Case Information
*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 7/20/2015 8:17:21 AM JEFFREY D. KYLE Clerk No. 03-15-00008-CV THIRD COURT OF APPEALS 7/17/2015 11:06:21 AM JEFFREY D. KYLE AUSTIN, TEXAS 03-15-00008-CV *1 ACCEPTED CLERK IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS PAUL D. SIMMONS, Appellant
V. TERESA A. SIMMONS, Appellee
ON APPEAL FROM THE 119 TH JUDICIAL DISTRICT COURT OF
OF TOM GREEN COUNTY, TEXAS CAUSE NO. B-13-0232-F BRIEF OF APPELLANT Melvin Gray
State Bar Number 08328000
Gray & Brigman, PLLC
206 W. College Ave.
San Angelo, Texas 76903
Tel: (325) 653-4594
Fax: (325) 657-0039
Email: sgreen@grayandbrigman.com
Attorney on Appeal
for Appellant
ORAL ARGUMENT REQUESTED *2 No. 03-15-00008-CV IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS PAUL D. SIMMONS, Appellant
V. TERESA A. SIMMONS, Appellee
ON APPEAL FROM THE 119 TH JUDICIAL DISTRICT COURT OF
OF TOM GREEN COUNTY, TEXAS CAUSE NO. B-13-0232-F BRIEF OF APPELLANT
TO THE HONORABLE COURT OF APPEALS:
Appellant Paul D. Simmons respectfully files this Brief.
ii *3 Identity of Parties and Counsel The following is a complete list of all parties, as well as the names and
addresses, and emails (if known) of all counsel.
Petitioner/Appellee: Teresa A. Simmons
Respondent/Appellant: Paul D. Simmons
Counsel for Petitioner/Appellee
at Trial and on Appeal: Kirk Hawkins Attorney at Law 224 West Beauregard Ste. 303 San Angelo, Texas 76903 Counsel for Respondent/
Appellant at Trial and
on Appeal: Melvin Gray Gray & Brigman, PLLC 206 W. College Ave.
San Angelo, Texas 76903 sgreen@grayandbrigman.com Trial Court: The Honorable Ben Woodward 119 th Judicial District Court Tom Green County, Texas iii
Record References The Clerk’s Record includes all of the relevant pleadings and orders filed with
the trial court and clerk. The Clerk’s Record contains one volume. References in this
Brief to the Clerk’s Record are by volume and page number, indicated as “CR 1:__.”
The Reporter’s Record includes the transcript of the bench trial held on July
22, 2014. The Reporter’s Record contains three volumes. References to the
Reporter’s Record are by volume and page number, indicated as “RR __:__.”
The Reporter’s Record also includes all of the parties’ exhibits submitted to the
trial court and admitted into evidence during the bench trial. Copies of all such
exhibits are included in Volume 3 of the Reporter’s Record; therefore, references to
the parties’ exhibits are indicated as “RR 3:PX#__” or “RR 3:RX#__.”
References to the trial court’s Findings of Fact are indicated as “FF#__.”
References to the trial court’s Conclusions of Law are indicated as “CL#__.”
Party References Paul D. Simmons, Appellant, shall be referred to as “Paul.” Teresa A.
Simmons, Appellee, shall be referred to as “Teresa.”
Request for Oral Argument Pursuant to T EX . R. A PP . P. 39, Simmons hereby requests oral argument .
iv *5 Table of Contents Identity of the Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Record References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Party References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Request for Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi
Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Issue No. 1: Teresa’s enforcement action was subject to the
applicable statute of limitations. Paul properly raised this defense in his pleadings and during the bench trial. Did the trial court abuse its discretion by enforcing the parties’ 1987 divorce decree and awarding Teresa $51,635.60 when her enforcement action was barred by this affirmative defense?
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
M The Parties’ Marital History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
M The Parties’ Settlement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 1
M The Division of Paul’s Retirement Benefits . . . . . . . . . . . . . . . . . . . . 4
M Conoco’s Payment of Paul’s Retirement Benefits . . . . . . . . . . . . . . . 5
M Teresa’s Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
v
M Findings of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
! Legal Sufficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ! Factual Sufficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 M Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
M (Disputed) Trial Court’s Findings of Fact and
Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ! (Disputed) Findings of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ! (Disputed) Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . 13 M Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Issues No. 1 Re-Stated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
M Two-Year Statute of Limitations: T EX . F AM . C ODE § 9.003(b) . . . . . . . . . . . . . . . . . . . . . 15 M Discovery Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ! Inherently Undiscoverable . . . . . . . . . . . . . . . . . . . . . . 17 ! Pleading Requirement . . . . . . . . . . . . . . . . . . . . . . . . . 18 ! Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ! Reasonable Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . 19 M Accrual of Teresa’s Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 M Inapplicability of Discovery Rule . . . . . . . . . . . . . . . . . . . . . 20 ! Waiver of Discovery Rule . . . . . . . . . . . . . . . . . . . . . . 20 ! No Inherently Undiscoverable Injury . . . . . . . . . . . . . 22 • No Reasonable Diligence . . . . . . . . . . . . . . . . . 23 • Teresa’s Specialized Knowledge . . . . . . . . . . . . 27 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
vi
Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. Judgement dated September 15, 2014.
2. Findings of Fact and Conclusions of Law dated October 22, 2014. 3. Decree of Dissolution of Marriage and Child Custody, Support and Property Settlement Agreement file-stamped June 1, 1987 vii
Index of Authorities Cases
Anderson v. City of Seven Points , 806 S.W.2d 791 (Tex. 1991) . . . . . . . . . . . . . . 9
Austin Indep. Sch. Dist. v. Lofters , No. 03-14-00071-CV;
2015 T EX . A PP . L EXIS 3115 (Tex. App.–Austin, Apr. 1, 2015,
pet. filed) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17
BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789 (Tex. 2002) . . . . . 12
Bates v. Tesar , 81 S.W.3d 441 (Tex. App.–El Paso 2002, no pet.) . . . . . . . . . . . 11
Cain v. Bain , 709 S.W.2d 175 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Cire v. Cummings , 134 S.W.3d 835 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 13
City of Austin v. Whittington , 384 S.W.3d 766 (Tex. 2012) . . . . . . . . . . . . . . . . 11
Coca-Cola Co. v. Harmar Bottling Co. , 218 S.W.3d 671 (Tex. 2006) . . . . . . . . 15
Conoco, Inc. v. Amarillo Nat’l Bank , 14 S.W.3d 325 (Tex. App.–Amarillo
2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238 (Tex. 1985),
cert. denied , 476 U.S. 1159, 106 S. Ct. 2279, 90 L.Ed.2d 721 (1986) . . . 14
HECI Exploration Co. v. Neel , 982 S.W.2d 881 (Tex. 1998) . . . . . . . . . . . . . . . 19
Heritage Resources, Inc. v. Hill , 104 S.W.3d 612 (Tex. App.–El Paso 2003,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12
Hitzelberger v. Samedon Oil Corp. , 948 S.W.2d 497 (Tex. App.-Waco 1997,
writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
viii
In re Am. Nat’l Cnty Mut. Ins. Co. , 384 S.W.3d 429 (Tex. App.–Austin
2012, original proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
In the Estate of Melchior , 365 S.W.3d 794 (Tex. App.–San Antonio 2012,
pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
In the Interest of M.W. , 959 S.W.2d 661 (Tex. App.–Tyler 1997,
writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Leibman v. Grand , 981 S.W.2d 426 (Tex. App.-El Paso 1998, no pet.) . . . . 10-11
Mayorga v. Mayorga , No. 03-13-00787-CV; 2015 T EX . A PP . L EXIS 4713
(Tex. App.–Austin, May 8, 2014, no pet.) (mem. op.) . . . . . . . . . . . . . . . . 13
Murray v. Murray , 276 S.W.3d 128 (Tex. App.–Fort Worth 2008,
pet. dism’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Ortiz v. Jones , 917 S.W.2d 770 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Pitman v. Lightfoot , 937 S.W.2d 496 (Tex. App.–San Antonio 1992,
writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20
Plas-Tex., Inc. v. U.S. Steel Corp ., 772 S.W.2d 442 (Tex. 1989) . . . . . . . . . . . . 10
Point Lookout West, Inc. v. Whorton , 742 S.W.2d 277 (Tex. 1987) . . . . . . . . . 10
Proctor v. White , 172 S.W.3d 649 (Tex. App.–Eastland 2005, no pet.) . . . . . . . 18
Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211 (Tex. 2003) . . . . 16
Sixth RMA Partners, L.P. v. Sibley , 111 S.W.3d 46 (Tex. 2003) . . . . . . . . . . . . . 9
Texas Health Presbyterian Hosp. Dallas v. Burch , No. 05-14-00665-CV,
2015 T EX . A PP . L EXIS 625 (Tex., Jan. 22, 2015) . . . . . . . . . . . . . . . . . . . . 17
Tipton v. Brock , 431 S.W.3d 673 (Tex. App.–El Paso 2014, pet. denied) . . . . . 19
ix
Treuil v. Treuil , 311 S.W.3d 114 (Tex. App.–Beaumont 2010,
no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18,19-20,23
Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328 (Tex. 1998),
cert. denied , 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999) . . . 10
Urbanczyk v. Urbanczyk , No. 07-07-0077-CV; 2009 T EX . A PP . L EXIS 587
(Tex. App.–Amarillo, Jan. 29, 2009, no pet.) (mem. op.) . . . . . . . . . . . . . 24
Wagner & Brown, Ltd v. Horwood , 58 S.W.3d 732 (Tex. 2001) . . . . 16-17,19,27
Westech Eng’g, Inc. v. Clearwater Constructors, Inc. , 835 S.W.2d 190
(Tex. App.–Austin 1992, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10
Woods v. William M. Mercer, Inc. , 769 S.W.2d 515 (Tex. 1988) . . . . . . . . 18-21
Statutes
T EX . F AM . C ODE A NN . § 9.003(b) (L EXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 15
Rules
T EX . R. A PP . P. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
x *11 Statement of the Case Nature of the Case: This family law suit arose out of an enforcement action
filed by Teresa seeking to enforce the parties’ property division from a 1987 divorce. (CR 1:7-22,35-37).
Course of Proceedings: On or about March 28, 2013, Teresa registered the parties’
1987 New Mexico divorce decree in Texas. (CR 1:7-22). On April 4, 2013, Teresa provided notice to Paul of the registration of a foreign decree. (CR 1:23-24). On or about April 22, 2013, Paul filed a response in which he contested such registration, asserted various affirmative defenses, and requested a hearing. (CR 1:25-26). On or about April 3, 2014, Teresa filed a Motion for Enforcement of Order seeking to enforce a specific provision of the parties’ divorce decree pertaining to the division of Paul’s retirement pension. (CR 1:35-37).
A bench trial was held on July 22, 2014. (RR 1: 1). At the conclusion of the bench trial, the trial court took the matter under consideration. (RR 2:30). On or about August 20, 2014, the trial court issued a letter ruling, and on September 15, 2014, the trial court entered a written judgment denying all of Paul’s affirmative defenses, granting Teresa’s request to enforce the specific property provision pertaining to Paul’s retirement benefits, and awarding Teresa a total money judgment of $51,635.60. (CR 1:41,44-45) (Appendix 1).
On or about October 3, 2014, Paul timely requested that the trial court enter findings of fact and conclusions of law. (CR 1:51-52). On or about October 22, 2014, the trial court entered its written findings and conclusions. (CR 1:52-53) (Appendix 2). On or about December 12, 2014, Paul timely filed his Notice of Appeal. (CR 1:57-58). xi *12 The Honorable Ben Woodward, 119 th Judicial District
Trial Court:
Court, Tom Green County, Texas.
Trial Court Disposition: Judgment dated September 15, 2014. (CR 1:44-45)
(Appendix 1). The trial court’s judgment awarded Teresa $48,757.60 in actual damages, $278.00 in court costs, and $2,600.00 in attorney’s fees. ( Id .).
Parties: Petitioner/Appellee : Teresa A. Simmons
Respondent/Appellant : Paul D. Simmons xii
Issue Presented Issue No. 1: Teresa’s enforcement action was subject to the applicable
statute of limitations. Paul properly raised this defense in his pleadings and during the bench trial. Did the trial court abuse its discretion by enforcing the parties’ 1987 divorce decree and awarding Teresa $51,635.60 when her enforcement action was barred by this affirmative defense? xiii
Statement of Facts M The Parties’ Marital History.
Paul and Teresa were married on August 22, 1969. (RR 2:16). They were both
nineteen years old when they got married. (RR 3:PX#5). During the course of their
marriage, they had two children–a son and a daughter. (RR 2:18; 3:PX#5). After
being married for approximately eighteen years, the couple decided to get divorced.
(RR 2:16).
Paul and Teresa’s divorce was final on June 1, 1987, and a written Decree of
Dissolution of Marriage, (the “Divorce Decree”), was entered on that same day in
Eddy County, New Mexico. (CR 1:8-10; RR 2:16; 3:PX#4; FF#1) (Appendices 2-3).
At the time of the parties’ divorce, their son was approximately fourteen or fifteen
years old and their daughter was approximately nine or ten years old. (RR 2:18).
M The Parties’ Settlement Agreement.
Paul and Teresa resolved all issues pertaining to their divorce through the
execution of a Child Custody, Support and Property Settlement Agreement, (the
“Settlement Agreement”). (CR 1:11-21; RR 2:16-17; 3:PX#5) (Appendix 3). The
Settlement Agreement was approved by the New Mexico trial court and properly
incorporated into the Divorce Decree. (CR 1:8-10; RR 3:PX#4) (Appendix 3). Under
the terms of the Settlement Agreement, Paul retained primary custody of the two
children during the school year, and Teresa had custody of the children during their
summer vacation. (CR 1:12; RR 2:18; 3:PX#5) (Appendix 3).
As to child support, Paul agreed to pay Teresa $100.00 per month for every
thirty days she had physical custody of the children. (CR 1:13; RR 3:PX#5)
(Appendix 3). The parties also agreed that Teresa would not be required to pay any
child support while she attended law school. ( Id .). Additionally, the parties agreed
that the New Mexico trial court would retain jurisdiction to modify the custody or
child support provisions included in the Settlement Agreement once Teresa graduated
from law school. ( Id .).
It appears the parties never petitioned the trial court to modify these custody
or child support provisions. Paul testified Teresa never paid him any child support
and that he had provided the total support for the two children. (RR 2:11). In
contrast, Teresa testified that their daughter came to live with her at around the age
of fifteen years. (RR 2:20). She further testified that during the time the child was
living with her, Paul maintained insurance on their daughter but provided no other
financial support for the child during this time period. ( Id .). It was undisputed that
by the day of trial, both of the children were over twenty-one years of age. (RR 2:11).
Under the terms of the Settlement Agreement, Paul was also required to pay
$100.00 each month towards Teresa’s credit card purchases for gas and automobile
maintenance for a period of eighteen months, that is, until December 31, 1988. ( Id .).
Regarding the division of the parties’ property, Teresa testified that the only
property she actually got out of the divorce was a car, her clothing, jewelry, and some
patio furniture. (RR 2:19). Teresa testified that she basically “left” Paul all the
property, including her “grandmother’s dishes.” ( Id. ). Her trial testimony in this
regard was misleading, if not entirely false.
A careful review of the terms of the Settlement Agreement reveals Teresa was
awarded a substantial amount of the parties’ community property, including but not
limited to, the following: two cars, jewelry, a computer, two beds, two desks, a
stereo, two guns, lamps, a dining table and four chairs, a TV, a microwave, and patio
furniture. (CR 1:14; RR 3:PX#5) (Appendix 3). Additionally, under the terms of the
Settlement Agreement, Teresa was specifically awarded her grandmother’s dishes.
( Id .). Teresa was also awarded $9,000.00 which constituted cash monies advanced
for her school expenses and proceeds from her teacher retirement benefits. ( Id .).
Undisputedly, the parties owned a home at the time of their divorce. (RR
1:19). Under the terms of the Settlement Agreement, Teresa was awarded no equity
in this home. (CR 1:14,16; RR 3:PX#5) (Appendix 3). However, it was also
undisputed that under the terms of the Settlement Agreement, Paul became solely
responsible for payment of the $82,200.00 mortgage that was attached to the parties’
home, along with approximately $35,000.00 in miscellaneous debt that the parties had
incurred as of the date of their divorce. (CR 1:16-17; RR 3:PX#5). In contrast,
pursuant to the terms of the Settlement Agreement, Teresa did not assume
responsibility for payment of any of the $117,000.00 community property debt that
the parties had accumulated during their eighteen year long marriage. ( Id .).
Teresa testified that she left the majority of the furniture in the house because
she did not want “the kids to just feel turned upside-down by everything.” (RR 2:19).
Teresa’s choice not to take possession of the property she was awarded under the
Divorce Decree for the sake of her children is a far cry from her representation that
she “left” Paul basically all the property in the divorce. Rather, the evidence
introduced at trial reveals the final property division in the parties’ 1987 divorce was
more than fair to Teresa.
M The Division of Paul’s Retirement Benefits.
It was also undisputed at trial that under the terms of the Settlement
Agreement, Teresa was awarded a portion of Paul’s retirement benefits. (CR 1:14;
RR 2:17; 3:PX#5; FF#1) (Appendices 2-3). Specifically, this provision of the
Settlement Agreement reads as follows:
(6) Division of Community Property. The parties community
property shall be divided as follows:
A. Wife shall have set over to her as her sole and separate property:
. . . 23. A portion of Husband’s retirement, pension, thrift, profit sharing and other employee benefits acquired through Husband’s
employment with Conoco, to be paid if, as, and when received by
Husband. Wife’s portion shall be one-half times a fraction (the
numerator of which shall be the number of years the parties were
married during Husband’s employment with Conoco and the
denominator of which shall be the number of years Husband or his
employer, or both, contributed to the plan or benefit) times the amount
of the benefit received by Husband.
(CR 1:14; RR 3:PX#5; FF#1) (Appendices 2-3). There was no evidence introduced
at trial that a Qualified Domestic Relations Order, (“QDRO”), to this effect was ever
entered by any trial court or that Conoco was ever placed on notice of this particular
provision of the Settlement Agreement.
M Conoco’s Payment of Paul’s Retirement Benefits.
Paul testified he began working for Conoco on February 12, 1979. (RR 1:6;
FF#2) (Appendix 2). Over the next twenty-six years, Paul continued his employment
with Conoco. (RR 1:8). Paul testified that on March 26, 2004, his employment with
Conoco ended. (RR 1:8; FF#2) (Appendix 2).
Paul also testified that on November 1, 2004, he cashed out his retirement
benefits from Conoco. (RR 1:7). A copy of a check dated November 1, 2004, from
Arvest Trust Company, NA, the paying agent for ConocoPhillips Retirement
Benefits, was introduced into evidence at trial and reflected that Paul received
$295,500.61 in retirement benefits from Conoco. (RR 2:8; 3:PX#2; FF#3) (Appendix
2).
Paul testified he used the money to pay off a “bunch of bills and debt and
everything else.” [1] (RR 2:8). He further testified that as of the day of trial, these cash
monies were “gone” and he did not have them any more. ( Id .). It was undisputed at
trial that Paul did not forward Teresa her share of the money he received when he
cashed out his retirement benefits with Conoco. ( Id .).
M Teresa’s Enforcement Action.
Approximately twenty-six years after the parties finalized their divorce, and
approximately eight and a half years after Paul cashed in his retirement benefits with
Conoco, Teresa filed a Petition for Enforcement of Order, (“Petition for
Enforcement”), seeking to enforce the Divorce Decree. (CR 1:35-37; FF#10)
(Appendix 2). Paul asserted various affirmative defenses to Teresa’s enforcement
action, including but not limited to, the statute of limitations and laches. (CR 1:25-
26; FF#9) (Appendix 2).
*20 A bench trial was held on July 22, 2014. (RR 1:14). Paul and Teresa were the
only two witnesses at the bench trial. (RR 2:5,15). At the conclusion of the bench
trial, the trial court took the matter under advisement. (RR 2:30).
On August 20, 2014—approximately twenty-seven years after the parties’
divorce was final—the trial court issued a letter ruling denying all of Paul’s
affirmative defenses and awarding Teresa $48,757.60 in actual damages, $2,600.00
in attorney’s fees, and costs of court. (CR 1:41; CL#6) (Appendix 2). On September
15, 2014, the trial court entered a written judgment awarding Teresa a total sum of
$51,635.60, with postjudgment interest accruing at the rate of six percent. (CR 1:44-
45; CL#6) (Appendices 1-2). It is from this judgment that Paul now appeals.
Summary of the Argument Teresa waited approximately twenty-six years to seek enforcement of the
Divorce Decree’s provisions awarding her a portion of Paul’s retirement benefits.
Paul properly asserted that the statue of limitations barred Teresa’s enforcement
action. Teresa’s cause of action accrued on November 1, 2004 and was barred after
November 1, 2006.
Teresa failed to specifically plead the applicability of the discovery rule prior
to trial. She also failed to prove her injury in this case was inherently undiscoverable,
notwithstanding reasonable diligence. The trial court thus erred in concluding the
discovery rule tolled the applicable two-year statute of limitations found in T EX . F AM .
C ODE § 9.003(b). Accordingly, the trial court abused its discretion in enforcing the
provision of the Divorce Decree in regards to the division of Paul’s retirement
benefits.
Standards of Review M Findings of Fact.
A trial court’s findings of fact have the same force and dignity as a jury’s
verdict. Anderson v. City of Seven Points , 806 S.W.2d 791, 794 (Tex. 1991). An
appellate court reviews a trial court’s findings of fact under the same legal and factual
sufficiency standard used to support a jury’s verdict. Id . In an appeal from a bench
trial, an attack on the sufficiency of the evidence must be directed at specific findings
of fact, rather than at the judgment as a whole. In the Interest of M.W. , 959 S.W.2d
661, 664 (Tex. App.–Tyler 1997, writ denied). “Generally, a finding of fact not
challenged in a point of error on appeal is binding on the appellate court.” Id .
! Legal Sufficiency .
If a party challenges the legal sufficiency on an issue which he did not have the
burden of proof, he must demonstrate on appeal that no evidence supports the adverse
ruling. Westech Eng’g, Inc. v. Clearwater Constructors, Inc. , 835 S.W.2d 190, 196
(Tex. App.–Austin 1992, no writ). When findings are challenged for legal
sufficiency, an appellate court should “view the evidence in a light that tends to
support the finding of the disputed fact and disregard all evidence and inferences to
the contrary.” Sixth RMA Partners, L.P. v. Sibley , 111 S.W.3d 46, 52 (Tex. 2003).
In other words, an appellate court considers the evidence in the light most favorable
to the challenged finding under a legal sufficiency review. Point Lookout West, Inc.
v. Whorton , 742 S.W.2d 277, 279 (Tex. 1987).
A legal sufficiency challenge will be sustained when:
(1) the record discloses a complete absence of evidence of a vital
fact;
(2) the court is barred by rules of law or rules of evidence from
giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere
scintilla; or
(4) the evidence establishes conclusively the opposite of a vital fact.
Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998), cert.
denied , 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). “If more than a
scintilla of evidence exists to support the questioned finding, the ‘no evidence’ point
fails.” Leibman v. Grand , 981 S.W.2d 426, 429 (Tex. App.-El Paso 1998, no pet.).
! Factual Sufficiency .
When a party without the burden of proof challenges the factual sufficiency of
the evidence to support an adverse finding, the party must demonstrate that there is
insufficient evidence to support the adverse finding. Westech , 835 S.W.2d at 196.
Under a factual sufficiency review, an appellate considers both the evidence that
supports the finding and the evidence that is contrary to the finding. Plas-Tex., Inc.
v. U.S. Steel Corp ., 772 S.W.2d 442, 445 (Tex. 1989). “In reviewing a factual
sufficiency point, the court of appeals must weigh all of the evidence in the record.”
Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996). Such evidence includes “both the
evidence which tends to prove the existence of a vital fact as well as evidence which
tends to disprove its existence.” Leibman , 981 S.W.2d at 429.
The finding should be sustained if there is some probative evidence to support
it and provided it is not against the great weight and preponderance of the evidence.
Id . ; Ortiz , 917 S.W.2d at 772. An appellate court should reverse the judgment and
order a new trial if the trial court’s fact finding was so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust. Cain v. Bain , 709 S.W.2d
175, 176 (Tex. 1986). A finding which “shocks the conscience” or that is “manifestly
unjust” will be overturned on appeal. Leibman , 981 S.W.2d at 429.
M Conclusions of Law.
Conclusions are reviewed de novo , and an appellate court is free to draw its
own legal conclusions. City of Austin v. Whittington , 384 S.W.3d 766, 778 (Tex.
2012). The legal conclusions of the trial court are therefore not binding upon an
appellate court. Bates v. Tesar , 81 S.W.3d 441, 422 (Tex. App.–El Paso 2002, no
pet.).
The standard of review for legal conclusions is whether they are correct.
Heritage Resources, Inc. v. Hill , 104 S.W.3d 612, 621 (Tex. App.–El Paso 2003, no
pet.). In other words, an appellate court independently evaluates conclusions of law
to determine their correctness when they are attacked as a matter of law. Id .
An appellate court should follow a trial court’s conclusion of law unless it is
erroneous as a matter of law. Hitzelberger v. Samedon Oil Corp. , 948 S.W.2d 497,
503 (Tex. App.-Waco 1997, writ denied). If, however, the reviewing court
determines that a conclusion of law is erroneous, but the trial court rendered the
proper judgment, the erroneous conclusion of law does not require reversal. BMC
Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002).
M (Disputed) Trial Court’s Findings of Fact and Conclusions of Law.
In the case at bar, Paul timely requested the trial court to enter findings of fact
and conclusions of law. (CR 1:50-51). In response to this request, the trial court
entered written Findings of Fact and Conclusions of Law on October 22, 2014. (CR
1:52-53) (Appendix 2). On appeal, the following factual findings and legal
conclusions are specifically disputed:
! (Disputed) Findings of Fact .
FF#4 Defendant used the retirement distribution to pay bills, including a debt payable to Wells Fargo that was secured by a lien on Defendant’s homestead. (CR 1:52) (Appendix 2.
FF#12 Plaintiff’s share of the retirement account is $48,757.60 based on the formula in the Decree (½ *26 times (Feb. 1979 to June 1, 1987 i.e. 8 years 3 months) divided by 25 years with the Company (300 months). (CR 1:53) (Appendix 2).
! (Disputed) Conclusions of Law .
CL#3 The Statute of Limitations began to run after August 2012 ( Id .) (Appendix 2).
CL#6 The Court awards Plaintiff a Judgment for $48,757.60, plus $2,600.00 attorney fees, all costs of Court and interest as allowed by law. ( Id .) (Appendix 2).
M Abuse of Discretion.
An appellate court reviews a trial court’s decision on a motion for enforcement
for an abuse of discretion. Mayorga v. Mayorga , No. 03-13-00787-CV; 2015 T EX .
A PP . L EXIS 4713, *11 (Tex. App.–Austin, May 8, 2014, no pet.) (mem. op.); Murray
v. Murray , 276 S.W.3d 128, 143 (Tex. App.–Fort Worth 2008, pet. dism’d). The trial
court abuses its discretion if it:
(1) it acts in an arbitrary or unreasonable manner without reference
to any guiding rules or principles; or
(2) erroneously exercises its power by making a choice outside the
range of choices permitted by law.
Cire v. Cummings , 134 S.W.3d 835, 838-39 (Tex. 2004); Mayorga , 2015 T EX . A PP .
L EXIS 4713 at *11; Murray , 276 S.W.3d at 143.
The mere fact that a trial judge may decide a matter within his discretionary
authority in a different manner than an appellate judge in a similar circumstance does
not demonstrate an abuse of discretion has occurred. Downer v. Aquamarine
Operators, Inc. , 701 S.W.2d 238, 242 (Tex. 1985), cert. denied , 476 U.S. 1159, 106
S. Ct. 2279, 90 L.Ed.2d 721 (1986). Thus, when reviewing matters committed to a
trial court’s discretion, an appellate court may not substitute its own judgment for that
of the trial court. In re Am. Nat’l Cnty Mut. Ins. Co. , 384 S.W.3d 429, 432 (Tex.
App.–Austin 2012, original proceeding).
Argument and Authorities Issue No. 1 Re-Stated: Teresa’s enforcement action was subject to the applicable
statute of limitations. Paul properly raised this defense in his pleadings and during the bench trial. Did the trial court abuse its discretion by enforcing the parties’ 1987 divorce decree and awarding Teresa $51,635.60 when her enforcement action was barred by this affirmative defense?
M Two-Year Statute of Limitations: T EX . F AM . C ODE § 9.003(b).
The trial court held that the two year statute of limitations found in Section
9.003(b) of the T EXAS F AMILY C ODE was applicable to the Petition for Enforcement. [2]
(CR 1:41; CL#1) (Appendix 2). T EX . F AM . C ODE § 9.003(b) reads as follows:
§ 9.003. Filing Deadlines
. . .
(b) A suit to enforce the division of future property not in existence
at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred.
T EX . F AM . C ODE A NN . § 9.003(b) (L EXIS 2015).
*29 Generally, when a cause of action accrues is a question of law. Provident Life
& Accident Ins. Co. v. Knott , 128 S.W.3d 211, 221 (Tex. 2003). A cause of action
accrues, and the statute of limitations begins to run, when facts come into existence
that authorize a party to seek a judicial remedy. Id . In most cases, a cause of action
accrues when a wrongful act causes a legal injury regardless of when the plaintiff
learns of that injury or if all the resulting damages have yet to occur. Id . However,
an exception may defer accrual of a claim—the discovery rule. Id .
M Discovery Rule .
Statutes of limitations are intended to compel plaintiffs to assert their claims
“within a reasonable period while the evidence is fresh in the minds of the parties and
witnesses.” Wagner & Brown, Ltd v. Horwood , 58 S.W.3d 732, 734 (Tex. 2001).
The public policy behind statutes of limitations is that it “is in society’s best interest
to grant repose by requiring that disputes be settled or barred within a reasonable
time.” Id .
The discovery rule exception operates to defer accrual of a cause of action until
the plaintiff knows or, by exercising reasonable diligence, should know of the facts
giving rise to the claim. Id .; Austin Indep. Sch. Dist. v. Lofters , No. 03-14-00071-
CV; 2015 T EX . A PP . L EXIS 3115, *10 (Tex. App.–Austin, Apr. 1, 2015, pet. filed)
(mem. op.).
The discovery rule is a “very limited exception to statutes of limitations.”
Horwood , 58 S.W.3d at 734 (quoting Computer Assocs. Int’l v. Altai, Inc. , 918
S.W.3d 453, 455 (Tex. 1996)). The rule should be restricted to exceptional cases to
avoid defeating the purposes behind the limitation statutes. Treuil v. Treuil , 311
S.W.3d 114, 118 (Tex. App.–Beaumont 2010, no pet.)(citing S.V. v. R.V. , 933
S.W.2d 1, 25 (Tex. 1996)). Thus, the discovery rule is only used when the plaintiff’s
injury is both “inherently undiscoverable” and “objectively verifiable.” Id . at 119;
Lofters , 2015 T EX . A PP . L EXIS 3115, *10; Horwood , 58 S.W.3d at 734.
! Inherently Undiscoverable .
“An injury is inherently undiscoverable if it is, by its nature, unlikely to be
discovered within the prescribed limitations period, despite due diligence.”
Horwood , 58 S.W.3d at 734-35. “Inherently undiscoverable” does not mean that a
particular plaintiff did not discover his or her particular injury within the applicable
limitations period. Id . Rather, the determination of whether an injury is “inherently
undiscoverable” is made on a categorical basis. Id .
Accordingly, a court’s focus is on the type of injury, not the particular injury
itself. Id . “Discovery rule cases focus on categorical ‘types of injury, not causes of
action.’” Texas Health Presbyterian Hosp. Dallas v. Burch , No. 05-14-00665-CV,
2015 T EX . A PP . L EXIS 625, *7 (Tex., Jan. 22, 2015).
! Pleading Requirement .
The discovery rule is also a plea in confession and avoidance. Woods v.
William M. Mercer, Inc. , 769 S.W.2d 515, 517 (Tex. 1988). Consequently, a party
seeking to avail himself of the discovery rule must plead the rule, either in his original
petition or in an amended or supplemental petition in response to a defendant’s
assertion of a statute of limitations defense as a matter of law. Id .
“A matter in avoidance of the statute of limitations that is not raised
affirmatively by the pleadings will, therefore, be deemed waived.” Id . at 518;
Proctor v. White , 172 S.W.3d 649, 652 (Tex. App.–Eastland 2005, no pet.) (same);
also see Treuil , 311 S.W.3d at 114 (ex-wife amended original petition and asserted
discovery rule after ex-husband asserted statute of limitations barred her claim to
portion of his retirement benefits); In the Estate of Melchior , 365 S.W.3d 794, 799
(Tex. App.–San Antonio 2012, pet. denied) (discovery rule held not applicable
because Estate did not specifically plead it).
! Burden of Proof .
Additionally, the party seeking to benefit from the discovery rule also bears the
burden of proving that his injury was both “inherently undiscoverable” and
“objectively verifiable.” Woods , 769 S.W.2d at 518. A party asserting the discovery
rule at trial to avoid a statute of limitations bar must prove all elements of the rule.
Tipton v. Brock , 431 S.W.3d 673, 677 (Tex. App.–El Paso 2014, pet. denied); also
see Treuil , 311 S.W.3d at 119 (because ex-wife sought to benefit from discovery rule,
she had burden to prove the nature of her injury–ex-husband’s failure to pay her
under divorce decree–was inherently undiscoverable).
! Reasonable Diligence .
Finally, the discovery rule does not excuse a party from exercising reasonable
diligence in protecting his own interests. Pitman v. Lightfoot , 937 S.W.2d 496, 510
(Tex. App.–San Antonio 1992, writ denied); Conoco, Inc. v. Amarillo Nat’l Bank ,
14 S.W.3d 325, 328 (Tex. App.–Amarillo 2000, no pet.) (finding secured parties must
take some responsibility to ascertain status of their collateral and holding discovery
rule inapplicable to toll statute of limitations).
Indeed, parties have an obligation to protect their interests by exercising due
diligence. HECI Exploration Co. v. Neel , 982 S.W.2d 881, 982 (Tex. 1998) (court
held that because mineral owners have some obligation to protect their interests by
exercising reasonable diligence, their injury was not inherently undiscoverable, and
discovery rule did not apply to their claims). Horwood , 58 S.W.3d at 737 (court held
injury was not inherently undiscoverable because royalty owner could discover such
injuries in timely manner by exercising due diligence).
Whether reasonable diligence was used is generally a question of fact unless
the evidence is such that reasonable minds could not differ as to its effect. Pitman ,
937 S.W.2d at 510. Under these circumstances, the issue of reasonable diligence
become a question of law. Id .
M Accrual of Teresa’s Injury.
In the case at bar, the Settlement Agreement required Paul to remit to Teresa
a portion of his retirement benefits “if, as, and when” they were received by Paul.
(CR 1:4; RR 3:PX#5) (Appendix 3). Teresa’s injury therefore occurred on November
1, 2004, when Paul received his retirement funds from Conoco and when upon his
receipt of same, he failed to immediately remit Teresa’s portion to her. See Treuil ,
311 S.W.3d at 118 (ex-wife’s injury occurred on date ex-husband withdrew all funds
from retirement account and upon doing so, then failed to immediately remit ex-
wife’s portion to her). Under the two-year statute of limitations found in T EX . F AM .
C ODE § 9.003(b), Teresa’s enforcement action was barred after November 4, 2006,
unless the discovery rule applies in this case.
M Inapplicability of Discovery Rule.
! Waiver of Discovery Rule .
The trial court abused its discretion in denying Paul’s statute of limitations
defense in the case at bar. (CR 1:45-46) (Appendix 1). Paul properly plead this
affirmative defense upon being placed on notice that Teresa had registered the
Divorce Decree in Texas. (CR 1:25). Additionally, Paul reasserted this affirmative
defense during the bench trial. [3] (RR 2:29).
Because Paul plead properly plead this affirmative defense, Teresa was
required to plead the discovery rule. See Woods , 769 S.W.2d at 517. If Teresa failed
to plead that the discovery rule applied to the case at bar, she waived this exception,
and the trial court could not on its own motion toll the running of the two-year statute
of limitations. See Id . at 518.
A review of the Petition for Enforcement establishes that Teresa did not
specifically plead the application of the discovery rule. (CR 1:35-37). Teresa did
not amend the Petition for Enforcement prior to trial. The only language in the
Petition for Enforcement which might be construed as alluding to the discovery rule
is a single statement found on the second page of the Petition for Enforcement which
reads as follows: “Petitioner became aware of this [Paul’s receipt of Conoco
retirement benefits] in late 2012 or early 2013.” (CR 1:36). Such general statement
does not satisfy the specific pleading requirement in regards to the discovery rule as
set forth by the Texas Supreme Court. See Woods , 769 S.W.2d at 517-18.
*35 If Teresa was going to raise the application of the discovery rule at trial, she
had a duty to specifically plead this exception in her pleadings. As she failed to
specifically plead the applicability of the discovery rule in the Petition for
Enforcement, Teresa waived this exception at trial. As such, the trial court erred in
concluding that the two-year statute of limitations began to run after August 2012 and
also erred in granting Teresa’s request to enforce the Divorce Decree. (CL#3; CL#4)
(Appendix 2). Because the discovery rule did not toll the two-year statute of
limitations in this case as a matter of law, this Court should reverse the trial court’s
judgment and hold Teresa take nothing by her enforcement action against Paul.
If this Court determines Teresa properly pled the applicability of the discovery rule in the Petition for Enforcement, Paul presents the following argument for the Court’s consideration.
! No Inherently Undiscoverable Injury .
The trial court abused its discretion in granting the Petition For Enforcement
because Teresa failed to meet her burden of proof in establishing the applicability of
the discovery rule in the case at bar. Specifically, Teresa failed to prove that her
injury in this case was inherently undiscoverable and therefore justified the tolling of
the two-year statute of limitations until she discovered her injury in August of 2012.
To the contrary, if Teresa had simply used reasonable diligence in protecting
her interest in Paul’s retirement benefits, she would have easily discovered his early
retirement from Conoco and his subsequent withdrawal of all his retirement benefits. [4]
• No Reasonable Diligence .
For example, at the time of the parties’ divorce, or any time over the next
nineteen years, Teresa could have requested that a QDRO be entered by a trial court.
Once the QDRO was in place, Teresa could easily have sent a copy of same to
Conoco. Upon receipt of the QDRO, Conoco would have had a duty to notify Teresa
of Paul’s withdrawal of his retirement benefits. Conoco would also have had a duty
to segregate out her portion of Paul’s retirement benefits prior to making any
disbursements to Paul. However, Teresa introduced no evidence that from June 1,
1987 through November 4, 2006, she made any effort to have a QDRO entered of
record and a copy of same sent to Conoco.
Likewise, Teresa could have simply sent Conoco a certified copy of the
Divorce Decree and Settlement Agreement immediately after the parties’ divorce or
*37 anytime over the next nineteen years. If Teresa had placed Conoco on notice that she
had been awarded a portion of Paul’s retirement account in their divorce, Conoco
would have notified her that at Paul’s request, it had disbursed all of his retirement
benefits to him on November 1, 2004. However, Teresa introduced no evidence that
from June 1, 1987 through November 4, 2006, she ever sent Conoco a copy of the
Divorce Decree or the Settlement Agreement.
Teresa could also have simply picked up the telephone, called Conoco directly,
and asked about the status of Paul’s retirement benefits at some point during the
nineteen years after the parties’ divorce was finalized. If a telephone call was
unsuccessful, Teresa could have sent Conoco a written letter inquiring about the
status of Paul’s retirement benefits. However, Teresa introduced no evidence that
from June 1, 1987 through November 4, 2006, she ever attempted to contact Conoco
directly about Paul’s retirement benefits.
A simple inquiry to Conoco itself anytime between November 4, 2004 through
November 4, 2006, would have brought Paul’s withdrawal of his retirement benefits
to light. See Urbanczyk v. Urbanczyk , No. 07-07-0077-CV; 2009 T EX . A PP . L EXIS
587, *7 (Tex. App.–Amarillo, Jan. 29, 2009, no pet.) (mem. op.) (court held discovery
rule not applicable because plaintiff’s injury was not inherently undiscoverable; a
simple request to brokerage firm itself should have brought unauthorized transfer to
light). All Teresa had to do was contact Conoco and she would have discovered her
injury. She simply chose not to make such contact.
Additionally, Teresa could have asked her children about the status of Paul’s
whereabouts and his current employment. If she had ever asked the children about
their father, she would have learned---at a bare minimum---that Paul had retired from
Conoco and was living in San Angelo, Texas. Yet, Teresa intentionally chose to
never talk to her two children about their father.
Teresa testified that she never discussed Paul with her children because she did
not want her “children to be drug into any kind of stuff like that.” (RR 2:21).
Teresa’s reticence in this regard might be considered laudable while the children were
minors. However, Teresa’s reluctance to speak to her children about Paul became
unreasonable when one considers that by 2004, both children were full-fledged
adults----with their daughter being twenty-six or twenty-seven years old and their son
being thirty-one or thirty-two years old. (RR 2:18). Simply checking with her two
adult children regarding the status of Paul’s employment and his current whereabouts
would not have caused her children any undue consternation. [5]
*39 To the contrary, if Teresa had simply asked one of her children during 2004
where Paul was working and living, her children would have informed her that he had
retired early from Conoco and was living in San Angelo, Texas. Such information
would have spurred Teresa to make further inquiries about the status of Paul’s
retirement benefits. As a result of these inquiries, Teresa would have learned of
Paul’s early withdrawal of all his retirement benefits.
Finally, Teresa could have always contacted Paul directly during the nineteen
years after the parties’ divorce to determine where he was living and working. Teresa
testified that she had only seen Paul “to talk to him one time” since they were
divorced. (RR 2:24). She further testified that this in-person meeting happened prior
to his retirement from Conoco. ( Id .).
It was unnecessary, however, for Teresa to actually meet with Paul in person
to make her diligent inquiries. She could have simply called him on the telephone,
sent him a letter, or sent him an email. Instead, she failed to make any effort
whatsoever to contact Paul about her portion of his retirement benefits from Conoco
for over twenty-five years.
The Record reflects Teresa had several sources from which she could have
timely discovered her injury, including Conoco, her two children, and Paul himself.
As such, Teresa’s injury in this case was not inherently undiscoverable. See
Horwood , 58 S.W.3d at 737 (holding that when a party can seek information from
several sources to evaluate the propriety of another’s action, discovery rule does not
apply).
• Teresa’s Specialized Knowledge .
The Record in this case establishes that Teresa failed to use reasonable
diligence to discover Paul’s early withdrawal of his retirement benefits and his failure
to send her a portion of the cash funds he received from Conoco to which she was
entitled under the terms of the Settlement Agreement. Teresa’s lack of reasonable
diligence becomes even more apparent when one considers her educational
background and professional expertise.
Teresa testified that she was licensed as an attorney in the State of Oklahoma
in February of 1990. (RR 2:23). She testified that she was also licensed to practice
law in Texas in November of 1990. ( Id .). Over the next twenty years, Teresa
testified she practiced law in both Houston, Texas and Oklahoma City, Oklahoma.
( Id .). At the trial, Teresa testified she was currently retired and living in Florida--
having surrendered her law license in 2010. (RR 2:20,23). She further testified that
she became disabled after a motor scooter accident in October of 2006 and was
currently receiving monthly federal disability payments in the amount of $1,400.00. [6]
(RR 2:20,23-24).
Teresa graduated from law school, passed two bar exams, and practiced law in
both Texas and Oklahoma for approximately twenty years. (RR 2:23). As such, she
not only had the opportunity to use reasonable diligence to timely discover her injury
in this case, she also had the legal knowledge, expertise, and skill to discover Paul’s
actions concerning his Conoco retirement benefits. However, she failed to utilize her
specialized knowledge to protect the property interest in Paul’s retirement benefits
which she was awarded under the Divorce Decree.
Furthermore, Teresa specifically testified she knew that she had been awarded
a portion of Paul’s retirement benefits under the Divorce Decree and that this property
right was to accrue at some point in the future. (RR 2:24-25). Yet, when questioned
at trial as to why she waited approximately twenty-five years to take any action to
enforce this property right, Teresa responded “–what would you have me do?” (RR
2:25).
Texas case law would have Teresa use reasonable diligence to discover her
injury in this case. The discovery rule does not excuse Teresa’s failure to use
*42 reasonable diligence to protect her property interests in Paul’s retirement benefits.
Teresa had several different means and sources available to her which she could have
utilized and timely discovered Paul’s actions in regards to his Conoco retirement
benefits. As a practicing attorney, Teresa also had the specialized knowledge and
legal skills she could have used to timely discover her injury. However, from 1987
until 2012, Teresa intentionally chose not to take any actions at all until she first
learned of Paul’s actions and then contacted an attorney regarding the issue of the
retirement benefits. (RR 2:21).
Teresa’s lack of reasonable diligence prevented her from discovering her injury
in this case. Accordingly, Teresa’s injury was not inherently undiscoverable as
required for the application of the discovery rule. Because the discovery rule is
inapplicable to the case at bar, Teresa’s enforcement action is barred by the two-year
statute of limitations under T EX . F AM . C ODE § 9.003(b) as a matter of law.
Conclusion
Because Teresa failed to meet her burden of proof to receive the benefit of the
discovery rule, the trial court erred in concluding the two-year statute of limitations
was tolled and only began running as of August, 2012. The trial court also erred in
concluding the Motion for Enforcement was timely filed as of April, 2014. Based on
these erroneous conclusions of law, the trial court abused its discretion in granting
the Petition for Enforcement and in awarding Teresa a money judgment for the total
sum of $51,635.60.
This Court should therefore 1) find the discovery rule is inapplicable to this
case and 2) conclude that Teresa’ enforcement action was barred by the two-year
statute of limitations found in T EX . F AM . C ODE § 9.003(b). Based on this finding and
conclusion, the Court should reverse the trial court’s judgment in all respects and
render judgment that Teresa take nothing by her enforcement action against Paul.
Prayer
Appellant Paul D. Simmons prays that this Court reverse the trial court’s
Judgment dated September 15, 2014 in all respects and render judgment in his favor.
Alternatively, Appellant Paul D. Simmons prays that this Court reverse the
trial court’s Judgment dated September 15, 2014 in all respects and remand this case
to the trial court for further proceedings in accordance with its ruling.
Appellant Paul D. Simmons also requests the Court to grant him any further
relief to which he may be justly entitled.
Respectfully submitted, GRAY & BRIGMAN, PLLC 206 West College Ave.
San Angelo, Texas 76903 Tel: (325) 653-4594 Fax: (325) 657-0039 Email: sgreen@grayandbrigman.com By: /s/ Melvin Gray Melvin Gray State Bar No.0832800 Appellate Counsel for Appellant Paul D. Simmons *45 Certificate of Compliance In accordance with Rules 9.4(e) and (i) of the T EXAS R ULES OF A PPELLATE
P ROCEDURE , the undersigned attorney of record certifies that the Brief of Appellant
contains 14-point typeface for the body of the brief, 12-point typeface for footnotes
in the brief, and contains 7,066 words, excluding those words identified as not being
counted in Rule 9.4(i)(1) and was prepared on Word Perfect Version 9.
/s/ Melvin Gray Melvin Gray Certificate of Service I certify that a copy of the Brief of Appellant was served electronically on this
the 13 th day of July, 2015, to the following party and that the electronic transmission
was reported as complete:
Kirk Hawkins
Attorney at Law
224 West Beauregard
Suite 303
San Angelo, Texas 76903
Attorney for Appellee
Teresa A. Simmons
/s/ Melvin Gray Melvin Gray
APPENDIX
APPENDIX!
No. B130232F )
TERESA A. SIMMONS IN THE DISTRICT COURT OF )
v. ) TOM GREEN COUNTY, TEXAS
)
PAUL D. SIMMONS ) 119m JUDICIAL DISTRICT
JUDGMENT
On the 22nd day of July, 2014, the Court heard Petitioner's Petition for Enforcement of Order.
Petitioner TERESA A. SIMMONS appeared in person and through attorney of record Kirk
Hawkins.
Respondent PAUL D. SIMMONS appeared in person and through attorney of record Melvin
Gray.
The making of a record of testimony was made by Lori Dobbins, Official Court Reporter.
The Court has considered the pleadings and official records on file in this cause and the
evidence and is ofthe opinion that judgment should be rendered for Petitioner.
The Court specifically finds that a suit to enforce future interest must be brought within two
(2) years of the anniversary of the date the right to the property matures or accrues or the suit is
barred. The Court finds that the earliest Petitioner TERESA A. SIMMONS learned about the
retirement distribution was after August 2012, and therefore the Statute ofLimitations began to run
after August 2012. The Court further finds that Petitioner's suit to enforce the future right was filed
April2014, within two (2) years ofPetitioner's discovery of the distribution.
Therefore, it is accordingly ADJUDGED that TERESA A. SIMMONS, Petitioner, recover
from PAUL D. SIMMONS, Respondent, judgment for--
1) $48,757.60 as the principal amount due;
44
2) $278.00 costs of court;
3) $2,600.00 attorney's fees;
4) $51,635.60 total judgment;
5) post-judgment interest at the rate of 6% per year on the judgment from the date of
judgment until paid and all costs of court.
IT IS ORDERED that Petitioner shall have all writs of execution and other process
necessary to enforce this judgment.
All relief not expressly granted herein is denied.
SIGNEDtbis 44k /~ ~/.V
_;;:' /_Lk9~4 JUDGE PRESIDING - MELVIN GRAY/
Attorney for Respondent
45
APPENDIX2 *51 Cause
# B-13-0232-F § TERESA SIMMONS In the 119th District
§ Court vs. § of
PAUL D. SIMMONS § Tom Green County,
§ Texas Findings of Fact & Conclusions of Law.
Findings of Fact:
1. Plaintiff (former wife) and Defendant (former husband) were divorced
on June 1, 1987 in New Mexico. Plaintiff was awarded a portion of Defendant's retirement acquired through Defendant's employment with Conoco. Plaintiffs portion was to be paid if, as and when received by husband. Wife's portion was defined in the Divorce.
2. Defendant worked for Conoco for a total of 25 years, from February 12,
1979 to 2004. In 2004, Targa purchased Conoco-Phillips and Defendant continued to work for Targa. While working for Conoco, he was married to Plaintiff for 8 years, 3 months (2179 to 6/1/87).
3. Defendant received $295,500.61 retirement benefits from Conoco
employment on 11/1/2004. Defendant used the retirement distribution to pay bills, including a
4.
debt payable to Wells Fargo that was secured by a lien on Defendant's homestead.
5. Defendant paid Wells Fargo in August, 2012.
6. Wells Fargo signed a Release of lien on August 29, 2012.
7. Plaintiff learned of this retirement distribution sometime after August
2012 when her daughter told her that Defendant was mad at a loan company and paid them with proceeds from a retirement distribution.
8. Plaintiff filed a Notice of Registration of Foreign Decree in Tom Green
County Texas District Court on April4, 2013 and then gave notice to Defendant of the Registration and in a note stated "We've registered this decree in anticipation of having to enforce a portion of that decree regarding your Conoco retirement."
9. On April 22, 2013, Defendant filed a response, including affirmative
defenses of laches and statute of limitations. Defendant requested a hearing to contest enforcement of the registered order.
10. On April3, 2014, Plaintiff filed a Petition to Enforce the Order.
Findings of Fact and Conclusions of Law
52
11. Plaintiff has incurred reasonable and necessary attorney fees of
$2,600 to collect her share of the retirement and court costs.
12. Plaintiffs share of the retirement account is $48,757.60 based on the
formula in the Decree [112 times (Feb 1979 to June 1, 1987 i.e. 8 years 3 months) divided by 25 years with the Company (300 months). Conclusions of Law:
1. Family Code Section 9.003(b) provides:
A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred.
2. The earliest Plaintiff learned about the retirement distribution to
Defendant was after August 2012.
3. The Statute of Limitations began to run after August 2012.
4. Suit to enforce the future right was filed April2014, within 2 years of
Plaintiffs discovery of the distribution. ' 5. Laches is an equitable remedy to prevent an inequitable result.
Defense of laches is denied.
6. The Court awards Plaintiff a Judgment for $48,757.60, plus $2,600
attorney fees, all costs of Court and interest as allowed by law.
/~ Ben Woodward, Judge Presiding Date Signed
Findings of Fact and Conclusions ofLaw
53
APPENDIX3
(f
..D '87 JUU -t P4 :Qj IN THE DISTRICT COURT OF EDDY COUNTY STATE OF NEW MEXICO PAUL D. SIMMONSi
Petitioner, ) . )
vs. .. No. DR-87.;.40-S ) r
.. TERESA A. SIMMONS , ) )
.. Respondent. · ) DECREEOF DISSOLUT:IONOFMP..RRIAGE . . .. . . . . . . . . . . ~
THIS MAT'rER having ~ome. befor.e the. Court upon the veri- ~ied ~etLti6~ for Dissolutio~ of M~rriage ori file hereini and . . . . . ·.
. upon the Child Custody, Support ancl Property Settlement· Agreement
ex~cute~ by t~~ parties and presented to the Court foi its . .
conside.ration, and .P~titioner app.ea~ihg with his attorney, John . . . . .. · ' . . . . . . . J·
Funk, and th.e Co:urt having heard the testimony and being.
suff~c~ently ~dvise~· i~- the premises, ,FINDS:
1. Petitioner has. been a resident of .the State of New
· Iwiexico- for more than· six months immediately preceding the filing . . . . of the Petition herein,·. and the Court has jurisdiction of the
parti~s an~ the subject matter bf this action. Because of . . . . . . . ' discord and conflict of personalties,. the. legitimate ends of the . . . . . . .
· .. marriage relationship have been de3troyed, pre~epting any reason-
able expectation of. reqonciliatfoi1. All ma~erial allegation~ in
the. Petition filed h,endn are t-r~e •. *55 'l'he Child Custody, Support and Property Settlement
2. ~greement executed by the parties and presented to the Court is
tair to both parties and should be approved.
Based on the foregoing, the Court CONCLUDES: ~hat the marriage of the parties should be dissolved a[).d the term~ of the Child Custody, S~pport and Property Settle
ment Agr~ement executed by the parties shoul~ be incorpo~a~ed
·herein with the same force and effect as if fully set forth' at
this point.
IT IS, TfrEREFORE, ORDERED, ADJUDGED AND. DECREED that the marriage of the parties be, and hereby is dissolved, and that
the Child Custody, Support and Property Settlement Agreement on
file herein. be, and h~re~y is incorporated by reference as if . . :;, .· .. . . . .' . .
. full.y set forth at this point. . ~/-7/r··
·_5/di····
District Judge SUBMITTED BYi MAREK & YARBRO, P. A •
. Ba#flnk~
·. 110 w~ Shaw · . ·P. o. Drawer AA
carlsbad, New Mexico 8822l.,;.Ai\ ·• · . . {505) 885~6615 IY.EPE3'tCERTIPf i'r15.
Attorneys. for·Petitioner ABOVE 1$ A TRU 1.': AND CORRECT . ·COP'{ OF'THE 0!'\lGINAL FILED ... wrTNESS :;r H("•l;l~ AND SEAL THIS . ON~l· .. ··.·. .. -tQ 15 .· · .... - ERiC ELLIS. · .· · ·. ·. C~· DISTRl .. ~. 0 ... · ..... · .,0,Q_ .· .· . . a·· . · . . . ·. · .. ·. . . . OEe!JTY *56 APPR;ii}ED BY:
DICrC:'RSoN";y;rsK .. &. VANDIVER .. i"'
BY'' ;a<'( CCcj ~- {?it_t5Ck-!
Re0ecca Dickerson
Seventh & Mahone, Stiite E
At::.esia, New Mexico 88210
( 505) 746-9841
Attorneys for Respondent
I
·~.· · ... /··:
tO. *57 IN THE. DISTRICT COURT OF EDDY COUNTY STATE OF NEW.MEXICO ) PAUL D. SIMMONS,
) ) .. Petit icmer, )
> . No�· 0R�a1-,o-s . . . . .VS•
) )
. ·· TERESA A. SIMMONS, } . ) . ' ·Respondent. ' ' ·. CHILD CUSTODY, SOP: ,.. AND . PROPERTY SETTLEMENT .&uREF .... �ENT. ... . '
THIS•AGREll?1ENT, made and entered into by Paul D. Simmons, .• hereinaft er referred. to as "Husband"; and. Teresa A "'.
Simmons,. hereihaf ter referred: to a:s "Wife I' . ' . . . . . . W X T� i SSE TH: . - . . . The· parties.· hereto are· husban.d and .wife bu.t pro- . . . . . . . . . . : ' : .
. ceedings for. the -diio;solu.tion of the marriage are presently· pend-· ing in the District Court of Ecidy C�unty,· in the cause styled- · . . . . -. : . . : . · · · . ... . . . . : . .
above; . Petitioner•• s, Paul D. s immons, mailing addregs is ·•
; Petitiorier' s ·. Social Security Number is .1 and Petitioner's. date of-_ - birth is . Respondent's, Ter:esa A. Simmons,. mailing . ' '
-address is
11
·.·.: :, ~ Respondent's Social Security Number is ; and
Respondent's cate of birth is .
C. It is the intention of the parties to enter into an
agreement undPr which their respective rights and obiigations as
to their minor children, property rights and all rights,
privileges and obligations to each other ~rising ocit of the marriage relatiol"'ship or otherwise should be fully provided for. . . . . .
NOW, TFEREFORE, in considen~tion of the foregoing,. it
·is agreed as follows: . . . . .
1. Purpose .of Agreement. This agreement shall be sub-
. mitted to th~ oistrict Co.urt of Eddy County .for approval of its··
terms and if approved, for incorporation into the Decree of Dis~
. solution of Marriage 'co .be< entered in these pr6ceedings as. the . . . . . :
·order. of .the Court~. If. not approved and incorporated ... this agree-
•ent'shall have no· effect.
2. Child Custody. and Visitation.··. Both. of .the parties
are fit and pr6per persons tb. have the. t::::tte,: custody and control
·of th.e parties' minor childr~n;
· The parties shall be awarded· joint custody of the · mi.nor children, pursua~t to §40-4-:9.1 N.M.S.A. (1978), upon the· . . . '·. . . ·.. .. '·
following parenting plan. Husband shall have physical custody of·
the minor chi idren · du:::-ing each·. regular. school year. Wife f!"lall . . . have physical custody of the minor children during tneir summer. . . . . . . . . . . . . ~-
scho~l vacation; Each parent shall,be entitled to reaSonable
visitation with ihe chil~ren during. the other par~nt•~ pe~~~d of . . . . . . . . phys~dal dri~tody. The parties agree that the.rninoc childr~n~hav~
12
both reached the age at which their preferences and activities
should be considered in setting visitati~ns. The parties agree
to cooperate ~ith each other and the children to insure that the
children spend significant amounts of time with each parent. The
parties further agree to each be supportive of the children's
rel~.tionship with thE' other parent, positive about that relation
ship, to encourage· the children to enjoy their relationship with . .
the ot~er pa~ent and n6t to interfere with the parent/child
relationship of the other. . . . .
3. Child Support. During summer scl:10ol vacations, or
other periods of time when t·Hfe shall have physical custody of . .
the minor children for 30 days or more,. Husband shall pay tc ~nfe . . . .
for ~he.~u~port ~nd maintenanc~ of the patties' minor childr~h
· $100.00 per .month, due on the fir:·;t day· of the month •. While Wife . . :
attends ··law school, she . shall not :..;,~ i. !Higated to pay .Husband any
arr.:Junt. foi the s.upport and maintenance of the minor children. . . . . : . . . . . .
4. Custody and support Jurisdibtion. Upon Wife's . .
. g.rad·uation fr.om· law school.,·. this Court shall have continuing·.
··.jurisdiction to decide. whether the custody. and/or child supp~rt
provided in.this agreement should be modified. . . . . . . . - . s. Temporary Support.· Until December 31, ·1988~ Wife.
sh~Jl continu~ to use qertain credit cards ~urrentli in he.r
posses~Lo~ for the p~rchase of ~asoline and aQtomobile
.13
maintenartce supplies. Husband agrees to pay all such expenses
charged on the credit cards up to a maximum amount o~ $100.00 per
month.
6. Division of Community Proper!_y. The parties'
community property shall be divided as follows:
A. Wife shall h~ve set over to her as her stile and
separate property:
1 .. Jewelry
2~ 1986 Oldsmobile
.3. 1968 Ford Mustang
4. $9,000.00, compris~d of cash. advarced frir . school· expenses and proceeds.· from her·. teacher. retirement bene~ ··
.fits.·· and equipment
Apple 2E computer Waterbec1
Microwave
. H:~deabed
Wood desk
.14 B. Husband shall have set over to him as his sole and separate pt0perty:
1. Master bedroom furniture 2. 10" black and white televisi6n 3. Three end tables
4. Chest of drawers
5. Waterbed
6. Two wood chairs
7. Yellow easy chair
8. Half bed in extra bedroom.
9. Set of encyclopedias 10. 12 gauge·pump action shotgun • 22 rifle · 11.
12.. 30/30 rifle
13. · . 410 shotgun
14.. 17" black and white television 1.5 •.. Texas Instruments computer 16. wood·chair in extra bedroom 17. Suitcases
18 ~· 19" color television. a.nd $tand 19. Two recliner chairs 2 o • Coffee. table
21 ~ Two end tables
22. Lamp in.living room 23. Two sofas· ·. . .
24 •. Wood rocking chair .in: living room 25. · Dinette table . ·
26. Black and white tele~isi6ri 27. Wood dinette table. with four wooden chairs 28. Microwave and stand
2 9. Sears trash compactor
30. 19 cubic .. foot refrigerator 31. Electric stove · · · 32. ·Pots, pans and dishes
33~ Pool table ·
34. Four bar stools· 35. Color televi~ion (broken) 36. Queen size bed
.37~ · lg".black and white television and stand 3 8. · CheGt of . drawers in Amy' S room · 39.· TWo booksh~lves 4 0 ~ .· Small stereO in Amy's room 41.· Deep freeze
42~ Electric dryer
43 ~· Washing mach in~ ·
44. christmas tre~ and decorations 45. Half bed in Jason Is roorn .
46. Chest of drawers· in Jason's room · 47. Small stereo in Jason's room 15
48. Small desk in Jason's room 49. Rome made p~cnic table 50. Lincoln welder
51. Wooden patio chairs
52. Gas barbecue grill
53. Assorted hand tools
54. Lawn mower
55. Electric edger
. 56. Various lawn equipment
57. 1973 travel trailer
58. Gooseneck stock trailer 59~ Five horses
60. T~ree saddles
61. Horse halters, bridles and tack 62. lOO bales o~ hay
63. 1985 F250 Ford pickup .. 64. Residence located at 1308 Bryan Circle ·. 65. Jewelry
66 •. 35 mm camera .arid. lens
67. ·coin collection. .
68 • . Husband's retirement; pension, thrift, profit
sharing and <other employee benefit~'> acquired. through Husband's
empl.oyment with Conoco, except that portion set aside to Wife in
·paragraph 6. A. 23 above. · · . . · ··• . . . . · . . . · .·. . .. · . ·• · · · 69 •. BUsb~~d's personal effe~ts and belongings and
~he hou~ehold ~rirnitnre and furnishings and other per~ortal
property cu~rently in hi$ possession.
7 • . Division ~f Communify Debts. ·A. HUsband shall assume and pay and hold Wife harmless :£or the following indebt~dness of the patties:
1. ~oneco thtift loin in the.approximate amount
of $11,078.93. . . ·~ ._ 2. Conoco Credit Union in the approximate amount . . .· _ .·
. . . . of $8t90l.36. 3. In~er~al Revenue·s~rvic~ in the a~ount of
$531.60.
4. VISA in th~' approxi~te amount of $1,076.64 •. 5. · Visa G~ld Card:in t~e approximate amount of $4,834.57.
16
. ..... ;,
6. Master_ Card (California) in the approximat~
amount of $1,207.75.
7. Master Card (O)tlahoma) in the approximate *63 . amount of $256~26.
8. Conocci Gas Card in the approximate amount of
-$461. 89_ .•.. . . . ·. . :
9. Sears in the approximate amount of $1,501~39. · 10~ united New Mexic6 B~n~ (n ihe approximate amount Of $3 i 727. 81~.
lL- Penny's in the approximate amount of $31.10. 12. Gold Master C_ard in the. approximate ·amount of
$600.00 •.
13. ·._ Columbia Pacific University in the amount of. $1,.739.71·
14. United !\Jew Mexico Bank at Albuquerque .in tbe
.approximate amount of $82 [1] 200. oo, secured. by the parties' r.esi..;.
dence. •
B. Should any further' comrriuni.ty liabiliti:3S be found
··to- e-~is--~,~~s-u-e-h--l-ia-bll-:iti·es sha:i.l _become· th~ sole and s~para te
liability of the party having incUrred the liability, and that .. . .
. party shall hold the other party harmless from· said liability. . . .. . . . . . . . . . ~ . . :. . c.- Each party indemnifi~s the oth~r party and hold~ . . . : . .
the other party harmless from all ·liability, expenses, costs and
. : ;
... _.· .· . :i' . . ·.-:'.· . . ···. . ...
. . ~ . 17'
~l,,
attorney's fees incurred when a creditor attempts tc collect, or
does collect, a debt or liability from one party that was assumed
·. by the other: party under this agreement.
'· Income Tax. Husband and Wife shall file a joint income tax .return for lh8 tax year 1986 and separate returns for
subsequerit tax years.
A. Eadh party agrees to Fro~ide the other with any
information or documentation necess~ry £o enable the parties to
file such income tax returns .. . . . . . . . . .
B •. The parties agree that all-refunds due on the 1996 . . . ·. . . . . :
income tax ret urns shall be paid one-half to Wife and orie_: half to
Husband.
. . C. ·· .. Each party will indemnify the other for all coSts, expenses arid attorney's fees inc.urred when any tax. authority . . .
attempts to collect, or does ~oliect, a tax obligation from- one
party that was assumed by ·the o:ther par:ty under this agreement.
·In. the e~ent any prior joint. return. is audited or contested or .. · . . . '•
·a.ny additional. tax, interest or penalties are found d1lf',• the_ . . . . .
-pa~tie~ will each pay only .o11e-h9-l_f of such additional. tax, ·inter- ·
est or penalties~. The indemnification stated above shall also be· . .. . ' . ~-
·· applicable._ to the. tax, interest or penalty liability on such prior returns. The indemnification stated above Shall>not apply. . -... . .· .. . . . . .
. when the ·tax, interest or penalty liability arises from an in~. . .. . . .· . . . . .
tentional misrepresentation, ·failure . t;e report income or other
fraud. · · t:Jnder such ci rcums t.ances, th_e party responsible £ot the
· ... intentional· misrepresentation,· failure to report or fraud shall
be fully responsible for any liabilities incurred and shall hold
the othar party harmless for any such liabilities.
D. So long as Husband has physical custody of the chil- dren for more than ~ix months of each year, Husband will be allow-
ed to take the children as. deductions for income tax purposes and
Wife will execute whatevet forms·are required by tax authortties
to effectuat~ this provision.
8.. Voluntary Execution. Each party s.tates that this compromil3e agreement is fair and equitable and has been entered
. .· .· . . .
in to wi tho tit any undue influence, fraud or misrepresentations, or
for any purpose e~cept as specified herein. This Agreement .· ·. . . :. • . . ·.. . . . : .
settles all. claims and disputes between the parties and contains . . . ·.
. the entire understanding of· the parties, who ackn.owledge that . .. . . . ..· . .
':here heive been and are no representations, warran_.ties, covenants or. understandings othe.r· than those expressly set forth. Each . . · . . · . . . party specifically states a complete disclosure has been made of.·
.. ·· .·,·. · . . i. . . . .. . . · ...
·all assfts and liabilities to the other party.
The pc;trties agree to execute ail deeds, titles,· docu- ment~, and p~pers. necess~ry ,to et'feCtuate this agreement. · The ·.. . . .
·.· .·· . ·.: . parties. further agree that i i any such de.eds, docull'.ents and
pape~s are not exe6uted within 30 days from the Decr~e of Dis~
solution of Mairiage, the Decie~ shall act as the con~ey~rice of
all property ( inc 1 u ding a s aut ho r i zed by § 47 -1-12 N • M • S • A.
~i978 ). The remedies p~ovided under the ~ew Me~ico RUles of .· . .
·Civil Procedure,· and specifically. Rule 70, shall also be avail.:..
able to each party.
19 9. New Mexico Law. This agreement shall be governed,
construed and enforced in accordance with the· laws of the State
of New Mexico.
10. .Modification or Waiver of Provisions. Any modifi cation or addition to th(.;! terms of this agreement, or the subject
matter covered by this agreement, shall only be. done ar1d be effec
tive if made in writing and executed with the same formality as
this a~r~~ment~ The failure of eith~r party to insist upon per
. formal1ce of any of the provisions of this agreement shall .not be
a waiver of any ~Ub~equent-defatilt c~ th~ same o~.a similar
· nature. In the event either party defaults· ,in any of his or . her
• obligations under .this agreement,·· th~ defaulti~g party shall be .· .· . . . . . : ·. . .
liable to the other party for· all reasonable expenses· incurred by
th~. ot·h':t' party, including actual attorney's fees, .co'sts and
l{tigation·exp~nses, irt pursuing enforcement of·the.obli.gations
created. by this agreement.
. 11. Binding Effect. Thi~ agree~ent shall be f~lly
effective and bindi~g upori the paiti~s and their personal rep
resentati;es,. estates, . and assig9s. as of .the date the .last .party·
actually signed thl.s agreement. Any .property acquired by either .·· . .. .
. party after. the effective date of. this. agreement shall be t:he
sole and separate property of the .party_ acquiring such property.
12. C6nsent to Judgment. ~Wife hereby acknOwledges
that Husband is represented by Marek & Yarbro, P.A.,. and that she
has employed Dickerson, Fisk & Vandiver to represent her in this.
·proceeding. Wite hereby consents- to t.he entry of a Final Decree
20
of ~issolution of Mar~iage incorporatinq this Child_ Custody,
Sup~- )rt and Property Settlement A-greement as the Order of the
Court, and consents to entry of a Final Decree of Dissolution of
Marriage, at any ti~e, without ariy further ~ppearance by her in
this matter.and without any further notice to her.
IN .WITNESS WHEREOF, the parties have executed this ; 9'-!.}:;- -day of _--~.!~•A.'+. ·.£./,o···-~-,_- ___ , 1987 • *67 agreement on the
... g ·.J/dz · . . · .... ··.· . '/"l< ·7
. 'l .. /. / ~-/., . . . .. . .
·.· J ··./. / . ·' .· . . . ~-. -~ccu.L------.---.~ -Ttl:~~~ ~F·s1~re====-" _-. Paul_ o. Simmons, Husband _· · STATE OF·OKLAHOM:A. ) )ss.
COUNTY · OF. OKLAHOMA .·} . . The foreg~instrument was acknowledged ?ef_ore_ me
this /? ?Z;L:iA·L. , 1987, by Teresa A. S1mmons. day of , (} 4 .?Z~~ .
N~ry "'P"ubl1c M~y commission expires; ·~--.--Ye4· 5; 12R'.:?: '/ . '· .. .; . ~-- ~ ··--· ..
S'IATE OF NEW MEXICO } . ) ss ..
COUNTY OF EDDY ) .· . . . . . . - . . . ·. . The foregoin-g .. instrument was acknowledged< before me·
this · /.:;r ·_·. day of .. _ J4!tflte: --_·. ·._ , 1987, by· Paul D~ Simmons.· . . . :
-·. My commjssion expires: .. H~~··.z,t;..tff_ . • . . . •..
21
[1] The trial court found that Paul had utilized some of the retirement benefits he received on November 1, 2004, to pay off a mortgage on his home in August of 2012. (FF#5). (Appendix 2). However, there was no evidence that Paul actually used these particular retirement benefits for that purpose. Rather, Paul simply testified that he had paid off his home mortgage in 2012 and did not identify the funds he utilized in paying this debt. (RR 2:13). Accordingly, the trial court’s finding of fact in this regard was incorrect.
[2] The Settlement Agreement included a choice of law provision stating that the law of the State of New Mexico governed the enforcement of the terms of the Settlement Agreement. (CR 1:10; RR 3:PX#5) (Appendix 3). However, neither Paul nor Teresa argued to the trial court that this enforcement action should governed by New Mexico law; therefore, the trial court applied Texas law in this case based on the consent of both parties. See Coca-Cola Co. v. Harmar Bottling Co. , 218 S.W.3d 671, 695 (Tex. 2006) (explaining that choice of law issues can be waived unless the complaining party objects to the law being applied, requests application of another state’s law, and requests judicial notice of the law of the other state).
[3] Paul’s trial attorney actually argued that Teresa’s enforcement action was subject to a four year statute of limitations; therefore her suit was barred as of November 4, 2008. (RR 2:29). As Teresa filed the Petition for Enforcement on April 3, 2014, her action would still have been barred if a four-year statute of limitations is applicable to the case at bar. (CR 1:35-37).
[4] There appears to be no Texas case specifically holding that an ex-spouse’s actions regarding his or her retirement accounts, as a category, are inherently undiscoverable. See Trueil , 311 S.W.3d at 119-20 (appellate court side-stepped issue of whether ex-husband’s failure to give ex-wife her portion of his retirement benefits as required under parties’ divorce decree constituted an inherently undiscoverable injury). Such lack of authority is not surprising, however, as retirement accounts are easily discoverable and thus do not constitute the exceptional type of categorical injury to which the discovery rule should apply.
[5] Paul testified that Teresa should have known where he was living and working through contact with their children. (RR 2:10).
[6] As to the nature of Teresa’s disability, she testified that she had torn up both her knee and back during the motor scooter accident. (RR 2:23-24). She also testified that she could no longer practice law because she was on “morphine and a lot of drugs” and she believed it would be committing malpractice for her to represent a client. (RR 2:24).