Donald S. Miles v. Veda Smith Miles

• Court: Court of Appeals of Texas
• Decided: February 20, 2024
• Docket: 05-24-00018-CV
• Status: Published

Opinion

ACCEPTED 05-24-00018-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/20/2024 11:00 AM RUBEN MORIN CLERK

NO. 401-51206-2022

IN THE MATTER OF § IN THE DISTRICT COURT FILED IN THE MARRIAGE OF § 5th COURT OF APPEALS § DALLAS, TEXAS VEDA SMITH MILES § 02/20/24 11:00:43 401ST JUDICIAL DISTRICTAM AND § Ruben Morin DONALD S. MILES § COLLIN COUNTY, Clerk TEXAS

AMENDED REQUEST FOR SUPPLEMENTAL CLERK’S RECORD

TO THE COLLIN COUNTY DISTRICT CLERK AND FIFTH COURT OF APPEALS RECEIVEDCLERK: IN 5th COURT OF APPEALS DALLAS, TEXAS COMES NOW Pro Se Respondent, DONALD S. MILES, in this underlying case, now 02/20/24 11:00:43 AM Appellant, files this Request for Supplemental Clerk’s Record pursuant to RuleRuben Morin 34.5(c)(1); Clerk

(c)(3); and (d) of the Texas Rules of Appellate Procedure. Appellant list below the full title of

the documents being requested with the dates they were filed/entered with the trial court.

No. Document Title Date NOTES 1 Pre-Trial Conference 1/20/2023 Document not included in Clerk Record. No order issued according to Judge 2 Final Hearing 1/26/2023 Coordinator Is this different from Motion for Continuance 3 Motion for Continuance 1/26/2023 on 01/20/2023? The Trial Court forgot to place on calendar 4 Pre-Trial Conference 4/14/2023 according to Judge Coordinator. 5 Pre-Trial Conference 4/21/2023 Judge's Docket Entry - Request copy of e-mail sent Informal Memorandum Ruling sent to parties 6 5/1/2023 to parties with property division decision; OTBF according to Judge Coordinator 7 Notice of Appearance of Counsel for Petitioner 8/17/2023 Document not included in Clerk Record. Correspondence Sent by Court - Judge Flint Request I request Judge Flint coordinator to add to 8 for Briefs of Respondent's Motions for New Trial 9/7/2023 Clerk's record and Modify, Correct, or Reform Correspondence Sent by Respondent - Email addressing Respondent’s Motion to Dismiss and Alternatively, Memorandum in Opposition to 9 10/11/2023 Document not included in Clerk Record. Petitioner’s Motion for Reconsideration of Court Order on Motions for New Trial and Modify, Correct, or Reform Notification of Returned Service for Case: 401-51206- Judge Flint coordinator state she does not 10 2022, In the Matter of the Marriage of Veda Miles 11/22/2023 know what the notifications are about. and Donald Miles for filing Proposed Order Notification of Returned Service for Case: 401-51206- Judge Flint coordinator state she does not 11 2022, In the Matter of the Marriage of Veda Miles 11/22/2023 know what the notifications are about. and Donald Miles for filing Amended Filing Additional request to include Petitioner 12 Notice Of Cross-Appeal 1/11/2024 Cross-Appeal.

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 1 OF 22 Amended Request for Supplemental Clerk’s Record Also attached in the below Appendices are supporting correspondence letters or emails to

support the entries in the above table. Original documents can be obtained from the Trial Court

if Appellant’s documents are not acceptable as submitted. This letter will also be filed with the

Fifth Court of Appeals to satisfy Rule 34.5(d) of the Texas Rules of Appellate Procedure.

Appendix A - Email chain with Judge Flint’s coordinator which I asked about certain documents

in the below table highlighted in red font and whether they can be added to the

Clerk’s Record.

Appendix B - Email Sent by Trial Court – Pre-Trial Conference set for April 14, 2023.

Appendix C - Email Sent by Trial Court - Memorandum Ruling on May 1, 2023.

Appendix D - Correspondence Sent by Trial Court - Judge Flint Request for Briefs of

Respondent's Motions for New Trial and Modify, Correct, or Reform on

September 7, 2023.

Appendix E - Correspondence Sent by Respondent - Email addressing Respondent’s Motion to

Dismiss and Alternatively, Memorandum in Opposition to Petitioner’s Motion for

Reconsideration of Court Order on Motions for New Trial and Modify, Correct,

or Reform on October 11, 2023.

Appendix F - Notification of Returned Service for Case: 401-51206-2022, In the Matter of the

Marriage of Veda Miles and Donald Miles for filing on November 22, 2023.

Rejected Appellant and Appellee filed Proposed Final Decree of Divorce orders.

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 2 OF 22 Amended Request for Supplemental Clerk’s Record Respectfully Submitted,

/s/ Donald S. Miles DONALD S. MILES, Pro Se 4305 Burnhill Drive Plano, Texas 75024 Tel: (972) 896-0156 dsmiles1@tx.rr.com

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing Letter of Designation / Request for Clerk’s Record was sent to:

LAW OFFICE OF LISA G. GARZA, P.C. Parkway Tower South 14160 Dallas Parkway Suite 870, Box 24 Dallas, Texas 75254 (214) 373-6556 (Telephone) (214) 369-5943 (Facsimile) lgarza@lisaggarzafamilylaw.com

Beth M. Johnson, Attorney at Law 8150 N. Central Expressway, Suite 1255 Dallas, Texas 75206 (972)467-5847(Cell) beth@bethmjohnson.com

via e-mail and e-service in compliance with the Texas Rules of Civil Procedure 21 and 21a on February 20, 2024.

/s/ Donald S. Miles Donald S. Miles, Pro Se

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 3 OF 22 Amended Request for Supplemental Clerk’s Record APPENDIX A Email Request to Correct Clerk Record

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 4 OF 22 Amended Request for Supplemental Clerk’s Record CAUSE NO. 401-51206-2022; IMMO MILES PAGE 5 OF 22 Amended Request for Supplemental Clerk’s Record CAUSE NO. 401-51206-2022; IMMO MILES PAGE 6 OF 22 Amended Request for Supplemental Clerk’s Record CAUSE NO. 401-51206-2022; IMMO MILES PAGE 7 OF 22 Amended Request for Supplemental Clerk’s Record CAUSE NO. 401-51206-2022; IMMO MILES PAGE 8 OF 22 Amended Request for Supplemental Clerk’s Record APPENDEX B Pre-Trial Conference

From: Tammy Sharkey Sent: Friday, April 14, 2023 9:58 AM To: Sharon Dose Cc: Marilea Lewis Subject: RE: IMMO Miles; Cause No. 401-51206-2022

I am so sorry. This never made it to our calendar.

It may be about 10:30 before we can get to you.

Tammy Sharkey is inviting you to a scheduled Zoom meeting.

Topic: Tammy Sharkey's Zoom Meeting Time: Apr 14, 2023 09:00 AM Central Time (US and Canada)

Join Zoom Meeting https://txcourts.zoom.us/j/88221103045

Meeting ID: 882 2110 3045 One tap mobile +13462487799,,88221103045# US (Houston) +12532050468,,88221103045# US

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CAUSE NO. 401-51206-2022; IMMO MILES PAGE 9 OF 22 Amended Request for Supplemental Clerk’s Record Meeting ID: 882 2110 3045 Find your local number: https://txcourts.zoom.us/u/kfxqWZ9lY

Join by SIP 88221103045@zoomcrc.com

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Join by Skype for Business https://txcourts.zoom.us/skype/88221103045

Thank you, Tammy Sharkey 401st District Court Coordinator tlsharkey@co.collin.tx.us 972-548-4241 https://www.collincountytx.gov/district_courts/Pages/401dc.aspx

NOTE: All email correspondence relating to pending cases will be filed with the District Clerk for inclusion in the record of the case. Any communication to the Court or staff via email must comply with Rules 21 and 21a, T.R.C.P., and to do so by the fastest means available to the other affected parties or counsel. The provisions of Canon 3B(8) of the Code of Judicial Conduct should be carefully reviewed before any person connected with a case attempts any communication with the judge or court personnel.

From: Sharon Dose [mailto:sharon@d-elaw.com] Sent: Friday, April 14, 2023 9:54 AM To: Tammy Sharkey Cc: Marilea Lewis Subject: IMMO Miles; Cause No. 401-51206-2022

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 10 OF 22 Amended Request for Supplemental Clerk’s Record Good morning and HAPPY FRIDAY!!

Is there a zoom code for the pretrial today?

Sharon L. Dosé Paralegal

4311 Oak Lawn Avenue, Suite 600, Dallas, Texas 75219 6860 North Dallas Parkway, Suite 200, Plano, Texas 75024 201 Main Street, Suite 600, Fort Worth, Texas, 76102

Dallas 214-416-9010 | Plano 972-406-1200 | Ft. Worth 817-952-3155 Fax 214-416-9005 | www.Duffee-Eitzen.com

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 11 OF 22 Amended Request for Supplemental Clerk’s Record APPENDIX C MEMORANDUM RULING

From: Tammy Sharkey Sent: Monday, May 1, 2023 11:55 AM To: 'vsmiles@tx.rr.com' ; Kay Carranco Subject: RE: Cause No. 401-51206-2022; IMMO Miles - Pretrial

Good afternoon,

Please see Judge Flints ruling below.

Following in my decision in this matter:

1. Divorce is granted on general insupportability grounds 2. Name change is granted 3. No evidence was offered on North Carolina real estate’s value. Received during marriage and therefore community presumption applies unless clear and convincing evidence offered to show otherwise. W testified that they were a gift from her parents. Deeds in name of parents and only W’s name on them. North Carolina is a separate property state and real estate in North Carolina subject to North Carolina law. Separate property therefore proven by clear and convincing evidence. North Carolina real estate therefore awarded to Was her separate property. W is awarded all accounts receivable from leases, etc., related to such properties. 4. 1996 Kawasaki awarded to H as his separate property. This award includes all fixtures and equipment which may be on those properties (e.g. farming equipment). 5. Even though some of 401ks preceded marriage, no adequate tracing for separate property portion, if any, and therefore all community. Because testimony showed more or less equal values in 401ks/IRAs in each parties names, each party is awarded 100% of the 401ks/IRAs/Retirement Plans in their names. 6. All financial accounts in either parties’ names are divided 50/50. These include: 1. Merrill CMA 2. BofA x2062 3. BofA x4487 4. BofA unknown 7. For purposes of this ruling, the family homestead is valued at $600,000. After closing expenses (realtor, general closing costs, necessary repairs for sale, receivership fee (if not realtor), and $10,000 toward H’s attorney’s fees (H’s attorney assigned to preparing final decree and preparing any documents related to house receivership/sale), 60% of net awarded to W and 40% to H. Uneven split justified by (a) contributions to mortgage, etc. by W over time and (b) W’s current disability. House to be sold as follows: 1. Parties shall cooperate in maintaining home in showable condition until sold. 2. The parties shall confer and appoint a realtor to sell the property by 5:00 PM on May 12, 2023. The home shall be listed at a price agreed between the parties and, if no agreement, for $600,000. If the Realtor believes that a different price can be obtained

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 12 OF 22 Amended Request for Supplemental Clerk’s Record which is higher, that price shall be used if no agreement. If the Realtor believes a lower price should be set and there is no agreement, the Realtor shall, through H’s attorney, file a Motion with the Court stating his/her opinion of price and the Court shall consider it. The cost of such application (the attorney’s fees) shall be added to the $10,000 attorney’s fee deduction. 3. If the parties do not appoint a realtor by May 12th or cannot agree on a listing price or, after the realtor has been appointed, cannot agree on repairs, etc., requested by the realtor, or, if an offer is made which is recommended by the realtor, will not agree on same, the following procedure shall apply: 1. The realtor, using H’s attorney, shall apply to the Court for the appointment of a receiver, which may be the realtor if the realtor agrees; 2. A receiver shall be thereafter appointed, with or without a hearing as the Court may determine, upon such terms as the Court finds necessary and appropriate in the circumstances. 8. Both parties may remain in the house pending sale and mutual injunctions not to harass the other. If one party leaves, the other party can remain in the house but shall be charged a fair rental value equal to $2,000 a month until the house is sold, which amount shall be deducted from their share at closing, added back as a “net proceeds” and divided as set forth above. In addition, the person remaining in possession shall pay all utilities, shall pay for house insurance, and shall bear all costs of real estate taxes accruing at closing during that period of occupancy. 9. H is awarded the life insurance in his name, including the cash surrender value, and the disability insurance in his name. 10. H is awarded the 2007 Lexus. W is awarded the 2001 Mercedes (the gift W made to the son is voided). 11. The master bedroom suite of furniture is awarded to W. 12. Any furniture received by gift by a party from a third party is awarded to the party receiving the gift. 13. The remaining furniture shall be divided by agreement; provided, however, if no agreement can be reached by May 31, the furniture will be sold at public “estate” sale to be organized by the realtor (or receiver) and the proceeds split 50/50. If the parties have agreed on some division by May 31 and the remaining furniture is of low value, the furniture shall be donated to a charity of H’s choice. Furniture includes electronics, dishes, utensils, etc. 14. Each party is awarded the clothing, jewelry, and personal items in their possession. 15. W is responsible for all debts incurred by her since March 1, 2022. H is responsible for all debts incurred by him since March 1, 2022. If not already filed, each party shall file 2022 taxes as married individuals filing separately and W shall file as head of household (i.e. to the extent H or W have drawn down on their 401ks since the divorce, they are solely responsible for all taxes incurred with respect thereto). W’s health care expenses can be claimed 100% by her. Any other deductible expenses (i.e. real estate taxes) shall be shared 50/50. H is also responsible for all of his student loan and attorney’s fees. W is responsible for her attorney’s fees. 16. No spousal support. 17. If an asset remains as undivided, it is divided 50/50.

George B. Flint District Judge 401st Judicial District Court

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 13 OF 22 Amended Request for Supplemental Clerk’s Record Collin County, Texas

Thank you, Tammy Sharkey 401st District Court Coordinator tlsharkey@co.collin.tx.us 972-548-4241

https://www.collincountytx.gov/district_courts/Pages/401dc.aspx

NOTE: All email correspondence relating to pending cases will be filed with the District Clerk for inclusion in the record of the case. Any communication to the Court or staff via email must comply with Rules 21 and 21a, T.R.C.P., and to do so by the fastest means available to the other affected parties or counsel. The provisions of Canon 3B(8) of the Code of Judicial Conduct should be carefully reviewed before any person connected with a case attempts any communication with the judge or court personnel.

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 14 OF 22 Amended Request for Supplemental Clerk’s Record APPENDIX D Trial Court Request for Briefs on North Carolina Law

From: Judge George Flint Sent: Thursday, September 7, 2023 1:09 PM To: beth@bethmjohnson.com; Marilea Lewis Cc: Tammy Sharkey Subject: 401-51206-2022; Miles

Counselors, Mr. Miles has filed a Motion for New Trial or to Correct/etc my rulings.

I realized that my prior rulings were based in part on an understanding of North Carolina law which may or may not be in error.

I am asking both of you to submit me briefs (they can be short) with relevant case and/or statutory law from North Carolina addressing the following: 1. Is North Carolina a community or separate property state or something else? 2. Under North Carolina law, does a deed in one person’s name presumptively that person’s separate property? 3. Because the North Carolina real estate was acquired during the marriage, which law applies to the characterization of that property as separate or community -- North Carolina law or Texas law? 4. Under North Carolina law, does the recitation of nominal consideration in the deed foreclose a finding of gift or is it a question of fact in all circumstances? 5. With respect to the gift analysis, does North Carolina law apply (because of the location of real property) or Texas law apply (because it is being determined in the context of dissolution of the Texas marriage)?

Please have this in my hands by Friday, September 22. It is my intent to rule on all pending matters by the end of this month.

Thank you.

George B. Flint District Judge 401st Judicial District Court Collin County, Texas

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 15 OF 22 Amended Request for Supplemental Clerk’s Record APPENDIX E Correspondence Email on Respondent’s Motion to Dismiss and Response in Opposition to Petitioner’s Motion for Reconsideration

From: Tammy Sharkey Date: 10/11/23 11:43 AM (GMT-06:00) To: 'Donald Miles' Subject: RE: . 401-51206-2022 - Respondent's Motion to Dismiss and Alternatively, Memorandum in Opposition to Petitioner's Motion for Reconsideration of Court Order on Motions for New Trial and Modify, Correct, or Reform

Please make sure ALL parties are included In all emails.

Judge did see this – his ruling stands.

Thank you,

Tammy Sharkey

401st District Court Coordinator

tlsharkey@co.collin.tx.us

972-548-4241

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 16 OF 22 Amended Request for Supplemental Clerk’s Record https://www.collincountytx.gov/district_courts/Pages/401dc.aspx

All hearings in the 401st are scheduled as in-person

unless other arrangements have been made with the court.

If you need to set a hearing please email me at tlsharkey@co.collin.tx.us

NOTE: All email correspondence relating to pending cases will be filed with the District Clerk for inclusion in the record of the case. Any communication to the Court or staff via email must comply with Rules 21 and 21a, T.R.C.P., and to do so by the fastest means available to the other affected parties or counsel. The provisions of Canon 3B(8) of the Code of Judicial Conduct should be carefully reviewed before any person connected with a case attempts any communication with the judge or court personnel.

From: Donald Miles [mailto:dsmiles1@tx.rr.com] Sent: Wednesday, October 11, 2023 9:08 AM To: Tammy Sharkey Cc: 'dsmiles1' Subject: . 401-51206-2022 - Respondent's Motion to Dismiss and Alternatively, Memorandum in Opposition to Petitioner's Motion for Reconsideration of Court Order on Motions for New Trial and Modify, Correct, or Reform

***** WARNING: External Email. Do not click links or open attachments that are unsafe. *****

Good morning Ms. Sharkey,

I saw that my “Respondent’s Motion to Dismiss and Alternatively, Memorandum in Opposition to Petitioner’s Motion for Reconsideration of Court Order on Motions for New Trial and Modify, Correct, or Reform” document was not accepted until 11:14 AM on October, 10, 2023 (yesterday). Judge Flint had already made a ruling on my case 11 minutes earlier. Did he get to review the above motion before he made his decision? The document was accepted into the court system around 2PM on October, 8, 2023 (Monday). Below are attachments to document what I described above. I did leave you a voice message around 8:45AM today. If Judge Flint did not review this document before his ruling, I am requesting that he review the document and notify me of his decision.

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 17 OF 22 Amended Request for Supplemental Clerk’s Record EXHIBIT A

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 18 OF 22 Amended Request for Supplemental Clerk’s Record EXHIBIT B

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 19 OF 22 Amended Request for Supplemental Clerk’s Record Thank you,

Donald S. Miles

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 20 OF 22 Amended Request for Supplemental Clerk’s Record APPENDIX F Rejected Appellant and Appellee Proposed Final Decree of Divorce

CAUSE NO. 401-51206-2022; IMMO MILES PAGE 21 OF 22 Amended Request for Supplemental Clerk’s Record CAUSE NO. 401-51206-2022; IMMO MILES PAGE 22 OF 22 Amended Request for Supplemental Clerk’s Record Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules.

Envelope ID: 84681159 Filing Code Description: Letter Filing Description: AMENDED REQUEST FOR SUPPLEMENTAL CLERK???S RECORD Status as of 2/20/2024 2:36 PM CST

Associated Case Party: Donald Miles

Name BarNumber Email TimestampSubmitted Status

Donald Miles dsmiles1@tx.rr.com 2/20/2024 11:00:43 AM SENT

Associated Case Party: VedaSmithMiles

Veda SmithMiles vsmiles@tx.rr.com 2/20/2024 11:00:43 AM SENT

Beth MJohnson beth@bethmjohnson.com 2/20/2024 11:00:43 AM SENT

Lisa GGarza lgarza@lisaggarzafamilylaw.com 2/20/2024 11:00:43 AM SENT