DEFAULT ORDER COMPELLING ENTRY OF QUALIFIED DOMESTIC RELATIONS ORDER

On June 30, 2015 the Court considered the Petition to Compel Entry of Qualified Domestic Relations Order, filed by Lyn Louise Wallin (f/k/a Adcock) Petitioner in the above numbered and styled cause.

Petitioner, Lyn Louise Wallin, appeared in person and through attorney of record, Briscoe Cain, and announced ready.

Respondent, Aaron Wayne Adcock, having been served with citation of the Petition and given due notice of the time and place of the hearing failed to appear and made default.

A record of testimony was made by the court reporter of the Court.

All matters of fact and law were submitted to the Court.

The Court is of the opinion and finds that:

1. This Court has continuing jurisdiction to hear this case as a result of prior proceedings.
2. That, Petitioner was awarded 50% of Respondent, Aaron Wayne Adcock‘s retirement benefits in 401K arising out of Aaron Wayne Adcock‘s employment with UPS from September 6, 2008 to December 23, 2013 in the Final Decree of Divorce between the parties.
3. That, pursuant to the Final Decree of Divorce, the parties were order to split the cost of preparation of the QDRO, with each party to pay half, respectively.

IT IS THEREFORE ORDERED that the Petition to Compel Entry of Qualified Domestic Relations Order is GRANTED and that IT IS HEREBY ORDERED:

IT IS ORDERED that the parties shall have the QDRO drafted by Richard Johnston in Spring, Texas of QDRO Services, LLC, and that the parties submit necessary documents to QDRO Services by 5:00 PM on Monday, July 6, 2015.

IT IS FURTHER ORDERED that the parties split (50/50) the costs associated with preparation of the QDRO by QDRO Services, LLC and that Respondent, Aaron Wayne Adcock shall pay his share of said costs to Petitioner, Lyn Louise Wallin, on or before August 1, 2015.

IT IS FURTHER ORDERED that Petitioner, Lyn Louise Wallin is awarded a judgment for attorney‘s fees in the amount of $1,200.00 (twelve hundred) and it is ordered that Respondent, Aaron Wayne Adcock shall pay $1,200.00 in attorney‘s fees, expenses and costs directly to Petitioner‘s attorney, Briscoe Cain, on or before August 1, 2015.

SIGNED on July 17, 2015.

APPROVED AS TO FORM:

THE CAIN LAW FIRM
2318 Center Street, Suite 310
DEER PARK, TX 77536
Tel: (832) 647-5117
Fax: (281) 715-4327

By:
Briscoe Cain
State Bar No. 24073602
cainfirm@gmail.com
Attorney for Petitioner

MOTION FOR NEW TRIAL

This Motion for New Trial is brought by Aaron Wayne Adcock, Respondent, who shows in support:

1. On July 17, 2015 a judgment was signed by this Court in this case.
2. A new trial should be granted to Movant because the evidence is legally and factually insufficient to support this Court‘s judgment. Specifically, the evidence is legally and factually insufficient to support this Court‘s judgment based on the following findings of fact:
   1. That, Petitioner was awarded 50% of Respondent, Aaron Wayne Adcock‘s retirement benefits in 401K arising out of Aaron Wayne Adcock‘s employment with UPS from September 6, 2008 to December 23, 2013 in the Final Decree of Divorce between the parties. (See pg. 1, Exhibit 7, Default Order Compelling Entry of Qualified Domestic Relations Order).

IT IS ORDERED that the parties shall have the QDRO drafted by Richard Johnston in Spring, Texas of QDRO Services, LLC, and that the parties submit necessary documents to QDRO Services by 5:00 PM on Monday, July 6, 2015. (See pg. 2, Exhibit 7, Default Order Compelling Entry of Qualified Domestic Relations Order).

IT IS FURTHER ORDERED that the parties split (50/50) the costs associated with preparation of the QDRO by QDRO Services, LLC and that Respondent, Aaron Wayne Adcock shall pay his share of said cost to Petitioner, Lyn Louise Wallin, on or before August 1, 2015.

IT IS FURTHER ORDERED that Petitioner, Lyn Louise Wallin is awarded a judgment for attorney‘s fees in the amount of $1,200.00 (twelve hundred) and it is ordered that Respondent, Aaron Wayne Adcock shall pay $1,200.00 in attorney‘s fees, expenses and cost directly to Petitioner‘s attorney, Briscoe Cain, on or before August 1, 2015. (See pg. 2, Exhibit 7, Default Order Compelling Entry of Qualified Domestic Relations Order).

3. The Respondent doesn‘t dispute that the Petitioner was awarded 50% of the Respondent‘s 401K arising out of the Respondent‘s employment with UPS or that the Respondent was ordered to pay 50% of the cost to prepare the QDRO. The Respondent argues that the Final Decree of Divorce signed by this court on February 6, 2014 did not order Aaron Wayne Adcock to be responsible for preparing or facilitating the preparation of a Qualified Domestic Relations Order (hereafter QDRO) for the benefit of the Petitioner. (See Exhibit 3, Final Decree of Divorce).

Since, there is no underlying order requiring that the Respondent‘s attorney, Shirley A. Mitchell, prepared the Petitioner‘s Qualified Domestic Relations Orders, as alleged in the Petitioner‘s pleadings or any order stating that Aaron Wayne Adcock was ordered to prepare or facilitate the preparation of the QDRO for the Petitioner. (See Exhibit 2, Petition to Compel Entry of Qualified Domestic Relations Order). Therefore, as a matter of law this court can‘t compel Aaron Wayne Adcock to enter a Qualified Domestic Relations Order on the behalf of the Petitioner because there is no provision in the Final Decree of Divorce. Further, at no time did the Petitioner‘s filing of her Petition to Compel Entry of QDRO was there an agreement or payment request made to Aaron Wayne Adcock by the Petitioner for payment of 50% of any cost associated with the preparation of the QDRO for UPS. Additionally, the Petitioner requested that my attorney, Shirley A. Mitchell, prepare the QDRO documents then refused to pay the amount requested. I have already paid the requested fees to Shirley A. Mitchell for the preparation of the UPS and Air Force retirement benefits.

Under the Texas Rules of Civil Procedure, the court can only compel a party to perform (Rule 215) or comply with a specific act (Rule 198) if there is an underlying order or discovery request. The facts alleged in the Petitioner‘s pleadings do not create a liability to the Respondent despite the Respondent‘s failure to appear at the hearing. (See Exhibit 7, Default Order Compelling Entry of Qualified Domestic Relations Order).

Finally, the Petitioner‘s pleadings are defective on their face and contrary to Texas statutes. The Petitioner has brought the wrong cause of action before and cannot prevail in a contempt actions such as a Petition Compelling Entry of QDRO. Since a contempt action is not proper under the circumstances alleged by the Petitioner a granting of attorney fees, cost and directing the Respondent to perform specific acts not addressed in the Final Decree of Divorce or the Petitioner‘s pleadings is an abuse of discretion by the court.

4. The Respondent did not actual notice of the trial setting/hearing until after the Default Judgment was entered by the court. (See the attached Supporting Declaration of Aaron Adcock filed with this Motion for New Trial.).
5. The above errors amounted to such a denial of Movant‘s rights as was reasonably calculated to cause and probably did cause rendition of an improper judgment in the case. Tex. R. App. P. 44.1(a)(1).
6. Aaron Wayne Adcock has a meritorious defense to the cause of action alleged in this case. (See attached Supporting Declaration and argument herein).
7. The granting of a new trial would not injure Lyn Louise Wallin.
8. Justice will not be properly served unless a new trial is granted.

Aaron Wayne Adcock prays that the Court set aside the judgment signed on July 17, 2015 and grant a new trial.

Respectfully submitted,

Shirley A. Mitchell, P.C.
1001 Texas Ave. Suite 1400
Houston, TX 77002
Tel: (713) 328-6812
Fax: (281) 377-5899

By: /s/ Shirley A. Mitchell
Shirley A. Mitchell
State Bar No. 24041501
sm@shirleymitchelllaw.com
Attorney for Lyn Louise Adcock

Notice of Hearing

The above motion is set for hearing on _______________ at _____. m. in 247TH Judicial District, Harris County, Texas.

SIGNED on _______________.

Certificate of Service

I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on August 15, 2015.

/s/Shirley A. Mitchell
Shirley A. Mitchell
Attorney for Aaron Wayne Adcock

NOTICE OF APPEAL

This Notice of Appeal is filed by Aaron Wayne Adcock, Respondent, a party to this proceeding who seeks to alter the trial court‘s judgment or other appealable order.

1. The trial court, cause number, and style of this case are as shown in the caption above.
2. The judgment or order appealed from was signed on July 17, 2015.
3. Aaron Wayne Adcock desires to appeal from all portions of the judgment.
4. This appeal is being taken to either the First or Fourteenth Court of Appeals.
5. This notice is being filed by Aaron Wayne Adcock.
6. This is an accelerated appeal. This is not a parental termination case or a child protection case.

Respectfully submitted,

Shirley A. Mitchell, P.C.
1001 Texas Ave.
Suite 1400
Houston, TX 77002
Tel: (713) 328-6812
Fax: (281) 377-5899

By:
Shirley A. Mitchell
State Bar No. 24041501
sm@shirleymitchelllaw.com
Attorney for Aaron Wayne Adcock

Certificate of Service

I certify that a true copy of this Notice of Appeal was served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party‘s lead counsel as follows:

Party: Aaron Wayne Adcock

Lead attorney: Briscoe Cain

Address of service: 2318 Center St., Suite 310, Deer Park, TX 77536

Method of service: by fax at 281-715-4327

Date of service: October 8, 2015