Eugenio Espinoza Martinez v. Kathleen Anne Lozano Martinez

Opinion

January 12, 2015

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO.G3-1240791-CV

EugeaioEspinoza Martinez, Appellant v.

KatUeca Anne LasauroMartinet AppeBee

fROM THE DISTRICTCOURT OFWILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT NO, 12>1114-F425, HONORABLE MARKJ. SILVERSTONE, JUDGE PRESIDING

^IM^AWP1IM OPINION

PER CURIAM

Appellee Kathleen Anne Lozano Martinez has iwtified (Ids Court n^ to divorce decree in the imdeitying cause should be reversed because Eugenio Espinoza Martinez did not receive adequate noticeofthe final hearing.

We abate tins appeal and remand this cause to the trial court for ahearing and findings about vAether Engenio Espmra Martinez received ad

Before Justices Puryear, Pemberton, and Rose Abated

Filed: June27,2013 District

0?)

CAUSE NO. 12-1114-F425

IN THE MATTER OF IN THE 425TH JUDICIAL THE MARRIAGE OF

KATHLEEN ANNE LOZANO MARTINEZ DISTRICT COURT OF

AND EUGENIO ESPINOZA MARTINEZ

AND IN THE INTEREST OF WILLIAMSON COUNTY/ TEXAS

AFFIDAVIT OF EUGENIO ESPINOZA MARTINEZ

TO THE HONORABLE JUDGE OF SAID COURT:

I, Eugenio Espinoza Martinez, Respondent in the aforementioned cause, present this affidavit to this Honorable Court as follows:

I would first like to address this Honorable Court of the in consistencies and errors found within the court order dated March 21/ 2014 siqned by the Hon. Judqe Lambeth.

1) Note a chanqe of address letter was previously filed with this court and the 3rd Court of Appeals in January 2014.

It is also indicated on the cover letter submitted with the court order.

2) The name of the Respondent is Euqenio Espinoza Martinez, not Eugenia.

3) The "Final Hearing" date was November 7, 2012, not Nov ember 1, 2012.

In liq'ht of the upcominq November 29, 2014 hearing to deter mine whether I received adeauate notice of the November 7, 2012 "Final Hearinq" in this matter/ I address this court bv stating that I did not receive adequate notice. The followinq facts are presented in support:

1) The "notice of hearing" was signed and sent bv certified mail (#7011 0470 0003 4313 3625) by the Petitioner on September 29/ 2012. Please see EXHIBIT A and B-

2) Delivery was confirmed on October 1/ 2012 at 12:02 p.m.

at the McConnell Unit in Beeville, Texas. Please see EXHIBIT C.

3) Accordinq to the Texas Department of Criminal Justice (TDCJ)

mailroom rules and procedures, after the mailroom signs for certified mail the inmate is thereafter given a lay-in to go to the mailroom the followinq dav to retrieve it- Because the Briscoe and the McConnell Unit mailrooms have not pro vided a response to my requests/ see EXHIBIT D and E, I cannot determine the exact date that the notice was received, only that it was received on or about October 2nd or 3rd 2012 It can be determined, however, that the notice was received after the 45-day requisite under Vernon's Ann. Texas Rules Civ. Proc., Rule 245- If the court requires the exact date that I received the notice of final hearinq, I request

(X)

an extention so that I may file the'appropriate grievances against the Briscoe and McConnell Unit mailrooms for failing to provide the information requested, and thereafter, provide the information upon its retrieval.

Based on the facts and exhibits presented herein, a factual basis exists to conclude that I did not receive adequate notice of the Final Hearing.

Inmate Declaration

I» Euqenio Espinoza Martinez, currently incarcerated with the Texas Department of Criminal Justice - Dolph Briscoe Unit locatedin Dilley/ Texas, declare under penalty of perjury_that the information herein is true and correct to the best of my ability-

Siqned this /Spf- 6aV of MaV 2014.

Eugenio EspinozaLJnartmez Certificate of Service

As required by order dated March 21, 2014 by the Hon. Judqe Lambeth, I certify that a copy of this affidavit and supporting exhibits was mailed to Petitioner via reqular mail on this the /Szpfd day of May 2014.

Euqenio Espmo Martinez # 1686937

Dolph Briscoe Unit

1459 West Hwy. 85

Dilley, Texas 78017

CirO

EXHIBIT A

NO. 12-1114-F425

IN THE MATTER OF § IN THE DISTRICT COURT THE MARRIAGE OF §

KATHLEEN ANNE LOZANO § MARTINEZ § AND § 425th JUDICIAL DISTRICT EUGENIO ESPINOZA MARTINEZ § §

AND IN THE INTEREST OF ,A WILLIAMSON COUNTY, TEXAS CHILD

NOTICE OF FINAL HEARING

NOTICE is hereby given to Respondent, EUGENIO ESPINOZA MARTINEZ, that this matter issetfor Final Hearing, before this Court atthe Williamson County Criminal Justice Annex, 405 S. Martin Luther King Blvd., Georgetown, Texas at 9:00 a.m. on *\ 1H\/4/vm iuM—l ,oP IOs

Respectfully submitted,

KATHLEEN ANNE LOZANO MARTINEZ

CERTIFICATE OF SERVICE

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CAUSE NO. 12-1114-F425

IN THE MATTER OF IN THE 425TH JUDICIAL THE MARRIAGE OF §

KATHLEEN ANNE LOZANO MARTINEZ § DISTRICT COURT OF AND § EUGENIA ESPINOZA MARTINEZ §

AND IN THE INTEREST OF § WILLIAMSON COUNTY, TEXAS

FINDING OF FACTS

On March 24, 2014 this court entered the attached order setting a hearing for May 30, 2014 for the purpose of determining whether Eugenio Espinoza Martinez received adequate notice of the November 7, 2012 Final Hearing.

On May 30, 2014, no one appeared for the hearing however, pursuant to the March 24, 2014 Order Mr. Martinez submitted an affidavit with attached documents.

After considering Mr. Martinez's affidavit and the record of the case, the court makes the following findings of fact.

The court FINDS that Mr. Martinez was sent the notice of hearing on September 29, 2012 notifying him of the hearing scheduled for November 7, 2012. The court FINDS that the notice of hearing was sent 39 days in advance of the hearing and was not sent in accordance with Texas Rules of Civil Procedure 245.

The court FINDS and CONCLUDES that Eugenio Espionoza Martinez did NOT receive adequate notice of the final hearing.

Dated: J

FILED

,ambeth o'clock.

Judge, 425rth Judicial District Court Williamson County, Texas ($$$) jun 11 m District Clerk, Williamson Co., I

(£30

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CAUSE NO. 12-1114-F425

IN THE MATTER OF § IN THE 425TH JUDICIAL THE MARRIAGE OF § •§

KATHLEEN ANNE LOZANO MARTINEZ § DISTRICT COURT OF AND § EUGENIA ESPINOZA MARTINEZ § §

AND IN THE INTEREST OF § § WILLIAMSON COUNTY, TEXAS

Pursuant to the Memorandum Opinion of the Texas Court of Appeals, Third District, at Austin, filed June 27,2013 this Court makes the following orders.

The Respondent filed a Motion for Issuance of a Bench Warrant or in the Alternative Viable Means in Suit Affecting Parent ChildRelationship. The Court has considered that motion. It is granted in part anddenied in part. The Court denies the requested benchwarrant. The Court has reviewedthis matter subject to the guidelines set out in Zuniga v. Zuniga, 13 S.W. 3d 798 (Tex. App. - SanAntonio 1999). Considering those matters and all other pleading and facts before the Court, the Court makes the following conclusions and orders regarding the proceeding of this case.

Respondent will be allowed to offer any evidence as towhether Eugenio Espinoza Martinez received adequate notice of the November 1,2012 Final Hearing, by deposition or affidavit. Respondent is to send by mail any such written information he wants to bring before the Court. The Court will review such informationas if presented by Respondentas evidence at the appropriate time, and will consider same in its deliberations.

The Court will continue to be mindful of the issues set out in Zuniga. If the facts show that the presence of Respondent is necessary to determine credibility bydemeanor or otherwise of any witness, then appropriate further orders will be entered.

Atany point should the facts develop, orthe issues become substantial such thatthe presence of Respondent is needed, the Court will recess thehearing. Atthat point the Court will enter all further orders required to protect Respondent pursuant to Zuniga.

Accordingly this matter is set for Hearing on MAY 30,2014 AT 9:00 a.m. in the 425th District Court of'Williamson County, Texas. The purpose of the hearing is to determine whether Eugenio Espinoza Martinez received adequate notice of the Novemberpujggjp A Final Hearing held in this matter. <.v(Wcf^o'cloclLi^ MAR 2«i 20W ijj0

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/••-•N r\

Any affidavit, or otherdocument which Respondent desires to be considered by the Court, shall • be sent to this Court at 405 M.L.K. Box 22, Georgetown, Texas 78626. SUCH DOCUMENTS MUST BE RECEIVED BY 5:00 p.m. on MAY 28,2014. They will be filed with the official record of the Court.

A copy ofthis order will be mailedto the Respondent, EUGENIA ESPINOZA MARTINEZ, TDCJ-ID#1686937, Eastham Unit, 2665 PrisonRd. 1, Lovelady, Texas 75851-5609.

The Respondent is ordered to properly serveon Petitioner, all letters, motions or otherpleadings, presented to this court.

It is so ordered. SIGNED and ENTERED this the 7A& day of March, 2014.

Bets^J£>Lambeth Judge, 425,b Judicial District Court Williamson County, Texas

id)

Lisa David

DISTRICT CLERK

WILLIAMSON P.O. Box 24, Georgetown, Texas 78627 COUNTY 1848 512.943.1212 Fax 512.943.1222 BILL OF COSTS

12-1114-F425 IN THE 425TH JUDICIAL DISTRICT COURT

IN THE MATTER OF THE MARRIAGE OF KATHLEEN ANNE LOZANO AND EUGENIO ESPINOZA MARTINEZ AND IN THE INTEREST OF , A CHILD

6/11/2014

REQUESTED BY COA

COURT COSTS - DIRECT FEES AMOUNT Clerks Record Fee 0.00

1, Lisa David, Clerk of the District Courts in and for Williamson County, Texas, hereby certify the above to be a correct account of the costs due in the above entitled and numbered cause up to this date.

Given under my hand and official seal on this the 11th day of June, 2014.

LISA DAVID, DISTRICT CLERK ^WILLIAMSON COUNTY, TEXAS

12-1114-F425

(&*)

DECLARATION IN SUPPORT OF INABILITY TO PAY COSTS

The following declaration is in support of Respondent's inability to pay court costs.

Now respectfully comes Eugenio Espinoza Martinez/ TDCJID# 1686937 and declares that "I am unable to pay the court costs in this action and request leave of the court to proceed in forma pauperus in this accompanying action and would show the court the following:

1) I am presently incarcerated in the McConnell Unit of the Texas Department of Criminal Justice Institutional Divi sion where I am not permitted to earn or handle money.

2) I have no source of income or spousal income.

3) I currently have $ 6x&* credited to me in my inmate trust fund.

4) During my incarceration in the TDCJID I have received approximately Sis'—Iliad per month as gifts from family and friends.

5) I neither own nor have an interest in any realty, stocks, bonds, or bank accounts and I receive no interest or dividend income from any source.

6) I have 1 dependent.

7) I have total debts of approximately S20-30k .

8) I do not owe restitution.

9) My monthly expenses are approximately S250-S300.

I, Eugenio Espinoza Martinez TDCJID# 1686937, being presently incarcerated in the McConnell Unit of TDCJID in Bee County, Texas, verify and declare under penalty or perjury that the foregoing state ments are true and correct, Executed on this the p-ST day of noAsS-z-r , 2012." ^jgr* V FILED

.'tA

ETtigeni6 ESpin6za Martinez"

DS1686937 .

o'otock Emily Drive ,le, Texas 78102

NOV 01 2012

District Clerk, Wlltlamjon Co., TX, \&l)

NO. 12-1114-F425

IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF

KATHLEEN ANNE LOZANO MARTINEZ AND 425TH JUDICIAL DISTRICT EUGENIO ESPINOZA MARTINEZ

AND EN THE INTEREST OF ,A WILLIAMSON COUNTY, TEXAS CHILD

FINAL DECREE OF DIVORCE

On November 7,2012 the Court heard this case.

Appearances Petitioner, Kathleen Anne Lozano Martinez, appeared in person, and announced ready for trial.

Respondent, Eugenio Espinoza Martinez, although duly and properly cited, did not appear and wholly made default.

Record

The recordof testimonywasdulyreported bythecourtreporter forthe425thJudicial District Court.

Jurisdiction and Domicile

The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence,

finds that ithas jurisdiction ofthis case and ofall the parties and that atleast sixty days have elapsed since the date the suit was filed. ^^Q^o'c/ock^A^ The Court further finds that, at the time this suit was filed, Petitioner had b^h adnJMci^^fln

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"^ssr-wKEso"Co.,tx

46

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ofTexas for the preceding six-monthperiod and aresident ofthe countyin whichthis suitwas filed for the preceding ninety-day period. All persons entitled to citation were properly cited. Jury A jury was waived, and questions of fact and of law were submitted to the Court.

Divorce

IT IS ORDERED AND DECREED that Kathleen Anne Lozano Martinez, Petitioner, and Eugenio Espinoza Martinez, Respondent, are divorced and that the marriage between them is dissolved on the ground of insupportability. Child ofthe Marriage The Court finds that Petitioner and Respondent arethe parents of the following child:

Name: Sex: Female

Birth date: Home state: Texas

The Court finds no other children of the marriage are expected.

Parenting Plan The Court finds that the provisions in this decree relating to the rights and duties of the parties with relation to the child, possession ofand access to the child, child support, andoptimizing the development of a close and continuing relationship between each party and the child constitute the parenting plan established by the Court.

Conservatorship The Court, having considered the circumstances ofthe parents and ofthe child, findsthatthe

47

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following orders are in the best interest of the child.

IT IS ORDERED that Kathleen Anne Lozano Martinez is appointed Sole Managing Conservator and Eugenio Espinoza Martinez is appointed Possessory Conservator ofthe following child: .

IT IS ORDERED that, at all times, Kathleen Anne Lozano Martinez, as a parent sole managing conservator, shall have the following rights:

1. the rightto receiveinformation from anyotherconservator ofthechildconcerning the health, education, and welfare of the child;

2. the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child;

3. the right of access to medical, dental, psychological, and educational records of the child;

4. the right to consult with a physician, dentist, or psychologist of the child;

5. the right to consult with school officials concerning the child's welfare and educational status, including school activities;

6. the right to attend school activities;

7. the right to be designated on the child's records as a person to be notified in case ofan emergency;

8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety ofthe child; and

9. the right to managethe estateofthe childto the extent the estatehas been created by the parent or the parent's family.

IT IS ORDERED that, at all times, Eugenio Espinoza Martinez, as a parent possessory conservator, shall have the following rights:

1. the rightto receiveinformation from anyotherconservator ofthe childconcerning the health, education, and welfare of the child;

2. the right to confer with the other parent to the extent possible before making a

48

(3fi>

decision concerning the health, education, and welfare of the child;

3. the right of access to medical, dental, psychological, and educational records ofthe child;

4. the right to consult with a physician, dentist, or psychologist of the child;

5. the right to consult with school officials concerning the child's welfare and educational status, including school activities;

6. the right to attend school activities;

7. the right to be designated on the child's recordsas a person to be notified in caseofan emergency; and

8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the child.

IT IS ORDERED that, at all times, Kathleen Anne Lozano Martinez, as a parent sole managing conservator shall have the following duties:

1. the duty to inform the other conservatorofthe child in a timely manner ofsignificant information concerning the health, education, and welfare of the child; and

2. the duty to inform the other conservator ofthe child ifthe conservator resides with for at least thirty days, marries, or intends to marry a personwho the conservatorknows is registeredas a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the personor on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED that the notice must include a description ofthe offense that is the basisofthe person's requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

IT IS ORDERED that, at all times, Eugenio Espinoza Martinez, as a parent possessory conservator, shall have the following duties:

1. the duty to inform the otherconservator ofthe child in atimely mannerofsignificant information concerning the health, education, and welfare ofthe child; and

2. the duty to inform the other conservator ofthe child ifthe conservator resides with for

49

6»>

atleast thirty days, marries, orintends to marry aperson whotheconservator knowsis registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently charged with an offense for which on conviction the person would be required to register under thatchapter. IT IS ORDERED that this information shall be tendered in the form of a notice made as soon as practicable, but not later than the fortieth day after the date the conservator of the child begins to reside with the person or on the tenth day after the date the marriage occurs, as appropriate. IT IS ORDERED thatthenoticemust include a description of the offensethat is the basis ofthe person's requirement to register as a sex offender or of the offense with which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE PUNISHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO PROVIDE THIS NOTICE.

IT IS ORDERED that, during her periodsofpossession,Kathleen Anne Lozano Martinez, as a parent sole managing conservator, shall have the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the child;

2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

3. theright to consent for the childto medical and dental care not involvingan invasive procedure; and

4. the right to direct the moral and religious training ofthe child.

IT IS ORDERED that, during his periods of possession, Eugenio Espinoza Martinez, as a parent possessory conservator, shall have the following rights and duties:

1. the duty of care, control, protection, and reasonable discipline of the child;

2. the duty to support the child, including providing the child with clothing, food, shelter, and medical and dental care not involving an invasive procedure;

3. theright toconsent for thechild tomedical and dental care notinvolving an invasive procedure; and

4. the right to direct the moralandreligious training of the child.

ITISORDERED that Kathleen AnneLozano Martinez, as parent sole managing conservator, shall have the following exclusive rights and duty:

1. the right to designate the primary residence of the child;

50

(3^)

2. the right to consent to medical, dental, and surgical treatment involving invasive procedures;

3. the right to consent to psychiatric and psychological treatment of the child;

4. the right to receive and give receipt forperiodic payments forthe supportofthe child and to hold or disburse these funds for the benefit of the child;

5. the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

6. the right to consent to marriage and to enlistment in the armed forces of the United States;

7. the right to make decisions concerning the child's education;

8. except as providedby section264.0111 of the Texas Family Code, the rightto the services and earnings of the child;

9. except when a guardian of the child's estate or a guardian or attorney ad litem has been appointed for the child, the right to act as an agent ofthe child in relation to the child's estate if the child's action is required by a state, the United States, or a foreign government; and

10. the duty to manage the estate ofthe child to the extent the estatehas been createdby community property or the joint property of the parents.

IT IS ORDERED that Kathleen Anne Lozano Martinez shall have the exclusive right and duty to prepare and.file income tax returns for the estate of .

IT IS ORDERED that Eugenio Espinoza Martinez shall furnish such information to Kathleen Anne Lozano Martinez as is requested to prepare federal income tax returns for the child's estate within thirty days of receipt of a written request for the information, and in no event shall the information be furnished later than March 1 of that year. As requested information becomes available after that date, it shall be furnished within ten days of receipt.

Possession and Access

No possessionorderat this time dueto Respondent, Eugenio EspinozaMartinez, incarceration. Upon

51

Q&

release, possession order shall be amended for all times agreed upon. po-Awv o^ c<c* r-e^«-<A£*"A-» W. Child Support *$$v)r\ ~""^^v* ©A- oSou»Jr\<^v\ tf*r«**\*ywJceJ' V>\^ yW^Hvcv . <£lU~ IT IS ORDERED that Eugenio Espinoza Martinez is obligated to pay and shall pay to

Kathleen Anne Lozano Martinez child support oftwo hundred fifty-one dollars ($251) per month, with the first payment being due and payableon December 1,2012 anda like payment being due and payable on the 1st day ofeach month thereafteruntil the first month following the date ofthe earliest occurrence of one of the events specified below:

1. the child reaches the age ofeighteen years or graduates from high school, whichever occurs later, subject to the provisions for support beyond the age of eighteen years set out below;

2. the child marries;

3. the child dies;

4. the parent-child relationship is terminated based on genetic testing that excludes the obligor as the child's genetic father;

5. the child enlists in the armed forces ofthe United States and begins active service as defined by section 101 of title 10 of the United States Code; or 6. the child's disabilities are otherwise removed for general purposes; or If the child is eighteen yearsofageandhas not graduated from high school,IT IS ORDERED that Eugenio Espinoza Martinez's obligationto pay child supportto Kathleen Anne Lozano Martinez shall not terminate but shall continue for as long as the child is enrolled-

1. under chapter 25 ofthe Texas Education Code in an accreditedsecondaryschoolin a program leading toward a high school diploma or under section 130.008 of the Education Code in courses for joint high school and junior college credit and is complying with the minimum attendance requirements of subchapter C of chapter 25 of the Education Code or

52

(&)

2. on a full-time basis in a private secondaryschool in a programleading toward a high school diploma and is complying with the minimum attendance requirements imposed by that school.

Withholding from Earnings

IT IS ORDERED that any employer of Eugenio Espinoza Martinez shall be ordered to withhold from earnings for child support from the disposable earnings ofEugenio Espinoza Martinez for the support of .

IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of Eugenio Espinoza Martinez by the employer andpaid in accordance with the order to thatemployer shall constitute a credit against the child support obligation. Payment of the full amount of child supportordered paidby this decreethroughthe means ofwithholding from earnings shall discharge the child support obligation. If the amount withheld from earnings and credited againstthe child support obligation is less than 100 percent of the amount ordered to be paid by this decree, the balancedue remains an obligationof Eugenio Espinoza Martinez, and it is hereby ORDERED that Eugenio Espinoza Martinez pay the balance due directly to the state disbursement unit specified below.

On this date the Court authorized the issuance of an Order/Notice to Withhold Income for Child Support.

Payment

IT IS ORDERED that all payments shall be made through the state disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791, and thereafter promptly remitted to Kathleen Anne Lozano Martinez for the support of the child. IT IS ORDERED that each party shall pay, when due, all fees charged to that party by the state

53

OS)

disbursement unit and any other agency statutorily authorized to charge a fee.

Change of Employment

IT IS FURTHER ORDERED that Eugenio Espinoza Martinez shall notify this Court and Kathleen Anne Lozano Martinez by U.S. certified mail, return receipt requested, of any change of address and ofany termination ofemployment. This notice shall be given no laterthan seven days after the change of address or the termination of employment. This notice or a subsequent notice shall also provide the current address of Eugenio Espinoza Martinez and the name and address ofhis current employer, whenever that information becomes available.

Clerk's Duties IT IS ORDERED that, on the request of a prosecuting attorney, the title IV-D agency, the friend ofthe Court, a domestic relations office, Kathleen Anne Lozano Martinez, Eugenio Espinoza Martinez, or an attorney representing Kathleen Anne Lozano Martinez or Eugenio Espinoza Martinez, the clerk ofthis Court shall cause a certified copy ofthe Order/Notice to Withhold Income for Child Support to be delivered to any employer.

Suspension ofWithholding from Earnings The Court finds that good cause exists that no order to withhold from earnings for child support should be delivered to any employer of Eugenio Espinoza Martinez as long as no delinquency or other violation of this child support order occurs and as long as the Office of the Attorney General Child Support Division is not providing services to Kathleen Anne Lozano Martinez. For the purpose of this provision, a delinquency has occurred if Eugenio Espinoza Martinez has been in arrears for an amount due for more than thirty days or the amount of the arrearages equals or is greaterthan the amount due for a one-month period. Ifa delinquency or other violation occurs or if the Office of the Attorney General Child Support Division begins providing

54

&)

services to Kathleen Anne Lozano Martinez, theclerk shall deliver theorder to withhold earnings as provided above.

ACCORDINGLY, IT IS ORDERED that,aslongas no delinquency orotherviolationofthis childsupport order occurs andaslongasthe OfficeoftheAttorney General ChildSupport Division is not providing services to Kathleen Anne Lozano Martinez, allpayments shall be madethrough the state disbursement unit and thereafter promptly remitted to Kathleen Anne Lozano Martinez for the support of the child. If a delinquency or other violation occurs or if the Office of the Attorney General Child Support Division begins providing servicesto Kathleen Anne Lozano Martinez, all payments shall be made in accordance withthe order to withhold earnings as provided above. Health Care

1. IT IS ORDERED that Kathleen Anne Lozano Martinez and Eugenio Espinoza Martinez shall each provide medical support forthe child as set out in this orderas additional child support for aslong asthe Court mayorder Kathleen AnneLozano Martinez and Eugenio Espinoza Martinez to provide support for thechild under sections 154.001 and 154.002 of the Texas Family Code. Beginning on the day Kathleen Anne Lozano Martinez and Eugenio Espinoza Martinez's actual orpotential obligation to support the child under sections 154.001 and 154.002 ofthe Family Code terminates, IT IS ORDERED that Kathleen Anne Lozano Martinez and Eugenio Espinoza

Martinez are discharged from the obligations set forth inthis medical support order, except for any failure by a parent to fully comply with those obligations before that date. IT IS FURTHER

ORDERED that the cash medical support payments ordered below are payable through the state disbursement unit and subject to the provisions for withholding from earnings provided above for

other child support payments.

2. Definitions -

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"Health Insurance" means insurance coverage that provides basic health-care services, including usual physician services, office visits, hospitalization, and laboratory, X-ray, and emergency services, that may be provided through a health maintenance organization or other private or public organization, other than medical assistance under chapter 32 of the Texas Human Resources Code.

"Reasonable cost" means the cost of health insurance coverage for a child that does not exceed 9 percent of Eugenio Espinoza Martinez 's annual resources, as described by section 154.062(b) of the Texas Family Code.

"Reasonable and necessary health-care expenses not paid by insurance and incurredby or on behalfofa child" include, without limitation, any copayments for office visits or prescription drugs, the yearlydeductible, if any, and medical, surgical, prescription drug, mental health-care services, dental, eye care,ophthalmological, and orthodonticcharges. These reasonable andnecessaryhealth care expenses do not include expenses for travel to and from the health-care provider or for nonprescription medication.

"Furnish" means:

a. to hand deliver the document by a person eighteen yearsofageor oldereither to the recipient or to a person who is eighteen years of age or older and permanently resides with the recipient;

b. to deliver the document to the recipient by certified mail, return receipt requested, to the recipient's last known mailing or residence address; or c. to deliver the document to the recipient at the recipient's last known mailing or residence address using any person or entity whose principal business is that of a courier or deliverer of papers or documents either within or outside

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the United States.

3. Findings on Health Insurance Availability- Having considered the cost, accessibility, and qualityofhealth insurance coverage available to the parties, the Court finds:

Health insurance is available or is in effect for the child through Kathleen Anne Lozano Martinez's employment or membership in a union, trade association, or other organization at a reasonable cost of $325.

IT IS FURTHER FOUND that the following ordersregardinghealth-care coveragearein the best interest of the child.

4. Provision of Health-Care Coverage -

As child support, Kathleen Anne Lozano Martinez is ORDERED to continue to maintain health insurance for the child who is the subject of this suit that covers basic health-care services, including usual physician services, office visits, hospitalization, laboratory, X-ray, andemergency services.

Kathleen Anne Lozano Martinez is ORDERED to maintain such health insurance in full force andeffect on the child who is the subjectofthis suit aslong aschild supportis payable forthat child. Kathleen Anne Lozano Martinez is ORDERED to convert any group insurance to individual coverage or obtain other health insurance for the child within fifteen days of termination of her employment or other disqualification from the group insurance. Kathleen Anne Lozano Martinez is ORDERED to exercise any conversion options or acquisition of new health insurance in such a manner that theresulting insurance equals orexceeds that ineffectimmediately before the change.

Kathleen Anne Lozano Martinezis ORDERED to furnish Eugenio EspinozaMartinez atrue and correct copy of the health insurance policy or certification and a schedule of benefits within 0 days of the signing of this order. Kathleen Anne Lozano Martinez isORDERED to furnish Eugenio

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EspinozaMartinez the insurance cards and any other forms necessary foruse ofthe insurance upon his release from the Texas Department of Corrections. Kathleen Anne Lozano Martinez is ORDERED to provide, within three days of receipt by her, to Eugenio Espinoza Martinez any insurance checks, other payments, or explanations of benefits relating to any medical expenses for the child that Eugenio Espinoza Martinez paid or incurred.

Pursuant to section 1504.051 ofthe Texas Insurance Code, it is ORDERED that ifKathleen Anne Lozano Martinez is eligible for dependent health coverage but failsto apply to obtaincoverage for the child, the insurer shall enroll the child on application ofEugenio Espinoza Martinez or others as authorized by law.

Pursuant to section 154.182 of the Texas Family Code, Eugenio Espinoza Martinez is ORDERED to pay Kathleen Anne Lozano Martinez cash medical support for reimbursement of healthinsurance premiums,as additional childsupport, ofthreehundredtwenty five dollars ($325) per month, with the first installment being due and payable on August 1,2012 and a like installment being due and payable on or before the first day ofeach month until the termination of current child support for her.

IT IS ORDERED that thecash medical support provisions ofthisorder shall bean obligation ofthe estate of Eugenio Espinoza Martinez and shall not terminate on his death.

Pursuant to section 154.183(c) of the Texas Family Code, the reasonable and necessary health-careexpenses ofthe child that arenot reimbursed by healthinsurance areallocated as follows: Kathleen Anne Lozano Martinez is ORDERED to pay 50percent and Eugenio Espinoza Martinez is ORDERED to pay50 percent ofthe unreimbursed health-care expenses if, atthetime the expenses are incurred, Kathleen Anne Lozano Martinez is providing health insurance as ordered.

The partywho incurs a health-care expense on behalf ofthe child is ORDERED to submit to

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the other party all forms, receipts, bills, statements, and explanations of benefits reflecting the uninsured portion ofthe health-care expenses within thirty days afterhe or she receives them. The nonincurring partyis ORDERED to pay his or her percentageofthe uninsured portion ofthe health careexpenses eitherby payingthe health-care provider directly orbyreimbursing the incurring party for any advance paymentexceedingthe incurring party's percentage ofthe uninsured portionofthe health-careexpenses within thirty days afterthe nonincurring party receivesthe forms,receipts,bills, statements, and explanations of benefits.

These provisions apply to all unreimbursed health-care expenses of the child who is the subjectof this suit that are incurred while childsupport is payable for the child.

5. Secondary Coverage - IT IS ORDERED that if a party provides secondary health insurance coverage for the child, both parties shall cooperate fully with regard to the handling and filing of claims with the insurance carrier providing the coverage in order to maximize the benefits available to the child and to ensure that the party who pays for health-care expenses for the child is reimbursed for the payment from both carriers to the fullest extent possible.

6. Compliance with Insurance Company Requirements - Each party is ORDERED to conform to all requirements imposed by the terms and conditions of the policy of health insurance covering the child in order to assure maximum reimbursement or direct payment by the insurance company ofthe incurredhealth-careexpense, including but not limited to requirements for advance notice to any carrier, second opinions, and the like. Each party is ORDERED to attempt to use "preferred providers," orservices withinthehealth maintenance organization, ifapplicable; however, this provision shall not apply if emergency care is required. Disallowance of the bill by a health insurer shall not excuse the obligation of either party to make payment; however, if a bill is disallowed orthe benefit reduced because ofthe failure ofa party to follow insurance procedures or

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requirements, IT IS ORDERED that the party failing to follow the insurance procedures or requirements shall be whollyresponsible for the increased portion ofthat bill.

7. Claims - Except as providedin this paragraph, the party who is not carrying the health insurance policy covering the childis ORDERED to furnish to the party carrying the policy, within fifteendays ofreceiving them,anyand all forms, receipts, bills,and statements reflecting thehealth care expenses the party not carrying the policyincurs on behalfof the child. In accordance with section 1204.251 and 1504.055(a)ofthe Texas Insurance Code, IT IS ORDERED that the partywho is not carrying the health insurance policy coveringthe child, at that party's option , may file any claims for health-care expenses directlywith the insurance carrier with and from whom coverage is provided for the benefit of the child and receive payments directly from the insurance company. Further, for the sole purpose of section 1204.251 ofthe Texas Insurance Code, Eugenio Espinoza Martinez is designated the managing conservator or possessory conservator ofthe child.

The party who is carrying the health insurance policy covering the child is ORDERED to submit all forms required by the insurance company for payment or reimbursement ofhealth-care expenses incurred by eitherparty on behalfofthe childto the insurance carrier within fifteendays of that party's receivingany form, receipt, bill, or statement reflecting the expenses.

8. Constructive Trust for Payments Received - IT IS ORDERED that any insurance payments received by a party from the health insurance carrier as reimbursement for health-care expenses incurredby or on behalfofthe child shall belong to the partywho paid those expenses. IT IS FURTHER ORDERED that the party receiving the insurance payments is designated a constructive trustee to receive any insurancechecks or payments forhealth-care expenses paidby the other party, and the party carrying the policy shall endorse and forward the checks or payments, along with any explanation of benefits received, to the other party within three days of receiving

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them.

9. WARNING - A PARENT ORDERED TO PROVIDE HEALTH INSURANCE OR TO PAY THE OTHER PARENT ADDITIONAL CHILD SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS TO DO SO IS LIABLE FOR NECESSARY MEDICAL EXPENSES OF THE CHILD, WITHOUT REGARD TO WHETHER THE EXPENSES WOULD HAVE BEEN PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR THE COST OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON BEHALF OF THE CHILD.

Miscellaneous Child Support Provisions Support as Obligation of Estate IT IS ORDERED that the provisions forchild supportin this decree shall be an obligationof the estate of Eugenio Espinoza Martinez and shall not terminate on the death of Eugenio Espinoza Martinez. Payments received for the benefit of the child, including payments from the Social Security Administration, Department of Veterans Affairs or other governmental agency or life insuranceproceeds, annuity payments, trustdistributions, orretirementsurvivor benefits, shallbe a credit against this obligation. Any remainingbalance ofthe child supportis anobligation ofEugenio Espinoza Martinez's estate.

Termination of Orders on Remarriage of Parties but Not on Death of Obligee The provisionsofthis decreerelating to current child supportterminateon the remarriage of Kathleen Anne Lozano Martinez to Eugenio Espinoza Martinez unless a nonparent or agency has been appointed conservator ofthe childunder chapter 153 oftheTexas Family Code. An obligation to pay child support under this decree does not terminate on the death of Kathleen Anne Lozano Martinez but continues as an obligation to .

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Information Regarding Parties The information required for each partyby section 105.006(a)ofthe Texas Family Code is as follows:

Name: Kathleen Anne Lozano Martinez Social Security number:

Driver's license number: Issuing state: Texas Current residence address:

Mailing address:

Home telephone number: ( Name of employer:

Address of employment: 1111 W. 6th Street Austin, Texas 78703 Work telephone number: (512) 414-3234

Name: Eugenio Espinoza Martinez Social Security number:

Driver's license number Issuing state: Texas Current residence address:

Mailing address:

Home telephone number: N/A Name of employer: N/A Address of employment: N/A Work telephone number: N/A EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN

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THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE.

THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.

FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.

Notice shall be given to the other party by delivering a copy of the notice to the party by registered orcertified mail,return receipt requested. Notice shall be givento theCourt by delivering

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a copy of the notice either in person to the clerk of this Court or by registered or certified mail addressed to the clerk at. Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registry, Contract Services Section, MC046S, P.O. Box 12017, Austin, Texas 78711-2017.

NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF A COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER'S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000.

WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.

FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S

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NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

Division ofMarital Estate The Court finds that no community propertyotherthan personaleffects has been accumulated by the parties.

IT IS ORDERED AND DECREED thatthe personal effects ofthe parties areawarded to the party having possession.

Division of Debt

Debts to Husband IT IS ORDERED AND DECREED that the husband,Eugenio Espinoza Martinez,shallpay, as a part of the division of the estate of the parties, and shall indemnify and hold the wife and her property harmless from any failure to so discharge, these items:

H-l. All debts, charges, liabilities, and other obligations incurred solely by the husband from and after May 2010 unless express provision is made in this decree to the contrary.

Debts to Wife IT IS ORDERED AND DECREED thatthe wife, KathleenAnne Lozano Martinez, shall pay, as a partofthe division ofthe estate ofthe parties,and shall indemnify and hold the husband and his property harmless from any failure to so discharge, these items:

W-1. All debts, charges, liabilities, and otherobligationsincurredsolely by the wife from and after May 2010 unless express provision is made in this decree to the contrary.

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Notice IT IS ORDERED AND DECREED that each party shall send to the other party,within three days ofits receipt, a copy ofany correspondence from acreditor or taxing authorityconcerning any potential liability ofthe other party.

Attorney's Fees To effect an equitabledivision ofthe estateofthe parties and as a partofthe division,and for services rendered in connection with conservatorship and support ofthe child, each party shall be responsible for his or her own attorney's fees, expenses, and costs incurred as a result of legal representation in this case.

Treatment/Allocation of Community Income for Year of Divorce IT IS ORDERED AND DECREED that, for the calendar year 2012, each party shall file an individual income tax return in accordance with the Internal Revenue Code.

IT IS ORDERED AND DECREED that for calendaryear 2012, each party shall indemnify and hold the other party and his or her property harmless from any tax liability associated with the reporting party's individualtax return forthatyearunlessthe parties have agreed to allocate theirtax liability in a manner different from that reflected on their returns.

IT IS ORDERED AND DECREED that each party shall furnish such information to the other party as is requestedto prepare federal income tax returns for 2012 within thirty days ofreceipt ofa written request for the information, and in no event shall the available information be exchanged later than March 1, 2013. As requested information becomes available after that date, it shall be provided within ten days of receipt.

IT IS ORDERED AND DECREED that all payments made to the other party in accordance with the allocation provisions for payment of federal income taxes contained in this Final Decree of

m

Divorce are not deemed income to the party receiving those payments but are part of the property division and necessary for a just and right division of the parties' estate. Discharge from Discovery Retention Requirement IT IS ORDERED AND DECREED that the parties and their respective attorneys are discharged from the requirement of keeping and storing the documents produced in this case in accordance with rule 191.4(d) of the Texas Rules of Civil Procedure. Decree Acknowledgment Petitioner, Kathleen Anne Lozano Martinez, and Respondent, Eugenio Espinoza Martinez, each acknowledge that before signing this Final Decree ofDivorce they have readthis FinalDecree of Divorce fully and completely, have hadthe opportunity to ask any questions regarding the same, and fully understand that the contentsofthis Final Decree of Divorceconstitutea full andcomplete resolution of this case. Petitioner and Respondent acknowledge that they have voluntarily affixed their signatures to this Final Decree of Divorce, believing this agreement to be a just and right division ofthe marital debt andassets, andstatethatthey have not signedby virtueofanycoercion, any duress, or any agreement other than those specifically set forth in this Final Decree ofDivorce. Indemnification Each party represents and warrants that he or she has not incurred any outstanding debt, obligation, or otherliabilityon which the otherparty is or may be liable, otherthanthosedescribed in this decree. Each party agrees and IT IS ORDERED that if any claim, action, orproceeding is hereafter initiated seeking to hold theparty not assuming adebt, an obligation, aliability, an act, or an omission ofthe other partyliable for such debt, obligation, liability, act or omission ofthe other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, oromission oftheother party against any such claim ordemand, whether or

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not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission oftheother party and hold himorher harmless from all damages resulting from theclaim or demand.

Damages, asused inthisprovision, includes anyreasonable loss, cost, expense, penalty, and other damage, including without limitation attorney's fees and other costs and expenses reasonably and necessarily incurred in enforcing this indemnity.

IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on demand, for any payment made by the indemnified party at any time after the entry of the divorce decree to satisfy anyjudgment of anycourt of competent jurisdiction orin accordance with a bona fide compromise or settlement of claims, demands, or actions for any damages to which this indemnity relates.

The parties agree and IT IS ORDERED that each party will give the other party prompt written notice of any litigation threatened or institutedagainst eitherparty thatmight constitutethe basis of a claim for indemnity under this decree. Clarifying Orders Without affecting the finality ofthis Final Decreeof Divorce, this Court expressly reserves the right to make orders necessary to clarifyand enforce this decree. Requestfor Change ofName IT IS OREDERED AND DECREED that Petitioner, Kathleen Anne Lozano Martinez's name is changed to Kathleen Anne Lozano. ReliefNot Granted IT IS ORDERED AND DECREED that all relief requested in this case and not expressly granted is denied. This is a final judgment, for which let execution and all writs and processes

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necessary to enforcethis judgment issue. This judgment finally disposes ofall claims andall parties and is appealable. Date ofJudgment

SIGNED on N<\0\MA/*>L^rjyH, Zcn^

A

JUDGE PRESIDING

APPROVED AS TO FORM ONLY:

KATHLEEN ANNE LOZANO MARTINEZ 9801 W. Parmer Lane Apt. 313 Austin, TX 78717 Tel: (956) 358-7622 Fax:

APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE:

Petitioner

Respondent

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CAUSE NO. 12-1114-F425

IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF

KATHLEEN ANNE LOZANO MARTINEZ AND 425TH JUDICIAL DISTRICT EUGENIO ESPINOZA MARTINEZ

AND IN THE INTEREST OF , A CHILD WILLIAMSON COUNTY, TEXAS

RESPONDENT'S REQUEST FOR

FINDINGS OF FACT & CONCLUSIONS OF LAW

Respondent asks the court to file findings of fact and conclusions of law, in accordance to Texas Rules Of Civil Procedure 296 and Texas Family Code §153.258.

A. Introduction

1. Petitioner is Kathleen Anne Lozano Martinez; Respondent is Eugenio Espinoza Martinez.

2. The court signed a judgment on November 7, 2012.

B. Request

3. Respondent asks the court to file findings of fact and conclusions of law and require the court clerk to mail copies to all parties, as required by Texas Rules Of Civil Procedure 297.

4. Respondent files this request within 20 days after the court signed the judgment.

Respectfully Submitted,

Eugenio Espinoza Martinet Respondent Pro Se

TDCJ-ID# 1686937

William G. McConnell Unit 3001 South Bnily Drive

FILED Beeville, Texas 78102 o'olook M

NOV l 62012

Precbved\

i^d)*d<t M 1 2 2015 CHtlrlct Clerk, Williamson Co., TX.

THIRD C0URTOFAPPEALS

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