Case Information

*1 ORIGINAL FILE0 M TneCotiTtSJA^ate Sixth ©fsWfet Ttie *. -urt ot Appeals NO. 06-15-00038-CV "' sbAh District NOV 1 $ 2015 KOV 1 8 2015 TRIAL COURT NO. 2013-09-482-CCL Texarka'na, te'x'a's Tixarkana, Texas * Debra K. Aufray, "6fe'rk Debra Audrey, ClerK IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT TEXARKANA, TEXAS

IN THE MATTER OF THE MARRIAGE OF AMANDA CHERI BRADSHAW, Petitioner/Appellant AND

BARNEY SAMUEL BRADSHAW, Respondent/Appellee Appeal in Cause Number 2013-09-482-CCL From the County Court at Law Rusk County, Texas

The Hon. Chad Dean, Presiding Judge BRIEF FOR APPELLEE

BARNEY SAMUEL BRADSHAW RESPONDENT/APPELLEE TDCJ No. 01942978 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886 ORAL ARGUMENT REQUESTED *2 TABLE OF CONTENTS

Page Index of Authorities ii Statement Of The Case 2 Statement Regarding Oral Argument ... 3 Summary Of Appellee's Replies 3 Appellee's Reply To Appellant's First Issue 3

Appellant's Contention 1 3 Appellee' s Reply 3 Argument And Authorities ... 4 I. No Error Was Preserved. . . 5 II. There Was No Error In The Characterization Of The House And Real Property 5 Appellee's Reply To Appellant's Second Issue 8

Appellant's Contention. •••\ 8 Appellee's Reply 8 Argument And Authorities 8 Prayer 9 Certificate Of Compliance 10 Certificate Of Service 10

INDEX OF AUTHORITIES CASES . Page In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373

(Tex. App.-Dallas 2013, no pet.) 6 Neyland v. Raymond, 324 S.W.3d 646 (Tex. App.-Fort Worth 2010).. 6 Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997) 6 Toles v. Toles, 45 S.W.3d252 (Tex. App.-Dallas 2001) 6 Von Hohn v. Von Hohn, 260 S.W.3d 361 (Tex. App.-Tyler 2008)...5,6 Wells v. Wells, 251 S.W.3d 834 (Tex. App.-Eastland 2008) 6 Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) 6 CODES, STATUTES & RULES

TEX. R. APP. P. 33.1(a) 5 TEX. FAM. CODE ANN. § 7.001 (Vernon 2006) 5

NO. 06-15-00038-CV TRIAL COURT NO. 2013-09-482-CCL IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT TEXARKANA, TEXAS

IN THE MATTER OF THE MARRIAGE OF AMANDA CHERI BRADSHAW, Petitioner/Appellant AND

BARNEY SAMUEL BRADSHAW, Respondent/Appellee Appeal in Cause Number 2013-09-482-CCL From the County Court at Law Rusk County, Texas

The Hon. Chad Dean, Presiding Judge BRIEF FOR APPELLEE

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

COMES NOW BARNEY SAMUEL BRADSHAW, Respondent/Appellee, and submits this brief pursuant to the provisions of the Texas Rules of Appellate Procedure in opposition of the appeal in cause number 2013-09-482-CCL.

STATEMENT OF THE CASE This is an appeal from a Fi nal Decree of Divorce entered on June 17, 2015, by the County Court at Law of Rusk County, Texas, the Honorable Chad Dean Presiding Judge. (CR1:48-51). Petitioner/ Appellant filed an Original Petition for Divorce on September 10, 2013. (CRl:5-7). The original trial was held on November 12, 2013. The trial court made its ruling, signed and entered the Final De cree of Divorce on the same day. (CRl:12-20).

Appellee appealed the original decision of the trial court to the Twelfth Court of Appeals at Tyler, Texas. Appellee chal lenged the trial court's division of the marital estate, the award of seperate property to Appellant, and the refusal to allow Appel lee to appear in court after a request. The judgment of the Twelfth Court of Appeals was that the case be reversed and remanded to the trial court for further proceedings. (CR1:26).

Petitioner/Appellant filed a First Amended Petition for Div orce on May 12, 2015. (CRl:56-58). A hearing was held on May 4, 2015. (RR1). On May 5, 2015, the trial court entered Judge's Rul ing of Property of Parties, awarding each party equal one-half interest. (CR1:30-31). On June 9, 2015, the trial court judge en tered a ruling awarding 80% of the estate to Appellant and 20% to Appellee, based on a finding of fault in the breakup of the mar riage. (CR1:63). The trial court made its ruling, signed and en tered the Final Decree of Divorce on June 17, 2015. (CRl:64-67).

Appellee requested appointment of counsel on appeal, which the trial court denied on July 21, 2015, because he is an indigent inmate in the Texas Department of Criminal Justice. (CR1:70).

STATEMENT REGARDING ORAL ARGUMENT Appellee believes that oral argument would assist the Court in discerning the applicable case law and pertinent facts. Appel lee, therefore, requests oral argument.

SUMMARY OF APPELLEE'S REPLIES The trial court correctly characterized and confirmed the house and real property at 78 Florey Lake, Kilgore, Texas, as community property. Appellant failed to preserve for review her complaint that the trial court erred by failing to characterize and confirm the house and real property at 78 Florey Lake, Kil gore, Texas, as the seperate property of Amanda Bradshaw. Appel lant did not object to the evidence and she failed to present some of her argument to the trial court.

The trial court judge did not abuse his discretion in the division of the marital estate of the parties. Additionally, Ap pellant failed to present some of her argument to the trial court.

APPELLEE'S REPLY TO APPELLANT'S FIRST ISSUE Appellant's Contention

"The trial court erred in failing to characterize and confirm the house and real property at 78 Florey Lake, Kilgore, Texas as the seperate property of Amanda Bradshaw." (Appellant's Brief at 7). j

Appellee's Reply | i

Appellant failed to preserve her issue for review because she did not object to the evidence and she failed to present some of her arguments to the trial court. Alternatively, the trial court did not err by failing to characterize and confirm the house and *7 real property at 78 Florey Lake, Kilgore, Texas as the seperate property of Amanda Bradshaw.

Argument And Authorities

After the trial court entered a finding that the property purchased on June 22, 2012, 78 Florey Lake, Kilgore, Texas, was community property, Appellant filed a Motion to Reopen Evidence. (CR1:30-31; CRl:32-33). Appellee acknowledges that Appellant "dis- agree[d] with the Court's ruling characterizing the Florey Lake property as community property." (CR1:33). Afterwards, a hearing on the motion to reopen evidence was held on June 9, 2015. (RR3). At the beginning of said hearing, Appellant restated her disagree ment with the trial court's characterization of said property. (RR3:4-5). Appellant then entered evidence as to the asserted fault on the part of Appellee. (RR3:5-19). Appellant allowed the hearing to conclude without obtaining a ruling from the trial court that the property at 78 Florey Lake, Kilgore, Texas, was either commun ity or seperate proerty of Appellant. (RR3). In fact, Appellant clearly stated "[t]hat's all we have, Your Honor," at the conclu sion of the hearing. (RR3:25). That same day, the trial court is sued a ruling "findfing] the real estate at 78 Florey [Lake,] Kil gore, TX is community property." (CR1:63). Due to a finding of fault in the breakup, 80% of the .house was awarded to Appellant and 20% to Appellee. (Crl:63). The trial court's ruling was deli- vered via fax to Appellant's trial counsel that day. (CR1:63). An entire week passed prior to the trial court entering the Final Decree of Divorce. (CRl:64-67). Appellant failed to file a motion i to reconsider the characterization of the community property before

the final decree was filed. (CR1>

I. No Error Was Preserved

To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint and that the trial court ruled on the request, objection, or motion. See TEX. R. APP. P. 33.1(a).

Appellant's argument on appeal, that the action of a third party insurance company cannot alter the seperate property character of real estate and that Appellee produced no documentation to cor- roberate his claims for reimbursement or contribution, was not men tioned at the hearings and is not the same argument to the trial court. Nothing in the record suggests that these legal arguments were apparent to the trial court. (CRl; RR2; RR3; RR4). The trial court had no opportunity to consider or rule on these arguments. (CRl; RR2; RR3; RR4). Therefore, Appellant failed to preserve these arguments for review and they should be overruled.

II. There Was No Error In The Characterization Of The House And Real Property

In a decree of divorce, a court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party. TEX. FAM. CODE ANN. § 7.001 (Vernon 2006). A trial court's division of prop erty is reviewed under an abuse of discretion standard. See Von Hohn v. Von Hohn, 260 S.W.3d 631j 640 (Tex.App.-Tyler 2008, no pet.). In determining whether the trial court abused its discre tion, the entire record is reviewed to determine if the trial court

5 *9 acted arbitrarily and unreasonably. See Toles v. Toles, 45 S.W.3d 252, 266 (Tex. App.-Dallas 2001, pet. denied). Legal and factual sufficiency challenges are not independent grounds for asserting error in the division of property, upon divorce, but instead are relevant factors in determining whether the trial court abused its discretion. See In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 383 (Tex. App.-Dallas 2013, no pet.). An appellate court en gages "in a two-pronged inquiry to determine whether the trial court abused its discretion: (1) did the trial court have suffic ient evidence upon which to exercise its discretion and (2) did the trial court err in its application of that discretion?" Ney land v. Raymond, 324 S.W.3d 646, 649 (Tex. App.-Fort Worth 2010, no pet.).

The trial court must have an evidentiary basis for its find ings . See Salinas v. Rafati, 948 ,S.W.2d 286, 289 (Tex. 1997). A trial court does not abuse its discretion if there is some evi dence of a substantive and probative character to support the de cision. Von Hohn, 260 S.W.3d at 640. When no findings of fact or conclusions of law are filed or requested, it is implied that the trial court made all the necessary findings to support ,its judg ment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the trial court's implied findings are supported by the evidence, an appellate court must uphold the judgment on any theory of law ap plicable to the case. See Wells v. Wells, 251 S.W.3d 834, 838-39 Tex. App.-Eastland 2008, no pet.).

On May 4, 2015j the trial court held a final hearing on the divorce. (RR2). During this hearing, Appellant testified that she *10 wanted a no fault divorce granted. (RR2:6). She also testified that the parties were married on November 13, 2010. (RR2:5). Appellant further testified that the house ion Nolan Street caught fire in February 2012. (RR2:7). Claculating the time between the marriage and the fire, without consideration of the amount of time the part- ! ' ies lived together before marriage, indicates the parties lived

together on Nolan Street as husband and wife for at least one year and three months. j

When asked what she did with the insurance check, Appellant responded "I paid off the remaining mortgage balance off on that, and then purchased a new home and furniture." (RR2:7). This was a clear indication to the trial court that Appellant did not com pletely "own" the house on Nolan Street when she married Appellee, that Appellee was also vested in the house. Appellee testified that when Appellant's ex-husband left, the husband took everthing out of the house on Nolan Street. (RR2:13). Appellee refurnished the house on Nolan Street, purchasing TVs, furniture and even dishes. (RR2:13). In addition, Appellee testified that there was $40,000 owed on the house on Nolan Street. (RR2:15). Appellant never con tradicted Appellee's assertion, which indicates that Appellee did make a contribution to the house on Nolan Street. On cross-exam ination Appellant testified that the check from the insurance set tlement was issued in both parties names and that the proceeds from that check is what bought the property at 78 Florey Lake, Kil gore, Texas. (RR2:10). Appellant further testified that said home was bought during the marriage. (RR3:19-20).

For the foregoing reasons, Appellee respectfully asserts that Appellant's first issue should be overruled.

APPELLEE'S REPLY TO APPELLANT'S SECOND ISSUE Appellant's Contention

"The trial judge abused his discretion in the division of the marital estate of the parties." (Appellant's Brief at 9).

Appellee's Reply

The trial judge did not abuse his discretion in the division of the marital estate of the parties.

Argument And Authorities

Once again, Appellant is dissatisfied with the division of the community property. After having been, awarded 100% of the house at Florey Lake, the Twelfth Court of Appeals reversed the trial court's judgment based on the trial court's abuse of discretion in the division of the property. :(CR1:26). On remand, and after a i hearing, the trial court found that the property at 78 Florey Lake

was community property and awarded each party equal one-half inter est. (RR2; CRl: 30) .Appellant then filed a motion to reopen evi- i dence and amended her petition for divorce, this time claiming i

there was fault in the breakup of the marriage. (CRl:32-33; CR1:56- 58). The trial court then ruled that the house and property at 78 Florey Lake was still community property, but due to a finding of fault in the breakup of the marriage the court awarded 80% of the house to Appellant and 20% to Appellee. (CR1:63). Still not satis fied, Appellant now claims an abuse of discretion by the judge.

While Appellee disagrees with the division of the community property, he asserts that the trial judge did not abuse his dis- *12 cretion. i

The argument and authorities cited in the II. subsection of Issue One is incorporated hereto and applies to this issue also.

For these reasons, Appellant 's second issue should be over- ruled.

PRAYER I For the reasons stated herein, Appellee prays that the trial court's judgment be in all things affirmed.

Dated: November 13, 2015. Respectfully submitted,

BARNW SAMUEL BRADSHAW APPELLEE TDCJ No. 01942978 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886 CERTIFICATE OF COMPLIANCE i

I hereby certify that this brief contains 193 lines of text. BARNEY SAMUEL BRADSHAW i

CERTIFICATE IOF SERVICE I hereby certify that a true and correct copy of the fore going brief has been served by placing same in the United States Mail, postage prepaid, on the 13th day of November, 2015, addressed to Appellant's Counsel at:

Ebb B. Mobley

Attorney At Law

P.O. Box 2309

Longview, Texas 75606

Js^^l^lm^Js^jj—-

BARNEY SAMUEL BRADSHAW