Case Information
*0 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/23/2015 4:08:14 PM DORIAN E. RAMIREZ Clerk *1 ACCEPTED 13-15-00081-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 11/23/2015 4:08:14 PM Dorian E. Ramirez CLERK CAUSE NO. 13-15-00081-CV IN THE THIRTEENTH COURT OF APPEALS OF TEXAS STATE OF TEXAS ____________________________________________________________
APPEAL FROM COUNTY COURT AT LAW NO. 2 HIDALGO COUNTY, TEXAS PRESIDING JUDGE JAY PALACIOS ___________________________________________________________
JUAN GABRIEL ESPRONCEDA, Appellant VS.
SYLVIA SUE HANDY, Appellee ____________________________________________________________
APPELLEE’S FIRST BRIEF ____________________________________________________________
Respectfully submitted, Victoria Guerra 3219 N. McColl Rd. McAllen, Texas 78501 (956) 618-2609 (956) 618-2553 (fax) State Bar Number: 08578900 Appellee’s Attorney *2 IDENTITY OF PARTIES AND COUNSEL
Pursuant to rule 38.1(a) of the Texas Rules of Appellate Procedure, Mr. Serrano offers the following names of all parties, trial, and appellate
counsel:
APPELLANT: Juan Gabriel Espronceda
TRIAL COUNSEL Oscar Alvarez
600 South 11th Street McAllen, Texas 78501 (956)686-6330
APPELLATE COUNSEL Victoria Guerra
3219 N. McColl Rd.
McAllen, TX 78501 (956) 618-2609 (phone) (956) 618-2553 (fax) vguerralaw@gmail.com (email) APPELLEE: Sylvia Sue Handy
TRIAL COUNSEL Robert J. Salinas
Roel Gutierrez
2101 Wood Avenue Donna, Texas APPELLATE COUNSEL Pro se
ii *3 TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL ……………………………….. ii
TABLE OF CONTENTS ……………………………………………………. iii
INDEX OF AUTHORITIES …………………………………………………. iv
STATEMENT REGARDING ORAL ARGUMENT ……………………….. vi
STATEMENT OF THE CASE ……………………………………………… vii
ISSUES PRESENTED ……………………………………………………… viii
STATEMENT OF FACTS ………………………………………………… ...1
SUMMARY OF THE ARGUMENT ………………………………………… .1
ARGUMENT AND AUTHORITIES ………………………………………….
CONCLUSION………………………………………………………………. .16
CERTIFICATE OF SERVICE……………………………………………… .16
CERTIFICATE OF COMPLIANCE………………………………………… .17
iii *4 INDEX OF AUTHORITIES CASES
Armstrong v. Manzo , 380 U. S. 545 (1965) ................................................. 4
Associated Indem. Corp. v. CAT Contracting, Inc ., 964 S.W.2d 276
(Tex. 1998) .............................................................................................. 7
CA Partners v. Spears , 274 S.W.3d 51 (Tex. App. — Houston [14th Dist.]
2008, pet. denied.) ................................................................................... 6 Chafino v. Chafino , 228 S.W.3d 467
(Tex. App. — El Paso 2007, no writ) ........................................................ 14
City of Keller v. Wilson , 168 S.W.3d 802 (Tex. 2005) .............................. 5, 6
Crisp v. Security National Insurance Company , 369 S.W.2d 326
(Tex. 1963). ..................................................................................... 11, 13
Cunningham v. Parkdale Bank , 660 S.W.2d 810 (Tex. 1983) ..................... 3
Domangue v. Domangue , No. 12-04-00029-CV, 2005 Tex. App. LEXIS
6097 (Tex. App. — Tyler Aug. 3, 2005, no pet.) ......................................... 8
Downer v. Aquamarine Operators, Inc ., 701 S.W.2d 238
(Tex. 1985). ........................................................................................... 14
Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc. ,
960 S.W.2d 41 (Tex. 1998). ..................................................................... 7
Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80 (Tex. 1992) .................. 6
J.W.T. , 872 S.W.2d 189 (Tex. 1994) .......................................................... 4
Michigan v. Long , 463 U.S. 1032 (U.S. 1983) ............................................. 4
Micklethwait v. Micklethwait , 2007 Tex. App. LEXIS 5086
(Tex. App. — Austin June 27, 2007, pet denied) ...................................... 15
iv
Mullane v. Central Hanover B. & T. Co ., 339 U.S. 306 (1950) ................ 4, 5
Murray v. O & A Express, Inc. , 630 S.W.2d 633 (Tex. 1982) ...................... 3
Peralta v. Heights Medical Center, Inc ., 485 U.S. 80 ( 1988) ...................... 4
Ragsdale v. Progressive Voters League ,
801 S.W.2d 880 (Tex. 1990) .................................................................... 8
Roark v. Allen , 633 S.W.2d 804 (Tex. 1982) ........................................... 3, 4
Roberson v. Robinson , 768 S.W.2d 280 (Tex. 1989) .................................. 7
Rosenfield v. White , 267 S.W.2d 596 (Tex. Civ. App. — Dallas 1954, writ
ref’d n.r.e. ........................................................................................ 11, 13
Shaw Tank Cleaning Co. v. Texas Pipeline Co ., 442 S.W.2d 851
(Tex. Civ. App. —Amarillo 1969, writ ref’d n.r.e.) .............................. 11 –
Tiller v. McLure , 121 S.W.3d 709 (Tex. 2003) ............................................. 5
Worford v. Stamper , 801 S.W.2d 108 (Tex. 1990) ...................................... 7
World-Wide Volkswagen Corp. v. Woodson , 444 U. S. 286 (1980) ............. 4
Zeifman v. Michels , 212 S.W.3d 582
(Tex. App. — Austin 2006, pet. denied). .................................................. 15
RULES
Texas Rules of Civil Procedure
Rule 9.4(i)(l) .............................................................................................. 17
Rule 22 ....................................................................................................... 3
Rule 301 ................................................................................................. 3, 5
Texas Rules of Appellate Procedure
9.4(i)(3) ..................................................................................................... 17
v *6 STATEMENT REGARDING ORAL ARGUMENT Appellant does not request oral argument.
vi *7 STATEMENT OF THE CASE Nature of the case : This is an appeal from a final divorce decree after a bench trial. (CR 146 – 63).
Course of Proceedings : The final decree of divorce in this case was signed on November 21, 2014. (CR 146 – 63). On December 19, 2014,
Appellant filed a motion for new trial. (CR 166 – 67). Appellant’s motion for
new trial was overruled by operation of law on or about February 4, 2015.
Appellant filed a notice of appeal on February 18, 2015 and an amended
notice of appeal on March 2, 2015.
Trial Court Disposition : The trial court rendered judgment by signing the final divorce decree at issue on November 21, 2014. (CR 146 –
63).
vii
ISSUES PRESENTED ISSUE 1 (Restated): Due process of law under the Texas Constitution and the United States Constitution was violated when the Trial Court heard and ordered child support arrearages in the amount of $ 4,000.00.
ISSUE 2 (Restated): Due process of law under the Texas Constitution and the United States Constitution was violated when the Trial Court heard and ordered that Appellant pay to Appellee an amount of $ 300,000 which represents the replacement value of property that Appellant purportedly took.
ISSUE 3: The Uncontradicted Testimony of Appellee at the Hearing of August 11, 2014 (2R), which Served as the Sole Basis for the Final Decree of Divorce, Entered on November 21, 2014 (C146 – 63), Did Nothing More Than Raise a Fact Issue Because the Testimony was Confusing, Unreasonable and Its Credibility was Questionable and the Lower Court’s Reliance on it as the Basis for the Final Decree of Divorce Not Only Constitutes Error, it Constitutes a Fundamental Abuse of its Discretion ISSUE 4: The evidence was legally insufficient to support the Trial Court’s judgme nt that Appellant should pay to Appellee $ 300,000.00 within three (3) months of the signing of the decree.
ISSUE 5: Because the Record is Devoid of any Reliable and Credible Testimony by Appellee, There Was Insufficient Evidence Upon Which the Trial Court Could Exercise Its Discretion, Compelling the Conclusion that the Trial Court Abused Its Discretion, as a Matter of Law, by Entering the Final Divorce Decree
viii *9 STATEMENT OF FACTS Appellant and Appellee were married on April 12, 1997. They had one child during their marriage — Gabriel Roy Espronceda born April 3,
1998. 2R10. Appellee testified that the parties stopped living together in
August 2011. 2R9. Appellee served time in the federal penitentiary from
October 2010 and was released on December 21, 2012. She was away
from her son for a period of two years and two months. 2R36. While
Appellee was in prison, Appellant stopped visiting her around June 2011
and he moved out of the house in August 2011. 2R39.
Appellant did not appear at the bench trial of this cause. Appellee testified at said trial. The issues before this Court are whether Appellee’s
testimony and the documentary evidence admitted into evidence in trial are
credible and reliable and whether there exists legal and factually sufficient
evidence to support the judgment of the Trial Court.
SUMMARY OF THE ARGUMENT Due process of law under the United States Constitution and the Texas Constitution were violated when the Court proceeded to hear a trial
on issues of retroactive child support and replacement value of property
that was purportedly taken by Appellant. Appellant had not received notice
of said arguments as they were not plead in Appellee ’ s pleadings.
Appellee ’ s testimony, though uncontradicted, was so confusing, unreasonable, and lacking in credibility, that it did nothing more than raise a
fact issue was error and a fundamental abuse of discretion, and could not
serve as basis for the Trial Court ’ s judgment. The evidence was legally
insufficient to support the judgment of the Trial Court.
The Trial Court abused its discretion in ordering retroactive child support in the amount of $ 4,000 and in ordering that Appellant pay to
Appellee an amount of $ 300,000 which represents the replacement value
of the property that Appellant purported took. Said amount of $ 300,000 is
an unfair measure of Appellee ’ s purported losses in that it gives to Appellee
an unfair windfall.
ARGUMENT AND AUTHORITIES ISSUE 1 (Restated): Due process of law under the Texas Constitution and the United States Constitution was violated when the Trial Court heard and ordered child support arrearages in the amount of $ 4,000.00.
ISSUE 2 (Restated): Due process of law under the Texas Constitution and the United States Constitution was violated when the Trial Court heard and ordered that Appellant pay to Appellee an amount of $ 300,000 which represents the replacement value of property that Appellant purportedly took.
In Texas, "a civil suit in the district or county court shall be commenced by a petition filed in the office of the clerk." Cunningham v.
Parkdale Bank , 660 S.W.2d 810, 812 (Tex. 1983) citing T EX . R. C IV . P. 22.
"The office of pleadings is to define the issues at trial," Murray v. O & A
Express, Inc. , 630 S.W.2d 633, 636 (Tex. 1982) and to "give the opposing
party information sufficient to enable him to prepare a
defense." Cunningham , 660 S.W.2d at 812 citing Roark v. Allen , 633
S.W.2d 804, 810 (Tex. 1982). Also, the judgment of the court must conform
to the pleadings of the parties. Cunningham , 660 S.W.2d at 812 citing T EX .
R. C IV . P. 301
“Notice” under the meaning of due process of law under the Fourteenth Amendment to the United States Constitution and due course of
law article I, section 19 of the Texas Constitution includes notice of the
allegations brought against Appellant and the opportunity to present his
defenses against those charges. See Mullane v. Central Hanover B. & T.
Co ., 339 U.S. 306, 314 (1950). Failure to give notice violates "the most
rudimentary demands of due process of law." Peralta v. Heights Medical
Center, Inc ., 485 U.S. 80, 84-85 ( 1988) citing Armstrong v. Manzo , 380 U.
S. 545, 550 (1965); see also World-Wide Volkswagen Corp. v. Woodson ,
444 U. S. 286, 291 (1980). Texas Due Court of Law under the Texas
Constitution can provide greater protections than the due process clause of
the United State Constitution. See J.W.T ., 872 S.W.2d 189, 198 (Tex.
1994). It is well established that the Texas Constitution can provide greater
protections that those under the United States Constitution. See Michigan
v. Long , 463 U.S. 1032, 1068 (U.S. 1983).
In the instant case, there is no pleading that asserts a tort action for conversion or retroactive child support. It can be inferred that not knowing
that these allegations were going to be tried, Appellant bothered not to
appear at said bench trial. 2R5,7. The issues were not defined for trial.
Murray , 630 S.W.2d at 636 . The Appellee’s pleadings did not give
Appellant information sufficient to enable him to prepare a
defense." Cunningham , 660 S.W.2d at 812 citing Roark v. Allen , 633
S.W.2d 804, 810 (Tex. 1982). Further, the judgment in this cause did not
conform to the pleadings. Cunningham , 660 S.W.2d at 812 citing Tex. R.
Civ. P. 301. Appellee failed to provide Appellant with “notice” under
the meaning of due process of law under the United States Constitution
and due court of law under the Texas Constitution. Mullane , 339 U.S. 306,
314 (1950). Appellee has violated "the most rudimentary demands of due
process of law." Peralta , 485 U.S. at 84-85. Appellant was deprived of due
course of law and due process when he was forced to defend against the
allegations of retroactive child support and the order that Appellant pay to
Appellee $ 300,000.00 which purportedly represents the value of the
property that was purportedly taken by Appellant.
As such, reversing and remanding this case to the Trial Court would be proper, with an order mandating compliance with federal and Texas due
process of law.
LEGAL SUFFICIENCY Standard of Review:
Legal Sufficiency: The test for legal sufficiency is "whether the evidence at trial would enable reasonable and fair-minded people to reach
the verdict under review." AIMS ATM, LLC v. Sanip Enters ., 2014 Tex.
App. LEXIS 2261, *3 – 7 citing City of Keller v. Wilson , 168 S.W.3d 802, 827
(Tex. 2005); Tiller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003) (holding
that, in reviewing "no evidence" point, court views evidence in light that
tends to support finding of disputed fact and disregards all evidence and
inferences to contrary). In making this determination, a reviewing court
must credit favorable evidence, if a reasonable fact-finder could, and
disregard contrary evidence, unless a reasonable fact-finder could not. City
of Keller , 168 S.W.3d at 827. So long as the evidence falls within the zone
of reasonable disagreement, an appellate court may not substitute its
judgment for that of the fact-finder. Id. at 827-28. The fact-finder is the sole
judge of the credibility of the witnesses and the weight to give their
testimony. Id . at 819. Although an appellate court considers the evidence
in the light most favorable to the challenged findings, indulging every
reasonable inference that supports them, it may not disregard evidence
that allows only one logical inference. Id . at 822. If there is more than a
scintilla of evidence supporting a finding of fact, an appellate court will
overrule a legal-sufficiency challenge. CA Partners v. Spears , 274 S.W.3d
51, 69 (Tex. App. — Houston [14th Dist.] 2008, pet. denied.).
When, as here, no findings of fact or conclusions of law are
requested or filed, an appellate court implies all necessary findings in
support of the trial court's judgment. Holt Atherton Indus., Inc. v. Heine , 835
S.W.2d 80, 83 (Tex. 1992). However, because a reporter's record has been
provided, the implied findings may be challenged for legal and factual
insufficiency the same as jury findings or a trial court's findings of fact.
Roberson v. Robinson , 768 S.W.2d 280, 281, 32 Tex. Sup. Ct. J. 337 (Tex.
1989). A reviewing court must affirm the judgment on any theory of law that
finds support in the evidence. Worford v. Stamper , 801 S.W.2d 108, 109
(Tex. 1990).
Under a legal sufficiency standard reviewing courts must consider all evidence in the light most favorable to the prevailing party, indulging every
reasonable inference in that party's favor. Associated Indem. Corp. v. CAT
Contracting, Inc ., 964 S.W.2d 276, 285-86 (Tex. 1998). The findings are
legally sufficient if they are supported by more than a scintilla of evidence.
Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc. , 960
S.W.2d 41, 48 (Tex. 1998).
ISSUE 3: The Uncontradicted Testimony of Appellee at the Hearing of August 11, 2014 (2R), which Served as the Sole Basis for the Final Decree of Divorce, Entered on November 21, 2014 (C146 – 63), Did Nothing More Than Raise a Fact Issue Because the Testimony was Confusing, Unreasonable and Its Credibility was Questionable and the Lower Court’s Reliance o n it as the Basis for the Final Decree of Divorce Not Only Constitutes Error, it Constitutes a Fundamental Abuse of its Discretion The testimony of an interested witness, such as a party to the suit, though not contradicted, does no more than raise a fact issue to be
determined by the jury if the testimony was unreasonable or incredible, or
its credibility was questionable, then such testimony only raised a fact issue
to be determined by the trier of fact. Ragsdale v. Progressive Voters
League , 801 S.W.2d 880, 882 (Tex. 1990); see also Domangue v.
Domangue , No. 12-04-00029-CV, 2005 Tex. App. LEXIS 6097 (Tex.
App. — Tyler Aug. 3, 2005, no pet.).
At the trial of this cause, [1] Appellee testified that she received a Fen- Phen settlement which Appellee classified as her sole and separate funds
and property. 2R16. Appellee also had a settlement from an accident at
*17 Maverick Market in Donna. 2R15. All the property was missing when she
returned. 2R20. Exhibit 4 contains a list of all of Appellee’s separate
property. 1R, Pl’s Ex.4. Appellee thought that a burglar had taken all of her
property so her sister called the Sheriff’s office. 2R21; 1R, Pl’s Ex. 3. A
report was made indicating that someone had broken into Appellee’s
house. Nowhere in the report does it state that all the properties listed in
Exhibit 4 had been taken by Appellant. 2R58 ; 1R, Pl’s Ex. 4 . Yet, Appellant
asserts that Appellee told her that he had all of her property and was
holding it in storage, but he did not tell her what storage. 2R58. Appellee
purchased the home with her Fen-Phen money for $ 335,000. 2R59. She
had just as much invested in personal property as she had in the home.
2R59. All of the items were purchased in 2000 when they moved into the
house. 2R59. They were purchased over time. 2R59. Appellee does not
recall the last time that she purchased an item for the house that was
taken — she left to prison in 2010 and was gone until 2012. 2R60. Some
items are at least over 10 years old. 2R60. Appellee is not depreciating
any of the items and does not know the depreciation value. 2R63. She is
using replacement value to come to the figure of $ 300,000. 2R62.
Appellee wants Appellant to have supervised visits even though the child,
who was 16 years old at the time of the trial of this cause, was a very smart
person who was an honor student. 2R77.
It is unbelievable that Appellee spent almost equal amounts of money on house furnishings as she did to purchase the home. 2R59. Appellee
states that Appellant took her property (2R58), yet the police report does
not mention Appellant as the one who took the property. 2R58. Appellee
expects a windfall in seeking payment of a lump sum of $ 300,000 when
some of the property she states that Appellant took is over 10 years old.
Appellee’s testimony in this regard was incredulous and does not serve as
an appropriate basis for the final divorce decree in this case.
Because the Appellee ’ s testimony was riddled with inaccuracies and permeated with contradictions, her testimony at the August 11, 2014,
hearing, as a whole, is not credible and does not merit any deference by
this Court and further demonstrates that the court below, by basing its final
decree of divorce on this testimony, not only committed error, it abused its
discretion. It was an abuse of discretion and plain error for the trial court to
base the entirety of the final decree of divorce on this testimony. As such,
this case should be reversed and remanded to the Trial Court for further
proceedings.
ISSUE 4: The evidence was legally insufficient to support the Trial Court’s judgment that Appellant should pay to *19 Appellee $ 300,000.00 within three (3) months of the signing of the decree.
Without notice to Appellant, the Trial Court tried an issue in the nature
of tort, wherein Appellee alleged that Appellant Appellee’s separate
property from the marital estate while Appellee was in prison, and the total
value of the lost or stolen property was $300,000.00.
Replacement value is defined as the cost of replacing the injured property, minus any offset necessary to prevent a windfall to the plaintiff.
This offset represents any benefit to the plaintiff gained from using the
replacement, which may be a newer and less depreciated article than the
original. Shaw Tank Cleaning Co. v. Texas Pipeline Co ., 442 S.W.2d 851,
854 – 855 (Tex. Civ. App. —Amarillo 1969, writ ref’d n.r.e.) . Replacement
value is recoverable only if the property has no market value. Shaw Tank
Cleaning Co ., id. at 854. If the property has no market value and can be
replaced, replacement costs are the proper measure of damages
( Rosenfield v. White , 267 S.W.2d 596, 599 (Tex. Civ. App. — Dallas 1954,
writ re f’d n.r.e. )), unless replacement costs do not represent a fair measure,
as when replacement might provide an economic gain to the plaintiff. See
Crisp v. Security National Insurance Company , 369 S.W.2d 326, 328 – 329
(Tex. 1963).
It is unlikely that the replacement value will exactly equal the value of the injured article. When the replacement cost might provide some
economic gain, as, for example, when a used article is replaced with a new
one, the cost of restoration may be reduced by any betterment that might
result. Factors considered in determining any offset to an article’s
replacement value include whether the replacement will last longer than the
original article would have lasted; whether the replacement was in better
condition than the original article, which may have been in a deteriorated
condition; and the fact that the original article may have been obsolete and
the replacement up-to-date. Shaw Tank Cleaning Co. , 442 S.W.2d at 854 –
855.
In the instant case, Appellee purchased the home with her Fen-Phen money for $ 335,000. 2R59. She had just as much money invested in
personal property as she had in the home. 2R59. All of the items were
purchased in 2000 when they moved into the house. 2R59. They were
purchased over time. 2R59. Appellee does not recall the last time that she
purchased an item for the house that was taken — she left to prison in 2010
and was gone until 2012. 2R60. Some items are at least over 10 years old.
2R60. Appellee is not depreciating any of the items and does not know the
depreciation value. 2R63. She is using replacement value to come to the
figure of $ 300,000. 2R62. Appellee wants Appellant to have supervised
visits even though the child, who was 16 years old at the time of the trial of
this cause, was a very smart person who was an honor student. 2R77.
Appellee expects brand new items to replace the items that went missing from her home. 2R60. As previously stated, replacement value is
defined as the cost of replacing the injured property, minus any offset
necessary to prevent a windfall to the plaintiff. See Shaw Tank Cleaning
Co ., 442 S.W.2d at 854 – 855. Appellee failed to establish that the items
taken had no market value or that no windfall would have occurred. See
Shaw Tank Cleaning Co. , 442 S.W.2d at 854. Appellee also failed to show
that the items taken had no market value and could be replaced, therefore
replacement value is proper. See Rosenfield , 267 S.W.2d at 599. Rather,
applying the replacement value standard does not represent a fair measure
because would result in an unfair windfall to Appellee because some of the
items are 10-14 years old. 2R60. See also Crisp , 369 S.W.2d 326.
As a result of the foregoing, the Trial Court’s orders that Appellant pay back $ 300,000 to the Appellee was an abuse of discretion and was
not founded on any reliable and credible evidence. As such, this Court
should reverse the judgment of the Trial Court and remand this case for a
new final trial, with orders that the proper measure of damages be applied.
ISSUE 5: Because the Record is Devoid of any Reliable and Credible Testimony by Appellee, There Was Insufficient Evidence Upon Which the Trial Court Could Exercise Its Discretion, Compelling the Conclusion that the Trial Court Abused Its Discretion, as a Matter of Law, by Entering the Final Divorce Decree
The Abuse of Discretion standard of review is the generally applicable standard of review in family law appeals. Most of the appealable
issues in a family law case are evaluated against an abuse of discretion
standard, be it the issue of property division incident to divorce or partition,
conservatorship, visitation, or child support." Chafino v. Chafino , 228
S.W.3d 467, 472 (Tex. App. — El Paso 2007, no writ) citing Garcia v.
Garcia , 170 S.W.3d 644, 648 (Tex. App. — El Paso 2005, no pet.). An
abuse of discretion is not determined according to whether the reviewing
court would have decided the issues in the same way as the trial court, but
whether the trial court acted without reference to any guiding rules and
principles. Id . at 649 citing Downer v. Aquamarine Operators, Inc ., 701
S.W.2d 238, 242 (Tex. 1985). In other words, the appropriate inquiry is
whether the ruling was arbitrary or unreasonable. Chafino , 228 S.W.3d at
472.
To determine whether an abuse of discretion occurred, a reviewing court engages in a two-pronged inquiry: whether the trial court had
sufficient information upon which to exercise its discretion and whether the
trial court erred in its application of discretion. Zeifman v. Michels , 212
S.W.3d 582, 588 (Tex. App. — Austin 2006, pet. denied). The traditional
sufficiency review comes into play with regard to the first question; a
reviewing court then proceeds to determine whether the trial court made a
reasonable decision based on the evidence. Id. See also Micklethwait v.
Micklethwait , 2007 Tex. App. LEXIS 5086 (Tex. App. — Austin June 27,
2007, pet denied).
Here, the Trial Court abused its discretion when it ordered retroactive child support in the amount of $ 4,000.00. There was discussion had about
the parties having entered into an agreement that Appellee ’ s claim for
retroactive child support and Appellant ’ s claim for child support while
Appellee was in prison was a “ wash. ” The claims cancelled each other out.
2R40. It certainly seems like the fair and equitable thing to do.
The Trial Court also abused its discretion when it ordered that Appellant pay $ 300,000 to Appellee when, as discussed above, said
amount is not a fair measure of the purported loss by Appellee and clearly
constitutes a windfall to Appellee.
As a result of the foregoing, this Court should reverse the judgment of the Trial Court and remand this case for further proceedings as to the
issues at hand.
CONCLUSION AND PRAYER Appellant prays that this Court reverse the judgment of the Trial Court. Appellant prays that this Court order that the Trial Court apply the
correct measure of damage and remove the retroactive child support order
all together. Appellant also prays for such other relief in which he is justly
entitled.
Respectfully Submitted, Law Office of Victoria Guerra 320 W. Pecan Avenue McAllen, Texas 78501 (956) 618-2609 (956) 618-2553 (fax) By: /s/ Victoria Guerra Victoria Guerra State Bar No. 08578900 Attorney For Appellee, Ms. Ibarra CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Appellant ’s brief was forwarded by email to Sylvia Sue Handy at
her email address: sylviasuehandy@aol.com on this 23rd day of
November, 2015.
/s/ Victoria Guerra Victoria Guerra *25 CERTIFICATE OF COMPLIANCE In compliance with TRAP 9.4(i)(3), the undersigned certifies that the number of words in this brief, excluding those matters listed in Rule 9.4(i)(l),
is 3,408.
/s/ Victoria Guerra Victoria Guerra
[1] Appellee requests that this Court take judicial notice of Appellant’s convicted crimes of moral turpitude which should have a bearing on her lack of credibility in this case. In the United States District Court of the Southern District of Texas, McAllen Division in cause number 7:09-CR-00396-1, the Appellee served a 30-month term in the Federal Bureau of Prisons with a 1-year term of supervised release for the charges of making a false statement on a tax return and conspiracy to conceal or harbor aliens. Appellee also received a probated sentence in the 139th Judicial District Court of Hidalgo County, Texas in cause number CR-469111-C wherein she was charged and convicted in a multi-count indictment of offenses including: theft of property less than $200,000 (1st degree felony) and several counts of securing execution of a document by deception.