brought to the Courts' attention in ALL APPEALS
and at the Hearing on Appellants' BILL OF REVIEW held August 3,2017.
Inherited Property is Separate Property per se,;
(B) awarded 75% of the Community Property to Appellee which was more
than \ of the Community Estate, and by Law must be Justified by the
Judge which has yet to be done. That makes the Fault of the Appellant
Conduct the only issue Recorded requiring the ordering of 75% of
the Community Property and Tort Damages totalling $1,010,000.00,
constituting a Forbidden Double Recovery,;
(9) at the Trial for Divorce, stopped the Trial and called ONLY Appellees
Attorney, Troy Soileau, into his Chambers for a One-on-One Ex
Parte Conversation, which was an Illegal Ex Parte Conversation
and Strongly hinted af Civil Conspiracy between the Two,;
(10) signed the NUNC PRO TUNCs dated July 11,2011, August 16,2011, and
August 17,2011, uithout requiring a Certificate of Service or a
Sworn Letter citing compliance with the Rules of Service pursuant
to Rule 21a, Tx.R.Civ.Proc, and such were Signed in the privacy
of Judges' Chambers instead of in Open Court as is required
pursuant to Rule 316, Tx.R.Civ.Proc.,;
(11) set Phone Hearing for November 5,2009, November 28,2011,
April 20,2012, and July 20,2016 without sending Appellant ANY NOTICE
as to the date of the Hearings and what was to be discussed at
those Hearings. .
(15)
Such failings amounts to Extrinsic Fraud, Deprivation of Due
Process and Fundamental Fairness, and Denying Appellant his RIGHT
to Fully Defend his case, and Illegally initiating Ex Parte
Conversations by informing Appellees' Attorneys of the dates and
what was to be decided ahead of time.
(12) got angry when Appellant questioned about the numbers of years
going onto the QDRO, and threatened to remove Appellant from the
August 14,2015 Hearing (see; Phone Transcripts). Appellant was
attempting to get clarification on the number of years of Marriage
that would be used. According to the Taggart formula set by the
Supreme Court of Texas, as while Married under the Retirement
plan, but on the QDRO it stated the number of years Married moving
the date of Retirement Benefits from May 2000, tD the date of
Divorce- August 2010, or an extra 10 years and 3 months of Benefits
to Appellee. Judge Shelton cut the Hearing short without allowing
Appellant to Cite all of his issues, i.e. Special Instruction 6,
and Arbitrarily signed the QDRD over the Appellants' OBJECTIONS
and without giving clear number of years going onto the QDRO,;
(13) asked Ms. Petitt, Appellees* second Attorney, after the Hearing
ended and Appellant got off the Phone, » Melody, would you send
him a copy of what was done Today?" (see: Transcript August 14,2015
p.26). According to the Tex .R.CIV.PROC., Rule 306(3), it is the
Clerk of the Court's Responsibility to IMMEDIATELLY NOTIFY EACH
CONCERNED PARTY that a Judgment was Signed and NOT the Opposing
Attorney's Responsibility. This was a Factual Ex Parte Conversation
and a showing of Bias and Favoritism,;
(16)
(";4) at the Hearing scheduled May 12,2001, originally scheduled
for 1:30 pm but not held until 3:30 pm, asked if Appellant had
properly Served Appellee with the Citation of the BILL OF REVIEW
by Constable, and Appellant said,"No, the Lawyer had been Served".
The Judge responded," well, no one is here", leaving the impression
with Appellant that Appellee's Attorney and/or Appellee were either
told not ta show up ahead of time or that or at the scheduled
1:30 pm Hearing by the Judge or one of the Courts' Staff who had
been told what to tell them. This advice amounted to an ILLEGAL
Ex Parte Conversation between Judge SheltDn and Appellee which was
not only an Abuse of Discretion but also Judicial Misconduct and
Civil Conspiracy,(see: Transcript May 12,2016 included as Exh.),;
(15) ignored a MOTION FOR AW INJUNCTION to stop Appelle from selling
the House at 212 south 15th.Street, Nederland, Texas, Filed on/about
July 6,2017...,and then Defying The Supreme Court of Texas by
Denying Appellants' Claim that the House was Inherited when
Appellants' Mother passed away on October 2003 and was Appellants'
Separate Property by Inception of Title. The Supreme Court has
Ruled on many occasions that Separate or Community Property is
Decided at the time of Inception of Title and DOES NDT change
throughout any number of Transformation,;
(16) denied Appellants' Exhibit concerning the Number of Years to be
put in the Record determining the Community Property Interest in
Appellants' Teachers' Retirement System Annuity. Judge Shelton
allowed Appellee Piece of Evidence showing the Marriage lasted
23.25 Years, confusing the number Df years spelled out in
Taggart, but when Appellant admitted his Evidence giving the
correct Years that could apply under Taggart it usas Denied by
Judge as Confusing to the Jury,;
(17) on August 3,2011, held a Hearing that was Filed with the Court
Clerk as a " ORDER SETTING TRIAL "; however, Judge's letter to
Appellant stated the Hearing was concerning a BILL OF REVIEW,
limiting the Time to only 30 minutes. It was an Official Mistake
(17)
as well as an Abuse of Discretion to change the Order For Trial
Betting to a Hearing, especially limiting the Time to just
30 minutes considering the Time Span covered in the BILL OF
REVIEW which is dated from June 19,2009 up to the present day,;
(18) after more than enough Evidence, but not all of it, was supplied
which clearly supported a Primie Facie Case, instead of ;.
automatically Setting a Trial Date as required, the Judge
arbitrairly and without regards to existing Laws as is required
by the Tex.R.Civ.Proc., Denied Appellants' MDTION, which such
Action was not only an Abuse of Discretion but also Violated
Appellants' Due Process and Fundamental Fairness Clauses of the
United States and Texas' Constitutions..
(1B)
ISSUE TWO
EXTRINSIC FRAUD
FOUND IN TEX.CIV.PRAC.& REM.CODE, art. § 16.051
Extrinsic Fraud such as may provide bask setting aside a Judgment..,
is Fraud which Denies a Party the opportunity ta Fully Litigate upon Trial ALL
Rights of Defense the Party is entitled to assert..
(1) Denial or Ignoring of Appellants' Legally Filed Motion Far Discovery on
August 2009, October 2009, and November 2009 were not only Extrinsic
Fraud, because Judge denied the Full Facts of the Case to Appellant, but
deprived Appellant of Due Process and Fundamental Fairness..Moreso, the
blatant refusal of Att.Troy Soileau to divulge the Facts Of The Case to
be discussed at Trial amounted to Attorney coming into Court with unclean
hands which Tainted all Court Proceeding after the year 2009,;
(2) There was No Form of Service or Certification of Service in the NUNC
PRO TUNC Final Decree of Divorce, neither in the First Amended NUNC PRO
TUNC Final Decree of Divorce nor in the Second Amended NUNC PRO TUNC
Final Decree of Divorce. All 3 NUNC PRO TUNCs are examples of Extrinsic
Fraud and since certain items were removed from the Final Decree of
Divorce, the NUNC PRO TUNCs did not merely deal with the addition or
changing of Appelles' Name, but some type of Ex Parte Conversation was
held between Judge Shelton and Att.Troy Soileau.Appellees' Lawyer,
(see: Copies of All NUNC PRO TUNCs on File with Court),;
(3) The lack of meaningful Notice to the Hearings of November 3,2009,
November 28,2012, April 20,2014, and July 20,2017 was Extrinsic Fraud.
Appellant was NOT given advance notices by Judge Shelton that a Phone
Hearing had been Set nor was Appellant informed as to what all would
be discussed, leading Appellant totally unprepared at the Hearings,
depriving Appellant of Due Process, and being unable to Defend himself
against opponent who were properly notified, (see: Transcript, lack
of Notice stated in Phone Hearings of April 20,2012 and July 2017),;
(19)
(4) It was an Official Mistake and Extrinsic Fraud when the Clerk
of the 279th District Court DID NOT immediately Notify ALL PARTIES
that a Judgment had been Signed pursuant to Rule 306(3) of the
Tex.R.Civ.Proc. . On April 25,2011, Final Decree of Divorce was
Signed without Notifying Appellant of such and then rendering
Appellant Time-Barred from Appealing such on May 25,2011..
On July 11,2011 a NUNC PRO TUNC was signed without Notifying
Appellant of such and then rendering Appellant Time-Barred
from Appealing such on August 11,2011.. Then again, on August 16,2011
the First NUNC PRO TUNC(Amended), and on August 17,2011 the
5ecind Amended NUNC PRO TUNC, were signed without ANY
notification to Appellant of such and then rendering Appellant
Time-Barred from Appealing such. On September 5,2011 Appellant
Filed his First Request For a New Trial. No Where in the Record
does this Notification from the Clerk of the Court appear..
(20)
(2) signed ALL 3 NUNC PRO TUNCs' Final Decree of Divorce without
requiring a Certificate of Service that ALL PARTIES had been
served with a True Copy before the Judgment was signed,;
(3) misquoted the TAGGART v. TAGGART doctrine when Judge Shelton
stated in the Charge to the Jury that it was the total months
the Employee and Spouse were Married ( leaving out under the
Retirement Plan ), and then letting the same be stated in the
formula for the QDRO
ISSUE FOUR
VOIDABLE JUDGMENT
Appellant contends that pursuant to the TEX .R.CIV .PROC .,
the TEX.CIV.PRAC.& REM.CODE,and STATUTORY AUTHORITIES cited herein, the
Final Decree of Divorce and its' subsequent NUNC PRO TUNCs are VOID as
a matter of LAW due to Non-Compliance of Statute.
Such Judgments were Signed in the absence of Appellant and
without Notifying Appellant of their signore as required hy Statute.
Thus, Appellant states that the Judgments of the Final Decree of Divorce,
and subsequent NUNC PRO TUNCs, are in fact Void..
(22)
ISSUE FIVE
DUE PROCESS VIOLATION
The Due Process Clause of the 14th Amendment to the United States Constitution
is designed to Protect against Arbitrary goverment actions. The Amendment
prohibits ANY Government entity from depriving any Citizen of Life, Liberty,
or Property without Due Process of Law. Due Process protections require that
no Citizen of the United States, whether a Felon or not, he subjected to
ANY Arbitrary deprivations of...property despite Judicial Official's
interest in Discretion and flexibility..
Appellant contends herein that the Judicial Officials of the Trial
Court had REPEATEDLY, throughout this entire Divorce proceedings, exhibited
a strong Antagonism and Arbitrary Bias towards Appellant that did not make
for a Fair Judgments nor Trial which Unconstitutionally deprived Appellant
of his Property..
Appellant states that Court proceedings were Fundamentally Unfair,
causing many Abuses of Court Discretion, and Violated Appellants'
14th Amendment to the United States Constitution ..
(23)
POINTS OF ERROR AND ARGUMENTS
ISSUE ONE
The Appellate Court Reviews the Trial Courts' decisions under
an ABUSE OF DISCRETION standard.. It is an Abuse of Discretion when the
Trial Court, as to legal issues, acts without reference to Guidelines,
Rules, or Principals, or as to Factual Issues, or acts in an Arbitrary
or unreasonable manner. .
The following issues, except those involving the QDRO, have been
brought ta the Courts' attention by way of :
(1) Appellant's Request for NEW TRIAL, denied by Judge Shelton;
(2) Appellant's Appeal to the Ninth Court of Appeals and to the Texas
Supreme Court, both Denied as Time-Barred by a Reply to a Remand
dated April 20,2012, where Judge Shelton and Att.Tray Soileau held
Ex Parte Conversations to deliberately hinder and sabotage Appellants'
Right to Appeal;
(3) Appellant's Motion for BILL OF REVIEW Filed on December 2012, again
on June 2015 (First Amended)!, and again on July 2016 (Second Amended)..
The BILL OF REVIEW were Denied by Judge Shelton an August 3,2017
without giving a reason for such Denial.. A Finding of Facts and
Conclusions of Law Request was sent to Judge Shelton on August 12,2017..
Appellant received Respose on Sept .28,2017, but the " Past Due Findings »
Filed on Sept.21,2017 has not been answered by the Court and a 3rd such
Request has been issued as of date..
Appellant has not heen negligent and has brought ALL Legal Issues
before the Court pursuant to the Rules and Guidelines of Statutory
Authorities, (see: ALL Court Transcripts and Motions Filed)...
(24)
(3) the Trial Court failed to give meaningful or any consideration to
Appellants' repeated Motions Far Appointment of Counsel after making
Appellant Indigent at the Ex Parte Hearing when Judge Shelton Awarded
100% control of Appellants' Retirement Annuity to Appellee, and then
stating at Trial that HE neither had the Authority nor the Funds to
Appoint Counsel for Appellant. The accuracy and proper division of
property were at their peak, and the risk of Error on specifically
troublesome paints of Law could have been properly argued by a
professional Lawyer.. Chief Justice Oniell stated in 5mith v. Smith,
225 5.Ul.3d 140," By attempting to Represent himself,[defendant] was
Disadvantaged from the outset. Laymen simply can not be expected to
know how to protect their Rights when dealing with a practiced and
carefully counseled Adversary".. Appellant was Forced to Defend
himself by Judge Shelton's Abuse of Discretion in making Appellant
indigent, destitute and then refusing Appellant his Right to Appointed
Counsel.. There is a presumption that an indigent, incarcerated
litigant has the Right to Appointed Counsel when the Risk of the
proceeding might lead to confinement.. The admission in Court by
Att.Troy Soileau that the District Attorneys from Jefferson and
Newton Counties had been invited to hear testimony from witnesses
to evaluate if further Charges would be Filed on Appellant clearly
constituted a Possibility of Further Confinement..
Tex.Gov't Code, § 24.016 states that a District Judge may Appoint
Counsel for an indigent Party in a Civil Case who makes an
Affidavit that he is too poor to employ Counsel,, Thomas v. Anderson,
B61 S.W.2d 58...
(4) the Trial Court forced Appellant to wear prison clothing throughout
the WHOLE Trial Court proceedings., pursuant to the Tex.Rules of
App.Proc., sec. 33.1 (a), as a prerequisite to presenting a complaint
for Appellate Review, the Record must show the Complaint was made to
the Trial Court by a Timely Objection (see: Reporters' record in Cause
F-206473, Matter of Marriage of Pelloat) ..
(26)
Because Appellant told the Court the Free-World clothing was avaiable
for Him at the County Jail, the Trial Courts' Decision to Deny Appellant
access to the Free-World clothing and Force Appellant To Act as His own
Attorney in an Orange Jefferson County Jumpsuit and Bound with Shackles,
was Arbitrary, Unreasonable, Shacking to the Concicus and clearly an
Abuse af Discretion.. Under these circumstances, it Violated Appellants'
Right to a Fair Trial, Guaranteed to him by the Due Process, Equal
Protection, and Fundamental Fairness Clauses of the United States
Constitution (U.S.C.A. Const .Amend., 5th, 6th, and 14th),, and also
Art. 1, sec. 9, of the Texas' Constitution. . The mere fact that
Appellant was incarcerated WA5 NOT suffient Reason to Shackle or Force
Appellant into prison clothing, In re K.R.,22 S.W.3d B5..
Before any Judge should permit a case to proceed under such
circumstances, He should be very sure of His grounds and the Record must
reflect those Reasons.. The Record in Appellants' Cause is Void as to
ANY Findings by the Trial Court for such a need to restrain the
Appellant, Force him into wearing prison/jail clothing.. Moreso,
the Record is Void as to the Trial Court giving curative instructions
to the Jury..
(5) the Trial Court acted without regard for Guidelines, Rules or
Principals, Abuse its' Discretion and rendered the Entire Trial
Fundamentally Unfair, Denied Constitutional Rights of Due Process
and Fair Trials, and made Appellant appear to be a meancing psycopath,
presenting a clear and present danger to his Uife, to Veriremen and
to all those passing within his grasp,,see; Lemon v. Skidmore,
985 F.2d 354..., Smith, supra § 140.., Carson v. Gomez,14 S.W.3d 77B..
Appellant was humiliated and embarassed to the point of .being
Psychologically Disabled by the Trial Courts' Arbitrary and
Unreasonable decision to Force Appellant to parade theough Voir-Doir
and Trial wearing distinctively marked prison/jail clothing and clearly
identifiable Leg-5hackles.. This unreasonable and Arbitrary decision
by the Trial Court rendered the Entire Trial Fundamentalyy Unfair...
(27
(6) Trial Court awarded Damages to Appellee.. Appellant argues that
Appellee WAS NOT entitled to Damages separately nor to the Community
Estate because Appellee DID NUT prove any amount of actual Damages
caused by the alleged Fraud by Appellant, and that Appellee had actual
knowledge that Appellant not only approved of but once stated a desire
to live the alternative life-style,, Matter of Marriage Devine,
869 S.W.2d 45... Without showing actual monetary loss, there can be
No Damages, exemplary or any other kind,, Eberle v. Adams, 73 S.W.3d 322
THE COURT HAD AMPLE POWER AND EVEN THE DUTY TO PREVENT AN INJUSTICE
and the Findings of the Jury was in Error and/or in Excessive,,
Moore v. Moore, B40 S.W.2d B21.. The burden was on Appellee to
establish Damages with reasonable certainty to ensure a Jury could
compute passible Damages,, Lowe v. Gulf States Utilities Co.,
75 S.W.3d 449.. Despite the Jury's broad discretion in awarding
Damages, there must be some Evidence to justify the amount awarded,
as a Jury can NOT simply pick a number and put it in the Blank as was
done in Appellants' case,, Shindler v. Anderson, 985 S.W.2d 392..
Excessive Damages can nat put a Defendant into insolvency,, Haslip,
449 U.S. 1, @ 21 ..
(7) Trial Court awarded Separate Property to Appellee.. Appellant was
egregiously Harmed when the Trial Court found that the Property known
as 212 south 15th Street, Nederland, Texas was 100% Appellees'
separate Property when Record will show that at the inception of
Title, the Property was GIVEN to Appellant and Appellant ONLY, on the
death of Appellants' Mother, Lizzie Bell Lee Pelloat on Dctober 3,2003,,
D.B. v. K.B., 176 S.W.3d 343...; Alsenz v. Alsenz, 101 5.W.3d 643...;
Henry S. Miller v. Evans, 459 S.W.2d 426(Tx. 1970)..; Colden v.
Alexander, 171 S.U.2d 328( Tx.1943)..; Matter of Parrish, 7 F.3d 76
(Ca.-5,Tx.) ..; Tex .Fam.Code, § 3.001(1) and § 3.002...
Texas Law firmly fixes character of Property as 5eparate or Community
at the time of Inception,, Ray v. U.5., 3B5 F.Supp. 372..; Barnett v.
Barnett, 67 S.W.3d 104 (Tx.2001)...
(2B)
Separate Property will keep its' character throughout a series of
Exchanges,, Walton v. Walton, B64 S.W.2d 652..; Camp v. Camp,
972 S.W.2d 906..; Winkle v. Winkle, 931 5.W.2d 420..; Welder v. Welder,
794 S.W.2d442Q.... Appellant presented to the Court the Separate Property
issue in His Motion For A New Trial and in His Appeal to the Ninth Court
of Appeals.. Separate Property of one Spouse CAN NOT become the
Separate Property of the other because the nature of property is
determined by the Constitution rather than that which may be just and
fair,, Tex. Const., Art. 16 § 15...; Eggemeyer v. EgggfflByer, 3.- •- r
554 S.W.2d 149 (Tx.1977)...
The Warantee Deed Dated November 14, 2004 (see:Petitioners' Trial
Exhibit 4) clearly shows NO INTENTION by Appellant to convey ownership
of the House into Appellees' Separate Property as a Gift nor Separate
Property Recital,, Roberts v. Roberts, 999 S.W.2d 424..; Bahr v. Kohr,
980 S.W.2d 727..; Scott v. Scott, 805 5.W.2d 885..; Campbell v.
Campbell, 587 S.W.2d 513..; Bohn v. Bohn, 455 S.W.2d 404..;
Decker v. Decker, 192 S.W.3d 645,657... The Instrument of Conveyance
must contain a Separate Property Recital,, Scott, supra..
The Warranty Deed contains No such Recital or a Donative Intent. The
presumption that property Deeded by one spouse to the other is
Separate Property by gift unless, as noted above, the Deed was procured
through Duress or Undue Influence.. Record will show that Appellant
was arrested on November 7,2004 on 2 Felony accusations Charges.. By
November 14,2009 word had spread to both Appellee and Appellant about
eventual Lawsuits to take EVERYTHING that Appellant owned.. By this time,
November 14,2009, Appellant had only been offered a PLEA BARGAIN of
99 years on one Charge. Facing a large number of years in prison and
future Lawsuits, Appellant put the House that's in Nederland, Tex., in
Appellees' name to preserve and protect His Family Home..,and also to
provide a place for Appelle to live, and to have a Home for Appellant
to Parole to in the Future. Additional Stress was added when Appellee
refused to allow Appellant to put the House in His Daughter's Name;
therefore, under Stress and Duress Appellant had no other choice but
to put the House under Appellee's Name, but it was NOT as a Gift as
Appellee and Her Attorney, Troy Soileau, sd Declared at Trial..
(29)
The Trial Courts' Mischaracterization of said Property was Error, a
Reversable Error.. A Trial Court CAN NDT diveat a 5pouse of his Separate
Property,, Berry v. Berry, 647 S.W.2d 945(Tx.1983).; Roach v. Roach,
672 S.W.2d 524.. Appellant has shown that, at the Inception of Title, the
House at 212 south 15th Street was put in Appellants' name, becoming His
Separate Property...,there was NO Donative Intent nor Separate Property
Recital in the Warranty Deed, and the House was Mis-Characterized at
Trial which created a Reversable Error.. The Pelloat Family Home should
be returned to Appellant as His Separate Property.. The House should in No
Way be SOLD by Appellee, Katherine Bolenbaucher. . Appellant Filed a Motion
For Injuction to prevent Sale of the House/Property, but it was Denied hy
Judge Shelton , making Him Civilly Liable if Sold,, Rusk v. Rusk,
5 S.W.3d 299.; Little v. U.S.Fidelity & Guaranty, 217 MISS. 576, 64 So. 2d 697,
(B) the Trial Court Egregiously Harmed Appellant by Awarding a Disproportionate
share of the Community Property to Appellee (75%-Appellee to 25%-Appellant)
without ANY justification.. Courts have held that circumstance MUST
justify awarding more than \ of the Community Property to one Spouse,,
Smith v. Smith, 836 S.U.2d 688,; Fisher-Stoker v. Stoker 174 S.W.3d 272..
There are 7 Reasons that a Judge might consider Ordering more than \ of
the Community Property within the Tex.Family Code,§ 7.001..None of
those Reasons were given by Judge Shelton; However, Fault was the ONLY
thing discussed at the Trial, indicating that the Reason must be
Fault.. While Fault may be considered, the Division of Property should
NOT be punishment for the 5pouse at Fault.. Circumstance MU5T be
justified,, Smith, supra.. A Double Recovery exists when a Plaintiff
obtains more than One Recovery from the same injury.. A Double Recovery
is impermissable when a Tort action is Tried with a Divorce, it is
imperitive that the Court avoid a Double Recovery..
Appellant states that a Double Recovery occurred in His Case when
Judge Shelton awarded 75% of the Community Property to Appellee without
Any justification and then allowed $1 ,010,QD0.00 in Excessive and unproven
damages to Appellee for the only item presented which was Appellants' crime
30)
Therefore, if a Fact-Finder awards damages,.the Court must NOT consider
the Tortous activity in the Division Df the Marital Estate.. Since the
Tortious activity was the only thing discussed it should be safely
assumed that the Tortious activity or Fault cauld be the only reason
to Award 75% of the Community Property to Appellee as punishment and
Double Recovery,, Toles v. Toles, 45 S.W.3d 253, rev.,Toles, 113 S.W.3d
Bgg (Tex.)..; Schuleter v. Schuleter, 929 S.W.2d 96..; Cho v. Hong,
249 S.W.3d 441..; Foly v. Parlier, 68 S.li).3d 870... The Trial Court
Erred when it made a Disproportionate Division of Community Property
as to be inequitable,, Handley v• Handley, 122 S.W.3d 904..
There are very few cases where 75% - 25% is a Fair and Just share split
of the Community Property but those ARE justified through Reasons
contained within the Tex. Family Cade..
(9) the Trial Court allowed opposing Counsels' use of inflammatory language
Appellant argues that He was egregiously Harmed by opposing Counsels'
repeated inflammatory arguments so as to inflame the minds of the Jury,
referring to Appellant as being a Dangerous Predatory Pedophile and/or
Child-Molester that it could not have been cured by pulling apposing
Counsel into the Judge's Chambers for an Ex Parte Conference during
the Trial.. Unwarranted and Repeated personal attacks an Appellant
must be seen as incurable, and it is clear that Att.Troy Soileau went
outside the Record and indulged in Inflammatory language in order to
influence the Jury tD return a high amount of Exemplary and Punitive
Damages.. Courts have held that Objection is NOT required to preserve
Error in the Case of incurable Arguments that were so inflammatory
that it is Harmful and Prejudicial that it can not be cured by
Personal Conference with the Judge nor Motion to Disregard,,
Williams v. Lavender, 797 S.W.2d 410..; Gorman v. Life Ins.,
B59 S.W.2d 3B2..; Amelia's Inc. v. Rodriguez, 921 S.W.2d 767..;
Austin v. Shaminie, 94B S.W.2d 927..
(31 )
(10) the Trial Court acted with disregard to Statutory Rules and Guidelines..
Appellant argues that the Rules relating to Service and Notice are
MANDATORY, and a Judgment entered that does not comply with the Rules
set regarding Certificate of Service or Notice is in All regards VOID,,
Langdale v. Villimil, 813 S.U.2d 443..; Mabon, Ltd., 369 S.W.3d 312
(Tx.2012)..; Caldwell II, 154 5.LI.3d @ 197 (Tx.2004)..; Board of
Trustees of Bastrop ISP v. Toungate, 959 S.W.2d 365 (Tx.1997(..
Courts have held that the Motion being sent for judgment must be given
to ALL interested Partys by the Movant, or else the correction is a
Nullity,, West Tx. State Bank v. Gen. Rest. Mgmt., 757 S.W.2d 304..
A judgment is VOID for Lack of Service,, CCGECP u R of M v. Arriba, Ltd,
BB2 S.U.2d 576.. The Tex. Rules of Civ. Proc. requires Motions of ANY
kind tD be in writing and contain a Certificate of Service,,
Union City Body, Inc. v. Ramirez, 911 S.W.2d 196.; Loffland Brae. Co. v.
Downey, 622 S.W.2d 249.. The Record will reflect that NONE of the
NUNC PRO TUNCs presented to and signed by the Judge contained any
Certificate of Service or Notice as is required by Rule 21a of the
Tx.R.Civ.Proc... Failure to comply with Service/Notice to opposing
Counsel is Denial of a Partys' Right to be heard in a contested case,,
Loffland, supra,,; Rule 8.219, Tx.Civ .Prac .& Rem.Code.. A Partys'
Due Process Rights are Violated when He does not receive adequate
Notice of a Hearing or Trial setting,, Brouseau v. Ranzau, 25 S.W.3d 285;
Lopez v. Lopez, 754 S.W.2d 921 (Tx.1988)..; Soloman, Lambert, Roth &
Assoc, v. Kidd, 904 S.W.2d 897..
Appellant DID NOT received NOTICE of any NUNC PRO TUNC proceedings
nor that such were Signed by Judge Shelton.. Moreso, the Hearings of
Nov.5,2009,, Nov.18,2012,, Apr.10,2014,, July 11,2017, Appellant was
only given ONE DAY NOTICE of the Hearings by Prison Officials.. Nothing
came from the Trial Court about the Date and Time of the Hearing nor
what would be discussed thereat..
(32)
The Supreme Court has made it clear that the Record of Service must
show compliance with the Rules covering Service of process,,
Caldwell v. Barnes, 975 S.W.2d 535 (Tx.1990).. Lack of Service is
Denial of Due Process Constitutional Right, which relieves the showing
of the Three Elements regulating a BILL OF REVIEW,, U.S.C .A. .Const.
Amen.,1 4th._.; Caldwell II, supra @ 197.. If a judgment was rendered
without Service in Accordance with Rules of Service, it renders the
judgment VOID,, Strawder v. Thomas, 846 S.W.2d 61..; PSU-Exts. Elec. v
Trejo, 166 S.U.3d 889..; Tx.R.Civ.Prac.,Rule 124.. The Final Decree
and its' NUNC PRO TUNCs are ALL VOID Judgments, and Appellant is
suffering from a wrongfully obtained:Oudgments. . Equity is satisfied
and the Court should GRANT requested RELIEF,, State v. 19B5 Chev.
Pick-up Truck, 77B S.W.2d 463..
Appellant argues that when Judge Shelton signed the NUNC PRU TUNC
Final Decree of Divorce, it VOIDED the Original Final Decree of
Divorce AND making everything signed on or after April 25,2011
Null and Void and ALL Properties and Judgments awarded are Void
and a Nullity. . .
(11) the Trial Court violated Appellants' Due Process Rights.. Courts have
held that failure to comply with Service or Notice to apposing
Counsel Is Denial of that Partys' Right to be heard in contested
case and a violation of Due Process,, Loffland, supra..; Caldwell,
supra..;; U.5.C.A.,Const.Amend.,14th... Trial Court MU5T grant
sufficient Time for Discovery and reasonable Notice of [any] Trial
setting,, Freeman v. State, S.W.3d 827..; Tex.Const.,Art.1 § 19..;
Brouseau, supra... A Party's Due Process Rights are violated when
when He does not receive adequate Notice of a Hearing or Trial
setting.,, Lopez, supra..; In. re.North Amer. Refrac. Div. Co.,
83 S.W.3d 97..; Const. Law Digest, Keys 256.6 and 314..
Eventes v. Sacoin, 4D7 U.S. 67, B092 S.Ct. 19B3..
(33)
The Court held in Eventes that 2 week Notice of a Trial setting is
NOT meaningful Notice of Service...
(12) the Trial Court ORDERED the changing of the Division of Property..
A QDRO is a species of Post-Divorce Enforcement or Clarification. .
It may not alter or change the Division af Property made ar approved
in the Decree of Divorce which, according to the Rules of Service
within the Tx.R.Civ.Proc, that Judgment is VOID for Lack of Service,,
Tex.Fam.Code,§ 9.002a. .; Reiss v. Reiss, 118 S.W.3d 439 (Tx.2Q.Q3)..;
Gainous v. Gainous, 219 S.W.3d 97..
The Formula used at Trial was Taggart v. Taggart, 552 S.W.2d 423..
The Taggart Formula states that a Wife's share of a Husbands'
Retirement is \ of the Community Property Interest determined by:
COMMUNITY PROPERTY^ the number Df years married under the
retirement plan divided by the number of
years worked under the plan
Appellant argues that the QDRO changed the Tap Number so as to say
that the Standard Annuity is based on Salary and Service during Marriage
The Top Number in the QDRO Formula had increased the Benefits earned
during Marriage from 13 (Taggart) to 23 years,3 months.. The QDRO
Formula significantly altered the Division of Property which
violated the Texas' Supreme Court ruling stating that benefits are
determined at Retirement and NOT at Divorce.. With a Fully Matured
Retirement Courts apply the Taggart Formula to determine the extent
of the Community Interests,, Limbaugh v. Limbaugh, 91 S.W.3d 1 ,,;
Appellants' Retirement was Fully Matured in 2000. . Thus, increasing
the number of years of Marriage to the date of the Divorce in 2010
greatly changed the Division of Property.. The Taggart Formula is
backed by the Courts in, Berry v. Berry, 647 S.W.2d 945 (Tx.1983),,
Burchfield v. Finch, 91BS.W.2d 422 ,and Shanks v. Treadway,
110 5.U.3d 44 (Tx.2D03)
(34)
As of 2015, a total of 24 Cases have cited Taggart in front of the
Texas Supreme Court.. All have stated in partition action that a
former Husbands' Retirement Benefits are to be apportioned based
on Taggart at the Date of Retirement and NOT the Date of Divorce,
except in certain cases where Retirement happens after Divorce..
The Courts' refusal of using Taggart instead of the QDRO Formula
goes against the Guidelines, Rules, and Standards in place and is
an Abuse of Discretion..
(13) the Trial Court Uver-Ruled Appellants' Objections regarding the
unclear number of years used within the QDRO.. The QDRD must contain
clear, concise numbers pursuant to the Tex.Farn .Code, § 9.008..
The QDRO that was Approved and Signed by Judge Shelton lacked clear
Numbers.. When Appellant questioned those unclear Numbers used
or those to be used in the QDRO, Judge Shelton got Angry, threatened
to remove Appellant from the Hearing, and abruptly and arbitrarily
ended the Hearing by Signing the QDRO OVER Appellants' Objections..
Appellant was not able to Fully develop his Objection, especially
the Addition Df Special Instruction 6 which was added by opposing
Counsel, having removed Special Instruction 1 from Origonal Motion,,
Jones v. Janes, 154 S.W.3d 225. . A Trial Court Errs when it enters
an Amended QDRO, if there is nothing in the Record ta indicate the
Amended QDRO was necessary.. The reason given was to meet
requirements by the Teachers' Retirement System for a QDRO..
The only change was the withdrawal of Special Instruction 1 and
adding Special Instruction 6 by Opposing Counsel.. On the Original
Motion that contained Special Instruction 1, it mentioned a
valuation date that extended the number Df years of Marriage to the
date of Divorce.. As was told ta Appellees' Attorney, Ms.Petitt, in
Appellants' Reply, valuation date had to do with the date Df death of
a Spouse and neither Mrs.Bolenbaucher nar Appellant were dead.. Thus,
Special Instruction 1 was withdrawn and Special Instruction 6 was
added to DEFRAUD the Teacher's Retirement System out of mare money..
(35)
(14) the Trial Court DENIED Appellant to present Evidence.. Appellant was
egregiously Harmed when Judge Shelton Denied Appellants' Evidence
Exhibits and Stating that the Evidence would confuse the Jury because
it had Two ways to determine Taggart; However, Judge Shelton allowed
Appellee's Exhibits which stated that the number of years Married
was 23.5 years tD confuse the Jury about the number of years to be
used on the Top number of Taggart.. The Denial of One's Evidence
and acceptance of another's clearly DEFIES Rule 403 af the Federal
Rules of Civ.Proc. ., the 2Bth Amend, to the United States' Const.,,
and an Abuse of Discration.. .
(36)
POINTS OF ERROR AND ARGUMENTS
ISSUE TWO
EXTRINSIC FRAUD
The type of Fraud necessary to Set Aside a Judgment in a
DILL OF REVIEW action under Texas Law is Extrinsic Fraud pursuant to
the Tex.Civ.Prac.& Rem.Code, Art.§ 16.051..; In re Husain, 168 B.R. 591 ..
Any Fraud practiced on the Court is always Grounds far Vacating a
Judgment..
Appellant states that the fallowing is where the Court was
deceived or misled as a material circumstance:
In the July 1,2009 Ex Parte Hearing from Att.Soileau to Kathy McKay
Soileau -" it is true you are receiving funds from Teacher's Retirement
System?",
McKay -" yes, I am".,
Appellant states that this was Fraud and Perjury to make Judge Shelton
believe that Ms.McKay was receiving money from Teacher's Retirement
System when in fact it was actually Appellant, James Allen Pelloat, that
was receiving funds from the Teacher's Retirement System in the form of
His Retirement Annuity. .
More examples of Extrinsic Fraud occurred in the Final Decree
of Divorce, in the NUNC PRO TUNC Final Decree of Divorce, in the First
Amended NUNC PRO TUNC Final Decree of Divorce, and in the Second Amended
NUNC PRO TUNC Final D^crae of Divorce wh^n Att. Slileau listed 11 items
of Prope.:rty tha t ;Ypp a 11 a n t could receive from Appellee, . The problem
however was that each of those items belonged to Third Parties at the
time the Divorce, and not owned by neither Appellee nor Appellant,
creating Fraud on Appellant and the Court for Over $ 73,000-OD..
Each document and each item was a different Violation of the Texas
Penal Code § 32.10- Tampering with a Goverment Record..,and such could
also be Prosecuted under Tex.Penal Cade § 32.46- Attempt to Defraud
Another., sec.(2) causes or induces a Public Servant ta file on Record
any propurted judgment or document..
(37)
The examples of Extrinsic Fraud listed:
1()1 the Denial of Discovery;
2) the lack of Notice and Certificate of Service on ALL NUNC PRO
TUNCs signed by Judge Shelton;
3) the lack of Notice by Judge SHelton as to the Dates of Hearings
and what was to be discussed at those Hearings with Appellant
only being left out; and
4) the Official Mistake and lack of the Clerk of the Court on
NEVER sending Notice immediately to ALL Partys that the Judge
had Signed a Document or Issued an ORDER..
All the above are well Documented under earlier proceedings, but Law Cases
in support of Appellants' Arguments above are as fallow,, Flores, supra..;
In re Husain, supra..; CCGECPW u R of M, supra..; Pinkston v. Pinkston,
266 S.W.2d 575..; Amer.Gen.Fire & Cas.Co. v. Shatman, 761 5.U.2d 582..;
Tex.Civ.Prac. & REm.Code, Art. § 16.051. ..
(3B>
POINTS QF ERROR AND ARGUMENTS
ISSUE THREE
UFFICIAL MISTAKE
Official Mistakes occur when an Official of the Court fails
to perform their Duties as they are Required and those Errors hinder
Parties from properly Defending their Cases in Court..
Pursuant ta Rule 306a (3), Tex.R.Civ.Proc. , when a Final Judgment
or other Appealable Order is Signed, the Clerk of the Court SHALL immediatelly
give Notice to ALL Parties or Their Attorneys that the Judgment or Order
was signed by First-Class Mail..
Official Mistake, for purpose of obtaining a BILL OF REVIEW,
refers to either Erroneaus Information given by the Court ur an Official
Court function or Mistake of Error of the same in the Discharge of required
Official Duties,, Mowbray v. Avery, 76 S.W.3d 663,665..
The Clerk of the Court for the 279th District Court failed to
immediately sn-nd Notice that 1 ) the Final Decree of Divorce was Signed on
April 25,2011, 2) the NUNC PRO TUNC Final Decree of Divorce was Signed
on July 11,2011, 3) the First Amended NUNC PRO TUNC Final Decree of
Divorce was Signed on August 16,2011, and 4) the Second NUNC PRO TUNC Final
Decree of Divorce was Signed on August 17,2011.. Four (4) Official
Mistakes were made as well as Failing to serve Notice on Appellant about
the Declaration of Divorce which was Signed on August 26,2010.. Although
Appellant was present on August 26,2010 in Court, nothing was sent in
writing to Appellant indicating the signing of such. .
It was an Official Mistake by Judge Shelton when He Failed to
require that a Certificate of Service be attached to the NUNC PRO TUNCs..
It was an Official Mistake of the District Clerk in Failing to
require that a Certificate of Service be included in ALL Motions filed..
39)
Review can be justified for Officials who improperly execute
Their Official Duties or Official Mistake,, Nichols v. Jack Ekerd Corp.,
908 S.W.2d 5.. Failure of the Court Clerk to send Notice is an Official
Mistake,, Lawrence v. Laurence, 911 S.W.2d 463..
Dn April 20,2012 a Hearing was held.. Prior to the Hearing
Judge Shelton and Att.Troy Soileau had discussed what was to be covered
at the Hearing.. At some point during that Ex Parte Conversation
Att.Soileau was told to bring a copy of everything to the Hearing that
He had sent to Appellant.. Then on the day of the Hearing before
Appellant appeared at the Hearing via Telephone, Judge Shelton says
to Att.Soileau, " we just have to... I need you to be sure and get your
letters together showing when you sent him everything"..
This was Recorded by the Court Reporter and appears on page 4, lines 4-10,,
where then Att.Soileau replies," I got it, Judge".. Appellant is not put
on the Phone until line-16..
This is not only an Official Mistake, it is an Ex Parte
Communication between the Judge and only One party, Att.Soileau.. It is
also Judicial Misconduct and Civil Conspiracy where the Two conspired
against Appellant..
At the end af that Hearing the Record continues to state on
page 34, lines 1-11,
the Court: Nunc Pro Tunc...and that...and that on...and according...
and on August 17,2011 is apparently the first time that
you laid eyes an the...on the...the Nunc Pro Tunc, is that
the one that you actually saw?
Mr. Pelloat: No. I saw all of thern at one time.
the Court: Okay. And that was on August 17 ?
Mr. Pelloat: Yes sir...
(40)
The conversation ended with the Judge and Appellant agreeing
that on August 17,2011 Appellant First saw the NUNC PRO TUNCs...
It is obvious to Appellant that after He got off the Phone
Judge Shelton and Att.Soileau had a further Ex Parte Conversation because
Judge Shelton sent His reply to the 9th Court of Appeals that same day
stating that Appellant knew something was Signed an July 11,2011 ..
Appellant states that He DID NOT know what was Signed thereat because
Att.Soileau NEVER sent Him a copy of said NUNC PRO TUNCs as required
bY Rule 21a of the Tex.R.Civ.Proc.,. Moreso, according to Rule 124 of
the Tex.R.Civ.Proc., there can be NO JUDGMENT without proper Service..
The activity between Judge Shelton before, during, and after this Hearing
should Disrobe and Disbar each individual —
It was an Official Mistake and Abuse of Discretion to
arbitrarily Deny Appellant's Motion for a BILL OF REVIEW.. No reason
for Denial was given.. In a Motion for a BILL DF REVIEW, Appellant need
only to prove a Prima Facie Case to send the Motion to a Trial, as
Appellant has done herein,, Caldwell, supra..; State v. 1985 Chev. Pick-up
Truck, supra.,,; Beck v. Beck, 771 S.W.2d @ 162 (Tx.1989)..;
Dean v. Kirk, 508 S.W.2d 70 (Tx.1974)
(41 )
PDINTS OF ERROR AND ARGUMENTS
ISSUE FOUR
VOID JUDGMENTS
Appellant argues that the signing of the Final Decree of
Divorce and ALL subsequent NUNC PRD TUNCs are in fact VOID..
Rule 316, Tex.R.Civ.Proc.,- Thereafter the Execution SHALL conform to the
Judgment as Amended..
When the NUNC PRD TUNC Final Decree of Divorce was signed on July, 11,2011,
the Amended version REPLACED the Entire Final Decree of Divorce.. Thenafter,
each subsequent NUNC PRD TUNC completely REPLACED the previous..
Rule 124, Tex.R.Civ.Proc., states that in NO case shall Judgment be rendered
against ANY Defendant UNLESS upon Service as prescribed in these Rules,
ijRule 21 & 21a, Tx.R.Civ.Proc.)
With NO Certificate of Service attached to any of the NUNC PRO
TUNCs, and Att.Soileau's Letter dated August 17,2011 confirming that prior
Notice of Service HAD NOT been given, and with the New Orders voiding the
Old Ones, the Final Decree of Divorce and its' NUNC PRG TUNCs are ALL Void,
and Appellant is suffering under a Void Judgment,, Middleton v. Murff,
689 S.W.2d 212 (Tx.19B5)..; Dean, supra..; In re E.R., 385 S.W.3d 552
(Tx.2012)..; Walling v. Metcalfe, B63 S.W.2d -- (Tx.1993)..; Browning v.
Prostok, 163 S.W.3d 336 (TX.20D5)...
(42)
POINTS OF ERROR AND ARGUMENTS
ISSUE FIVE
DUE PROCESS VIOLATIONS
Appellant argues that His Rights under the Consttutional
Due Process Clause of the 14th Amendment to the United STates Const,
were Violated..
Due Process is violated when a Defendant Does NOT receive
actual or constructive Notice of a Judgment put before the Court or in
a Hearing of Motions.. Due Process Violation is established if the
Defendant proves He was NOT Served or Did Not receive Notice,,
Mabon, Ltd., supra..; Caldwell II, supra...; Cash v. Beaumont Dealers
Auto Auct.,Inc., 275 S.W.3d 91B. . .
Judgment is Void for lack of proper Service which DENIES party
of Due Process.. There was NO Certificate of Service on ANY of the NUNC
PRD TUNCs filed by Att.Soileau, and there was NO advance Notice given to
Appellant regarding the Phone-Hearings held an Nov.8,2011,, Nov .28,2011,,
April 20.2012,,and July 20,2015.. Yet, there WAS advance Notice given ta
Appellees' Attorney, Tray 5oileau,., In re Marriage of Ham, 59 S.W.3d 326,;
In re North Amer.Refrac.Div.Co., supra..;CCGECPW u R of M, supra..;
Brauseau, supra...
If a Defendant was NOT Served in Original Proceeding,
Constitutional Due Process releases Him of Showing far Cause 1, 2 & 3
of the BILL OF REVIEW Statute. ,, Caldwell, supra @ 536
(43)
RELIEF REQUESTED
Appellant Respectfully Requests The Following Relief From BILL DF REVIEW :
(1) that Appellants' Retirement Annuity being Awarded to Appellee be
determined by the Taggart formula or by Shanks, which actually is
now a more accepted Division of Property, as Taggart has been
Red-Flagged as too lenient.. This was mentioned in a offer to
Appellee to Settle this case once and for all..;
(2) that Appellees' share of the Community Property Interest involving
Appellants' Retirement Benefits be designated as 50% NOT 75%, which
is still unjustified by Judge Shelton.. If 5hanks is used, it
eliminates the Judge's 75% Decision and the 50% of Taggart, and
the mis-calculation within the QDRO..;
(3) that the House at 212 south 15th St., Nederland, Texas be declared
Appellants' Separate Property due to the Inception of Title, and
be returned to Appellant and His Family as originally Promised
by then Mrs. Pellaat-McKay..;
(4) that ALL Injunctions against Appellant be Dismissed..;
(5) that Appellant be Reimbursed for ALL Fees paid to the Court for
this Case as listed in the various Courts' Dockets and Bill of Costs
either adjudicated to Judge Shelton, Att.Tray Soileau, Appellee
Katherine Pelloat-McKay-Balenbaucher, and Att.Melody Petitt...
The Hearing Far The BILL DF REVIEW should determined if
Mrs .Balenbauchers' 5th and newest Attorney will be Liable...
(44)
PRAYER
Appellant Prays that this Honorable Court see pass Hiss crime
and incarceration and acknowledge the Abuse and Harm that has been
inflicted apond Appellant by the Court, by Appellee and by a Team of
different Attorneys throughout the proceedings of this Case, and GRANT
Appellant the Requested Relief and Finally give Appellant Justice..
Justice is really all Appellant is seeking and not trying to Deprive
Appellee of any Property that is rightly Hers ..
SO MOVED AND PRAYED FOR ON THIS "5^ DAY OF k-g&g'M^g^ ,2017..
Respectfully Submitted,
James A. Pelloat, Appellant
T.D.C.J.#1289716
C.T.Terrell Unit
1300 F M 655
Rosharon, Tex.77583
(Appellant pro-se)
DECLARATION
I, James Allen Pelloat, am the Appellant herein and being presently
incarcerated within T.D ,C.J.-I.D. at the C.T.Terrell Unit in Rosharon,
Texas, Delare under Penalty of Perjury that according to my belief, the
Facts Stated in this Appellant's Brief are True and Correct..
nv
SIGNED THIS %_ day of k&C5W%0L, 201 7. .
James Allen Pelloat
Appellant pro-se
(45)
CERTIFICATE DF SERVICE
THIS IS TO CERTIFY THAT A TRUE CDPY OF THIS APPELLANTS BRIEF
HAS BEEN DEPOSITED IN THE MAIL-BOX AND MAILED BY CERTIFIED MAIL
TO THE BELDW LISTED PARTIE5 ON THIS THE f DAY OF b&CGto&SK,2017. ..
Sincerely,
"Oames A. Pelloat- Appellant
1) CA^AfWsffolU^ Court clerk
"H Court of Appeals
2) Lawyer For Appellee
S&fLftMb Lapray
1240 Orleans
Beaumcnt, Texas 77701
3) Jamie Smith, District Clerk
Jefferson County District Clerk
279th District Court
1D01 Pearl St., Suite 203
Beaumont, Texas 77701
4) File,jap
(46)