ACCEPTED
07-15-00176-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS 11/9/2015 11:57:18 PM
Vivian Long, Clerk
No. 07-15-00176-CV
FILED IN
7th COURT OF APPEALS
In the Seventh Court of Appeals AMARILLO, TEXAS Amarillo, Texas 11/9/2015 11:57:18 PM VIVIAN LONG
CLERK
In the Matter of the Marriage of Christina Lynn Fletcher and Robert Hugh Fletcher
On Appeal from the 237th District Court Lubbock County, Texas Cause No. 2014-510,128
Brief of Appellant
Charles Blevins Attorney for Appellant Chappell, Lanehart & Stangl, P.C. 1217 Avenue K Lubbock, TX 79401-4025 (806) 765-7370 phone (806) 765-8150 fax charles@attorneyinlubbock.com State Bar No. 24077261
Counsel for Appellant Robert Hugh Fletcher
ORAL ARGUMENT REQUESTED
Identity of Parties and Counsel
Appellant
Robert Hugh Fletcher
Trial Counsel:
Mr. Robert Sullivan 5147 69th Street, Suite D Lubbock, TX 79424
Appellant Counsel:
Charles Blevins Chappell, Lanehart & Stangl, P.C. 1217 Avenue K Lubbock, TX 79401-4025
Appellee
Christina Lynn Fletcher
Trial Counsel:
Charles Chambers 915 Texas Avenue Lubbock, TX 79408
Appellee Counsel:
Deborah Smith McClure W. Calloway Huffaker P.O. Box 15125 P.O. Box 968 Amarillo, TX 79105-5125 Tahoka, TX 79373
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Table of Contents
Identity of Parties and Counsel ................................................................................ 2 Table of Contents .................................................................................................... 3 Index of Authorities ................................................................................................. 4 Designation of References........................................................................................ 6 Statement of the Case .............................................................................................. 7 Issues Presented ....................................................................................................... 8 Statement of Facts ................................................................................................... 9 Summary of Argument........................................................................................... 10 Argument and Authorities ...................................................................................... 11 Issue Restated: The trial court’s mischaracterization of property (and the divestiture of the husband’s separate property) in this divorce action resulted in a division of the community estate in a manner that was not fair and just. ............. 11 A. Standard of Review for Division of Marital Property................................... 11 B. Standard of Review for Division of Marital Property ................................... 11 C. Community Property Presumption and “Clear and Convincing Evidence.” ........................................................................................................................ 12 D. The trial court mischaracterized Bobby’s separate property as community property and improperly awarded it to Christina. ............................................13 E. Conclusion .................................................................................................. 18 Prayer ..................................................................................................................... 19 Certificate of Compliance ...................................................................................... 20 Certificate of Service.............................................................................................. 21
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Index of Authorities
Cases Allen v. Allen, 704 S.W.2d 600 (Tex. App. 1986) ......................................................................17 Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223 (Tex. 1991) ............................................................................... 11 Boyd v. Boyd, 131 S.W.3d 605 (Tex. App. 2004) ................................................................. 14, 15 Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982)................................................................................13 Crawford v. Hope, 898 S.W.2d 937 (Tex. App. 1995) ...................................................................... 12 Ditraglia v. Romano, 33 S.W.3d 886 (Tex. App. 2000) ........................................................................ 11 Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977) .......................................................................... 13, 17 Gardner v. Gardner, 229 S.W.3d 747 (Tex. App. 2007) ................................................................ 11, 12 Giesler v. Giesler, No. 03-08-00734-CV, 2010 WL 2330362 (Tex. App. June 10, 2010) .................13 Love v. Bailey-Love, 217 S.W.3d 33 (Tex. App. 2006) ........................................................................ 14 McElwee v. McElwee, 911 S.W.2d 182 (Tex. App. 1995)....................................................................... 14 McKinley v. McKinley, 496 S.W.2d 540 (Tex. 1973) .............................................................................. 14 Moroch v. Collins, 174 S.W.3d 849 (Tex. App. 2005) ................................................................ 14, 15 Pletcher v. Goetz, 9 S.W.3d 442 (Tex. App. 1999) .................................................................... 11, 12 Santillan v. Campos, No. 04-08-00904-CV, 2009 WL 3464867 (Tex. App. Oct. 28, 2009) ............... 12 Sharma v. Routh, 302 S.W.3d 355 (Tex. App. 2009) ......................................................................13 Sheshtawy v. Sheshtawy, 150 S.W.3d 772 (Tex. App. 2004).......................................................................17
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Simmons v. Simmons, No. 03-02-00517-CV, 2003 WL 21554302 (Tex. App. July 11, 2003) .................13 Tate v. Tate, 55 S.W.3d 1 (Tex. App. 2000) ............................................................................17 Zeptner v. Zeptner, 111 S.W.3d 727 (Tex. App. 2003) .......................................................................17 Statutes Tex. Const. art. XVI, § 15 ...................................................................................... 14 Tex. Fam. Code Ann. § 3.001 (West) .................................................................... 14 Tex. Fam. Code Ann. § 3.002 (West) .................................................................... 12 Tex. Fam. Code Ann. § 3.003(a) (West) ............................................................... 12 Tex. Fam. Code Ann. § 7.001 (West 2013) ............................................................. 11
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Designation of References
The Reporter’s Record is contained in three volumes. References to the
Reporter’s Record are cited as (RR), V. (volume), p. (page) and 1. (line).
The Clerk’s Record is contained in one volume. References to the Clerk’s
Record are cited as CR (page number).
Petitioner’s Exhibit as Petitioner’s Ex. (number).
Respondent’s Exhibit as Respondent’s Ex. (number).
Appendix references are cited as App. (p. number).
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Statement of the Case
This is an appeal from a decree of divorce dissolving the marriage of Robert
Fletcher (“Bobby”) and Christina Lynn Fletcher (“Christina”). Appellee
Christina L. Fletcher filed her Original Petition for Divorce against Appellant
Bobby Fletcher on February 6, 2014. (CR 6). There were no children of the
marriage, and only property issues were to be decided. (CR 7).
On September 30, 2014, a bench trial was held before the Honorable Abe
Lopez—sitting by assignment—in the 237th Judicial District of Lubbock County,
Texas. (RR 1). A Final Decree of Divorce which divided the property of the parties
was signed on April 6, 2015 by Judge Lopez. (CR 65).
Among other things, the decree awards Christina a 40.00 foot x 685.00 foot
tract of land and building on the land. (RR 134).
Bobby filed a motion for new trial claiming Bobby’s separate property was
improperly converted to community property by the trial Court and awarded to
should not have been awarded to petitioner. (CR 40). The motion for new trial was
not ruled on by the trial court.
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Issues Presented
The trial court’s mischaracterization of property (and the divestiture of the
husband’s separate property) in this divorce action resulted in a division of the
community estate in a manner that was not fair and just. Bobby purchased the lot
awarded to Christina long before marrying her. The lot is Bobby’s separate
property. By awarding the lot to Christina, the trial court committed reversible
error.
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Statement of Facts
Christina and Bobby were married November, 2011. (RR 12). The divorce
action was filed February 6, 2014 (RR 12). Bobby Fletcher owns two lots in
Wolfforth, Texas. (RR 63). The “auction business” lot was purchased in 1988 and
the “veterinary lot” was purchased in 1986. (RR 63-66). The trial court awarded
the veterinary lot to Christina, and the auction business lot to Bobby.
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Summary of Argument
Upon divorce, marital property is to be divided in a manner that is just and
right. The division of the marital estate should not be unjust, but just and right.
Moreover, a trial court should not abuse the discretion to divide that property.
Although a trial court is presumed to have properly exercised its discretion in
dividing the community estate, this presumption is rebuttable.
The reporter’s record in this case demonstrates the trial court made
substantial, not minimal, errors involving the determination of separate property
and the award of said property. The mischaracterization of property did not have
merely a de minimus effect on the right and just division of the community property
in this case and must be reversed.
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Argument and Authorities
Issue Restated: The trial court’s mischaracterization of property (and the divestiture of the husband’s separate property) in this divorce action resulted in a division of the community estate in a manner that was not fair and just.
A. Standard of Review for Division of Marital Property
A trial court is charged with the responsibility to divide the community
estate in a “just and right” manner, considering the rights of both parties. Tex.
Fam. Code Ann. § 7.001 (West 2013). It is the responsibility, of the party
complaining of the trial court’s division of property, to demonstrate from evidence
in the record that the division was so unjust that the trial court abused its
discretion. Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App. 1999)(op, on reh’g).
A trial court’s division of marital property is reviewed under an abuse of
discretion standard. Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App. 2007). An
abuse of discretion occurs if a trial court acts “without reference to guiding rules or
principles (legal issues), or acts arbitrarily or unreasonably (factual issues).” Id.
B. Standard of Review for Division of Marital Property
Under the abuse of discretion standard, legal factual sufficiency are relevant
factors in assessing whether the trial court abused its discretion. Beaumont Bank,
N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). However, legal and factual
sufficiency are not independent grounds of error. Ditraglia v. Romano, 33 S.W.3d
12
886, 889 (Tex. App. 2000); Crawford v. Hope, 898 S.W.2d 937, 940 (Tex. App.
1995), writ denied (Oct. 27, 1995), writ denied (Oct. 27, 1995).
Although legal and factual sufficiency of the evidence does not constitute
independent grounds of error, they are relevant factors to consider in determining
whether the trial court abused its discretion. Gardner, 229 S.W.3d at 751.
“Consequently, if the division of marital property lacks sufficient evidence in the
record to support it, then the trial court’s division is an abuse of discretion.”
Santillan v. Campos, No. 04-08-00904-CV, 2009 WL 3464867, at *2 (Tex. App.
Oct. 28, 2009) (mem. op.).
There is a presumption the trial court exercised its discretion properly and
the trial court’s division should not be disturbed unless the record demonstrates
“that the division was clearly the result of an abuse of discretion.”Pletcher, 9
S.W.3d at 446.
C. Community Property Presumption and “Clear and Convincing Evidence.”
When a trial court considers a claim that marital property might be the
separate property of either spouse, the property possessed by either spouse during
or on dissolution of marriage is presumed to be community property. Tex. Fam.
Code Ann. § 3.003(a) (West). Community property is property other than separate
property, acquired by either spouse during marriage. Tex. Fam. Code Ann. § 3.002
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(West).
For purposes of this case, Bobby’s separate property consists of (1) the
property, owned or claimed by the spouse before marriage, and (2) the property,
acquired by the spouse during the marriage by gift, devise, or descent. § 3.001 Tex.
Faro. Code Ann. (West 2013). More specifically, the auction lot and the veterinary
lot.
If the trial court awards some of one spouse’s separate property to the other
spouse, “then the trial court abuses its discretion and reversibly errs.” Sharma v.
Routh, 302 S.W.3d 355, 360 (Tex. App. 2009); see Cameron v. Cameron, 641
S.W.2d 210, 213 (Tex. 1982); Giesler v. Giesler, No. 03-08-00734-CV, 2010 WL
2330362, at *6 (Tex. App. June 10, 2010); Simmons v. Simmons, No. 03-02-00517-
CV, 2003 WL 21554302, at *3 (Tex. App. July 11, 2003) (“Although trial courts
enjoy broad discretion in dividing community property in a divorce action, the
court abuses its discretion if it divests one spouse of separate property and awards
it to the other spouse.”).
D. The trial court mischaracterized Bobby’s separate property as community property and improperly awarded it to Christina.
As stated herein above, the Court cannot, on divorce, divest a party of his
separate property. Cameron, 641 S.W.2d at 213; Eggemeyer v. Eggemeyer, 554
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S.W.2d 137, 140-42 (Tex. 1977).
Separate property is defined as property acquired before marriage or certain
other kinds of property (i.e., gift, inheritance, personal injury award) acquired
during marriage. Tex. Const. art. XVI, § 15; Tex. Fam. Code Ann. § 3.001 (West);
Love v. Bailey-Love, 217 S.W.3d 33, 35 (Tex. App. 2006).
A spouse claiming assets as separate property is required to establish its
separate character by clear and convincing evidence. McElwee v. McElwee, 911
S.W.2d 182, 188 (Tex. App. 1995), writ denied (Apr. 12, 1996), writ denied (Apr. 12,
1996).
The characterization of property as either community or separate is
determined by the inception of title to the property, i.e., when a party first has a
right of claim to the property by virtue of which title is finally vested. Moroch v.
Collins, 174 S.W.3d 849, 857 (Tex. App. 2005); Boyd v. Boyd, 131 S.W.3d 605, 611
(Tex. App. 2004).
To overcome the community presumption, the spouse claiming certain
property as separate has the burden to trace and clearly identify the property
claimed to be separate. McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973).
Tracing involves establishing the separate origin of the property through
evidence showing the time and means by which the spouse originally obtained
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possession of the property. Moroch, 174 S.W.3d at 857; Boyd, 131 S.W.3d at 611.
Moreover, a party claiming separate property must support the claim with
documentary evidence—mere testimony alone that real property is separate is
generally insufficient to overcome the community presumption. Boyd, 131 S.W.3d
at 612.
Because Bobby claimed the veterinary lot as separate property, he had the
burden at trial of establishing by clear and convincing evidence the origin of the lot.
Bobby was required to show when and how he originally obtained the veterinary
lot. Moroch, 174 S.W.3d at 856; Boyd, 131 S.W.3d at 612.
Bobby traced his separate property claim for the veterinary lot. (RR 63-66) &
(Resp. Ex. 2). During his testimony, Bobby testified he purchased the veterinary lot
in 1986.
Q. Now, when she moved up here and moved in with you after you guys got married, you decided to transfer the vet clinic area up here?
A. Well, actually, before we married. She wasn't going to come up here until she had a vet clinic to operate out of, so I actually remodeled that and – but I never did transfer title, no. (RR 66) Q. And that is a lot you have had since 1988. And then in terms of the lot on the left, you are also asking that you keep that?
A. Yes, sir.
Q. And the lot you had prior to the marriage?
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A. Yes, sir.
Q. And we have heard testimony that a lot of the fixtures in there are also tied to the note but not all of them?
A. That is correct. (RR 67).
Moreover, Bobby presented the trial court with Respondent’s Exhibit No. 2
which is the deed to the veterinary lot, conveyed to Bobby in 1986.
Moreover, the “improvements” made to the lot were prior to the marriage
(including the building which existed prior to the marriage in 2011). Bobby moved
Christina into the building in 2011 so she could “run her business.” However, as
noted in the record, Bobby never gifted, comingled or otherwise transferred any
part of the property to Christina.
Q. Did Christina ever send cash up to you for help on the remodeling of the house or anything?
A. No, sir. (RR 77).
Although Christina testified about “improvements” or “moving to
Wolfforth to start a new practice” she did not present any documentary evidence
to establish the lot was converted to community property.
When a reviewing court is asked to review an alleged characterization error,
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the court must determine not only whether the trial court's finding of separate
property is supported by clear and convincing evidence, but also whether the
characterization error, if established, caused the trial court to abuse its discretion.
Allen v. Allen, 704 S.W.2d 600, 603 (Tex. App. 1986).
If property is mischaracterized and the mischaracterization is of such
magnitude that it affects the just and right division of the community estate, the
case must be remanded to the trial court for a just and right division based upon the
correct characterization of the property. Zeptner v. Zeptner, 111 S.W.3d 727, 740
(Tex. App. 2003).
If a party can establish that property is his or her separate property, “it is
unnecessary to show harm because divestiture of separate property is reversible
error” without the necessity of showing “that the overall property division
constitutes an abuse of discretion.” Tate v. Tate, 55 S.W.3d 1, 6-7 (Tex. App.
2000).
Divesting Bobby of his separate property is reversible per se. See Sheshtawy
v. Sheshtawy, 150 S.W.3d 772, 779-80 (Tex. App. 2004) (citing, inter alia,
Eggemeyer, 554 S.W.2d at 140) (holding that if a trial court mischaracterizes
separate property as community property, “the error requires reversal because the
subsequent division divests a spouse of his or her separate property.”).
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E. Conclusion
Based on the foregoing, the trial court clearly abused its discretion in
characterizing the veterinary lot as community property and awarding a
disproportionate division of the estates of the parties.
The record before this court contains the evidence necessary to support the
conclusion that the trial court abused its discretion in dividing and classifying
Bobby Fletcher’s marital estate.
This Court should reverse the judgment of the trial court and remand this
case to the trial court for purposes of truly achieving a just and right division of the
estate of Bobby and Christina Fletcher as of the date they were divorced
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Prayer
For these reasons, Appellant Bobby Fletcher asks this Court to reverse the
portion of the decree that awards Appellee Christina Fletcher the “veterinary lot,”
remand to the trial court for a just and right division in accordance with the
guidelines set forth by this Court and grant Appellant all other relief for which he is
entitled.
Respectfully,
/s/ Charles Blevins Charles Blevins Attorney for Appellant Chappell, Lanehart & Stangl, P.C. 1217 Avenue K Lubbock, TX 79401-4025 (806) 765-7370 phone (806) 765-8150 fax charles@attorneyinlubbock.com State Bar No. 24077261
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Certificate of Compliance
I certify that the foregoing document contains 3,137 words, according to the
word count of the computer program used to prepare it, in compliance with Rule
9.4(i)(2).
/s/ Charles Blevins Charles Blevins Attorney for Appellant Chappell, Lanehart & Stangl, P.C. 1217 Avenue K Lubbock, TX 79401-4025 (806) 765-7370 phone (806) 765-8150 fax charles@attorneyinlubbock.com State Bar No. 24077261
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Certificate of Service
I certify a true copy of this Appellant’s Brief was served in accordance with
Rule 9.5 of Texas Rules of Appellate Procedure, on each party or that party’s lead
counsel as follows:
Party: Christina Lynn Fletcher Lead attorney: Deborah Smith McClure
Address of service: P.O. Box 15125 Amarillo, TX 79105-512
Email: deborahm@huffaker-law.com
Method of service: Electronic service Date of service: November 9, 2015
/s/ Charles Blevins Charles Blevins Attorney for Appellant Chappell, Lanehart & Stangl, P.C. 1217 Avenue K Lubbock, TX 79401-4025 (806) 765-7370 phone (806) 765-8150 fax charles@attorneyinlubbock.com State Bar No. 24077261
APPENDICES
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Filed 4/13/2015 11:51:42 AM Barbara Sucsy District Clerk
Lubbock County, Texas
NO. 2014-510,128 DL
IN THE MATTER OF § IN THE 237TH DISTRICT COURT THE MARRIAGE OF § §
CHRISTINA LYNN FLETCHER § OF AND § ROBERT HUGH FLETCHER § LUBBOCK COUNTY, TEXAS
FINAL DECREE OF DIVORCE
On September 30,2014, this case came on for hearing.
Appearances
Petitioner, CHRISTINA LYNN FLETCHER, appeared in person and through attorney of
record, CHARLES S. CHAMBERS.
Respondent, ROBERT HUGH FLETCHER, appeared in person and through attorney of
record, ROBERT SULLIVAN, and armounced ready for trial.
Record
The record of testimony was du1y reported by the Official Court Reporter for the 23 7th
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 it has jurisdiction over this cause of action and the parties and that at least 60 days have
elapsed since the date the suit was filed. The Court fmds Petitioner has been a domiciliary of this
state for at least a six-month period preceding the filing of this action and a resident of the county
in which this suit is filed for at least a 90-day period preceding the filing of this action. All persons
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entitled to citation were properly cited.
A jury was waived, and all questions of fact and of law were submitted to the Court.
Divorce
IT IS ORDERED AND DECREED that CHRISTINA LYNN FLETCHER, Petitioner, and
ROBERT HUGH FLETCHER, Respondent, are divorced and that the marriage between them is dis-
solved on the ground of insupportability.
Children of the Marriage
The Court finds that there is no child of the marriage and that none is expected.
Division of Marital Estate
The Court finds that the following is a just and right division of the parties' marital estate,
having due regard for the rights of each party and the children of the marriage.
IT IS ORDERED AND DECREED that the estate of the parties is divided as follows:
Petitioner is awarded the following as Petitioner's sole and separate property,and Respondent
is divested of all right, title, interest, and claim in and to such property:
1. The real property in Lubbock County, Texas, further described on Exhibit "B" and attached hereto and incorporated herein as if set forth verbatim, together with all debt thereon as of March 1, 2015, to wit:
2. All household furniture, furnishings, fixtures, goods, appliances, and equipment in the possession of or subject to the sole control of Petitioner.
The following furniture, furnishings, fixtures, goods, appliances, and equipment:
3. All clothing, jewelry, and other personal effects in the possession of or subject to the sole control of Petitioner.
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4. Any and all sums of cash in the possession of or subject to the sole control of Petitioner, including money on account in banks, savings institutions, or other financial institutions, which accounts stand in Petitioner's sole name or from which Petitioner has the sole right to withdraw funds or which are subject to Petitioner's sole control.
5. Any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of Petitioner's past, present, or future employment.
6. Any and all policies oflife insurance insuring the life of Petitioner.
7. Any and all stocks, bonds, and securities registered in the name of Petitioner, together with all dividends, splits, and other rights and privileges in connection therewith.
8. The 2012 Chevrolet Silverado Pickup, VINNo. 3GCPCTE06CG234837 together with all insurance, keys and title documents.
9. The business known as Animal Medical Center of Wolfforth , including but not limited to all furniture, fixtures, machinery, equipment, inventory, cash, accounts, goods, and supplies; all personal property used in connection with the operation of such business; and any and all rights and privileges, past, present, or future, arising out of or in connection with the operation of such business, together with all indebtedness thereon.
I 0. The following livestock with all transfer and registration documents;
The mare known as Maggie and her foal; The mare known as Biddy; The gelding known as Rooster; The gelding known as Apache; The mare known as Cherokee.
11. The following livestock trailers together with all prepaid insurance, keys, and
title documents:
The 2008 S&H livestock trailer VINNo. 140HG132591092140
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A white bwnper pull 3 horse slant load trailer in the possession of Respondent, VIN Nwnber unknown. Respondent is immediately ordered to return same to Petitioner.
The white gooseneck trailer in Petitioner's possession, VIN Nwnber
12. All personal property, other than that specifically awarded to Respondent located at Petititoner' s current residence and in the possession of Petitioner.
13. The Smarty roping dwnmy.
14. The business known as,Animal Medical Center of Wolfforth, together with all inventory , equipment, furniture, fixtures and accounts receivable, together with all debt thereon as of March I, 2015 ..
Respondent is awarded the following as Respondent's sole and separate property, and Petitioner is hereby divested of all right, title, interest, and claim in and to such property:
I. The following real property, including but not limited to any escrow funds, prepaid insurance, utility deposits, keys, house plans, warranties and service contracts, and title and closing docwnents:
The real property in Lubbock County Texas, further described on Exhibit "C" attached hereto and incorporated herein as if set forth verbatim;
The real property described as Lot Five Hundred Forty Six (546) Farrar Estates Addition to the City of Lubbock, Lubbock County, Texas, according to the Map, Plat or Dedication Deed thereof recorded in Volwne 1417, Page 480 of the Deed Records of Lubbock County, Texas., together with all indebtedness thereon.
2. All household furniture, furnishings, fixtures, goods, appliances, and equipment in the possession of or subject to the sole control of Petitioner.
3. All clothing, jewelry, and other personal effects in the possession of or subject to the sole control of Petitioner.
4. Any clothing, jewelry, and other personal effects belonging to Respondent which remain in the possession of Petitioner.
5. Any and all swns of cash in the possession of or subject to the sole control of Petitioner, including money on account in banks, savings institutions, or other fmancial institutions, which accounts stand in Petitioner's sole name or from which Petitioner.
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6. Any and all sums, whether matured or unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights related to any profit-sharing plan, retirement plan, pension plan, employee stock option plan, employee savings plan, accrued unpaid bonuses, or other benefit program existing by reason of Petitioner's past, present, or future employment.
7. Any and all policies of life insurance insuring the life of Respondent.
8. Any and all stocks, bonds, and securities registered in the name of Petitioner, together with all dividends, splits, and other rights and privileges in connection therewith.
9. The 2013 Chevrolet Pickup,YIN No. 3GCPKSE73DG34134,together with all prepaid insurance, keys and title documents, together with all indebtedness thereon.
I 0. The business known as Bobby Fletcher Auctioneers, including but not limited to all furniture, fixtures, machinery, equipment, inventory, cash, accounts, goods, and supplies; all personal property used in connection with the operation of such business; and any and all rights and privileges, past, present or future, arising out of or in connection with the operation of such business, together with all indebtedness thereon.
11. The ATV/4 Wheeler in Respondent's possession.
12. The following livestock together with all transfer and registration papers:
The gelding known as Platinum; The gelding known as Chubby; The gelding known as Gallo.
13. The following livestock trailers, together with all prepaid insurance, keys and title documents:
The red bumper bull2 horse trailer in Respondent's Possession, VIN Number
The gooseneck trailer in Respondent's possession, VIN Number
14. Any and all personal property, other than that specifically awarded to Petitioner, located at the current residence of Respondent and in the possession of Respondent.
IT IS ORDERED AND DECREED that Petitioner shall pay, as a part of the division of the estate of the parties, the following debts and obligations and shall indemnifY and hold
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Respondent and Respondent's property harmless from any failure to so discharge these debts and obligations:
1. The balance due, including principal, interest, tax, and insurance escrows, on that certain promissory note executed by Robert Hugh Fletcher , in the original principal sum of$ 200,000 .00 , dated , payable to People's Bank , and secured by deed of trust on the real property herein awarded to Petitioner and recorded at Volume , Page , Deed of Trust Records of Lubbock County, Texas, and shall refinance the debt solely in her name, on or before thirty (30) days following the execution hereof.
2. The balance due, including principal, interest, and all other charges, on any promissory notes payable to , and given as part of the purchase price of and secured by a lien on the motor vehicle awarded to Petitioner.
3. The following debts, charges, liabilities, and obligations:
4. Any and all debts, charges, liabilities, and other obligations incurred solely by Petitioner, from and after January 25,2014 unless express provision is made in this decree to the contrary.
5. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to become due on the real and personal property awarded to Petitioner in this decree unless express provision is made herein to the contrary.
IT IS ORDERED AND DECREED that Respondent shall pay, as a part of the division of the estate of the parties, the following debts and obligations and shall indemnifY and hold Petitioner and Petitioner's property harmless from any failure to so discharge these debts and obligations:
1. All debt incurred solely in the name of Respondent, other than that specifically awarded to Petitioner.
Propertv To Be Sold
It is order that the attorneys for the parties confer and agree to a neutral, third party real estate broker or agent to list and sell the property described on Exhibit "A" hereto, with the proceeds of the property, less closing costs of any nature, to be split equally between Petitioner and Respondent upon sale of the property set forth on Exhibit "A".
Notice
IT IS ORDERED AND DECREED that each party shall send to the other party, within three
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days of its receipt, a copy of any correspondence from a creditor or taxing authority concerning any
potential liability of the other party.
Attorney's Fees
To effect an equitable division of the estate of the parties and as a part of the division, and
for services rendered in connection with conservatorship and support of the children, each party shall
be responsible for his or her own attorney's fees incurred as a result of legal representation in this
case.
Perfonnance of Decree
IT IS ORDERED that each of the parties shall execute and deliver to the other, within ten
days upon request, all deeds, payments of money, certificates of title, assignments, change of
beneficiary on insurance policies, powers of attorney or other things or documents necessary to fully
effectuate this Decree.
This decree shall serve as a muniment of title to transfer ownership of all property awarded
to any party in this final decree of divorce.
Court Costs
Costs of court are to be borne by the party by whom costs were incurred.
Clarifying Orders
Without affecting the finality of this Decree of Divorce, this Court expressly reserves the
right to make orders necessary to clarify and enforce this decree.
Restraining Order
It is ordered that neither party shall disturb or molest the peace of the other party in any manner,
including but not limited to deliberate following, entering onto each others property without express
65
invitation, terminating any utility service in the name of any party, looking through windows and
doors of property belonging to each party and making disparaging remarks about either party to a
party or any third party.
Change of Name
It is ordered that Petitioners previous surname of COKER is hereby restored.
Relief Not Granted
IT IS ORDERED AND DECREED that all relief requested in this cause and not expressly
granted is denied.
Date of Judgment
SIGNED on theb"'" day of f}v.uJ 1 , 2015.
APPROVED AS TO FORM ONLY:
66
EXHIBIT A
SURFACE ESTATE ONLY of a part of the West Half (W/2) of Secllon 104, Block T, o & W Ry. co. SUrvey In TerJY CoUnty, T8ll88, dascrlbed by maleS and bounds as faRows, to. wit BEGINNING at a point, a =spike, set for 1he Northeast comer of the West half of SeotiOn 104, far the Nolthlaat and begb111lnQ comer or lhllti'IICI; THENCE Sauftl 0"10' East along !he East line of uld Weet halt, a distance of 1221-8 feet tc a lOCI eat for lhe Southeast comer of lhls tract; lliENCE SDUih 8&"18'30" Wnt a dlstance or 612.78 reet to a rcld set for the Southeast comer of Oebo Tract dascrlbad In Volume 383, Page II, Oeecl Records, Teny County, Texaa, enc! for tho mast Eaafarty and most Soulherfy Southwest comer of lhl& lriiCI; lliENCE Nollh 0"19' Wasta dlstanlll of743.63 feet to rod sat for a comer aflhls tract, the Northeast comer ot said Gebo Tract; THENCE 8olllh 89"33'30" West 11 clfatance or 366.15 feet to red sat In the East right.of-way line of u.s. Highway 02, the lllatlhWUt comer of the Gebo Trad, the most Westerly and mast Nort11811y SOulhweat comer of thlsirad; THENCE North 22"50' Eaat along 11\e east Rlght.of-Way One of U.S. Highway No. 82, a distance of 543.8 feet to a spike lnlha Nallh line Of 5eCIIOn 104, for tha Nollhwast comer of this tracl; THENCE South 891147' Eut a dlsl&nce of 750 feet tc the Place Of Beginning, containing 111.90 aCillll, I11CAI or 1111,
SAVE AND EXCEPT a 5.0 acre Inlet described by deld da!Sd August 13, 1091, recorded In Volume G13, Page 882, Oftlelal Pllbllc Raconls, Tarry County, Texas, as further _ dscribed by metes and bounds as followl, to-wit: BEGINNING at a % Inch ateel rod eet In lhe NcRttt line of Section 104, that beara North 89047' West 3042.27feat from 11 ~ lnch pipe found at the Northeast comer of SecUon 104, BlodcT; THENCE South 00"19' East. at 20 feet pau the SOuth !Ina of a PBV8d county road, conltluJng 111 dletance of 4118.86 filet ror 111!1 S11Uiheast comer of 11118 Inlet; THENCE South 89"33'30" West 543.83 feet tc a ~ Inch ateel rod found for lhe Northwest comer gt a 2.62 acre tract end the SuulllWeat c:omer or thfs tract; THENCE Nanh 22"55' East, along the SOu11181et rlgllt-of·way 11f U.S. Hfghway62, 543.80 r.t 1a a found apike In the Nor1h lin• of Section 104, for the Northwest comer of this tract and tha Northwest c:omar of a 19.90 acre ll'llcl described In Voful!l& 393, Page 825 of tha Teny COunty Deed Recorda; lliENC!! South 89"47' East, along the North line ot Sedlon 104, 329.31 feet tc fha Place of Beginning.
r ;~- -.
"
'' VOL 772 PAGE 00 7 6
67
A tract of land out of Section 31, Block D-6., Lubbock County, Texas and being more particularly described as follows:
BEGINNING at a 3/B" iron.rod, set for the Northeast and beginning corner of this tract, whence the Northwest ·corngr of the Northeast 1/4 of Section 31, bears North 87 51'00" East, 500.32 feet and North 1916.95 feet, THENCE South, 300.00 feet to a 1/2 11 iron rod, set for the Southea~t corner of this tractt
THENCE South 87°51'00" West, 100.10 feet "to a 1/2" iron rod , set for the Southwest corner of this tract;
THE!lCE North, 300.00 feet to a 1/2" rod,set for the Northwest corner of this tract;_
THENCE North 87°51'00'' East, 100.10 feet to. +_B.e p/irft of the beginning • . CONTAINING 0869 acres.
68
FIELD NOTES of a 40.00 foot X 685.00 foot tract of land, more or less, located in the Northwest Quaiter (NW/4) of Section Twenty-Three (23), Block CB, Lubbock County, Texas, and being further described as fo~~ows:
BEGINNING at a 1/2" iron rod set in the West line of said Section 23, North 00°07'15" West, a distance of 1488.98 feet from a 3/4" iron pipe found for the Southwest corner of said Northwest Quarter (NW/4);
THENCE North 89.51'33" East, at 30.00 feet pass a 1/2" iron rod set for the East line of County Road 1000, in all, a total distance of 685.00 feet to a 1/2" iron rod set for a corner of this tract;
THENCE South 00"07'15" East, a distance of 40.00 feet to a 1/2"
iron rod set for a corner of this tract;
THENCE South 89°51'33" West, at 660.00 feet pass a 1/2" iron rod set for the East line of County Road 1000, in all, a total distance of 685.00 feet to a 1/2" iron rod set in the West line of said Section 23 for a corner of the tract;
THENCE North 00°07'15" West, a distance of 40.00 feet to the !?lace of Beqinning;
SUBJECT TO mineral and/or royalty reservations and restrictive covenants of record; and subject to easements and riqhts-of-way of record or v~8ib~e on the g~ound.
Warranty Deed Page 1
69
~ ~~ h --- gp~c/J5- cr<roy32 UfG..a"-t oAo ~
1 MR. SULLIVAN: There is a lot, yes, sir. .2 THE COURT: And I would like to have your 3 proposal in writing. 4 MR. SULLIVAN: I will certainly do that
5 Your:- __Ho~or, ye!j :. . 6 THE COURT: Let's meet back here at 7 one o'clock. It is about 12:15. Forty-five minutes
8 ought to be sufficient time for you to draft that and 9 get it back to me. 10 MR. SULLIVAN: Absolutely. I can do i t 11 right now, if you want, Your Honor. 12 THE COURT: Just write it out then. 13 MR. SULLIVAN: Yeah, absolutely. My office 14 is across town. 15 THE COURT: So let's take about a 20 minute 16 recess. Is that sufficient time, 25 minutes? 17 MR. SULLIVAN: Abs~lutely, Your Honor. 1:;.
18 will have this done in about five. 19 (Recess.) 20 THE COURT: Rather than trying to find i~
21 in the petition, Mr. Chambers, what is that name--
~:~~~~;~:-~win be Chci•<foa Cokec
24 THE COUliT: 0-D-0-M. All right. 25 Ms. Fletcher, I will grant you the name change.
TERR! RAMSEY, CCR, RPR 806.775.1028
70
1 hereby ordered to be changed to Coker Odom, okay. 2 With respect to di vision of the property as 3 testified to, Items One through Five, which I previously 4 misread, Mr. Chambers proposed disposition of issues, 5 those items, -~h~ pickups to each other, the horses, to 6 the personal items in each other'$ possession, to the -- 7 with the e~ception that Ms. Fletcher -- o~
8 Ms. Odom now is ordered to return to Mr. Fletcher s Mr. Fletcher's dad's saddle, his saddle, ----~------
10 Ms. Fletcher -- Ms. Ddom gets to keep the 11 saddle that Mr. Fletcher gave her. She is ordered to -···---~-----·-::=-;:·'-""'~,-:;~:::.:-.:.:..:·.:.:..--:::::.:.-=:.:..-,..~----
12 return hiQolex watch, ......
... -' --.:=-..:=""''"',......__,_,~
13 MR. CHAMBERS: Masonic ring? 14 THE COURT: There was something else. 15 Well, what other personal items he may have in the 16 house? 17 MR. SULLIVAN:~--:~-~-;-,--~ r Honor. 18 THE COURT: I'm sorry? 19 MR. SULLIVAN: A ring, Your Honor. 20 THE COURT: With respect to Exhibit Numl're-r 21 Nine, not having any evidence to the contrary to rebut 22 the same, I find that that property belongs to -- -----------
23 Mr. ·Fre.tcher · s daughters. And ; f he has any ; nterest ; n ---------
24 it, he is hereby deprived of it totally. 25
TERRI RAMSEY, CCR, RPR 806.775.1028
71
1 it is .hereby_ or-dered sol d. and the pr.oceeds divided 2 . between the- twa partie-s ... r am· crr<l-ert.ng.. tb.e a,ttonreysc to .
3 . a,9ree on an i nd.epe.ndent br-o-ker or oth.er agent 4 kn.owledgeable about thi·s type of real estate so he or 5 she can ac.qutre the- bes.t· s.eJl.i.ng; prt.ce. 6
.------
7 property, along with its debt.
..
Ms. Odom is awarded the
8 Woodrow house and its debt. Mr. Fletcher is awarded the 9 2004, as I recall the evidence, gooseneck horse trailer, 10 along with a red horse trailer. Ms. Odom will have the 11 -- she will be awarded the remaining horse trailers. 12 There was some confusion as to whether there were 13 actually four or five of those trailers, but the 14 remainder of the trailers will go to her. 15 Ms. Odom will get the Smarty roping dummy, 16 Mr. Fletcher will get the 4 Wheeler. Mr. Fletcher is 17 awarded the 200 by 300 lot in Wolfforth, along with 18 whatever items are contained on the property and will 19 maintain his auction business there along with any other 20 items that are on the property. That goes to some horse 21 pens or something like that. And Ms. Odom is awarded 22 the other property along with the vet clinic and 23 whatever items are contained on that lot. 24 I am not going to make any ruling on the 25 $7,000 because I don't know -- I don't have sufficient
TERRI RAMSEY, GCR, RPR 806.775.1028
72
1 evidence to determine what that money was used for by 2 whoever took it. If it was Ms. Odom, she may use it to 3 pay for community debts. I don't know. So I will not 4 make a ruling on that. 5 Kave I left out anything? 6 MR. CHAMBERS: No, sir. We1l, I don't see 7 anything. 8 THE COURT: Who will I get to prepare the 9 order, Counsel? 10 MR. CHAMBE.RS: I will prepare it, sir, I 11 filed the petition. 12 (Proceedings concluded.) 13
14 15
16 17 18 19
20 21 22
23 24
25
TERRI RAMSEY, CCR, RPR 806 . 775. 1028
73
1 REPORTER'S CERTIFICATE 2 THE STATE OF TEXAS )
COUNTY OF LUBBOCK ) 3 4 I, Terri Ramsey, Official Court Reporter in and for
5 the 237th District Court of Luhbock County, State of 6 Texas, do hereby certify that the above and foregoing 7 contains a true and correct transcription of all 8 portions of evidence and other proceedings requested in 9 writing by counsel for the parties to be included in 10 this volume of the Reporter's Record, in the 11 above-styled and numbered cause, all of which occurred 12 in open court or in chambers and were reported by me. 13 I further certify that this Reporter's .RecQrd of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, admitted by the respective parties. 16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $ _ _ and 18 was paid by 19 WITNESS MY OFFICIAL HAND this the 7th day of 20 November, 2014. 21 22 Terri Ramsey, Texas CSR 5537 23 Date of Expiration: 12/31/15 Official Court Reporter
24 237th District Court P.O. Box 10536
25 Lubbock, Texas 79408 (806) 775-1028
TERRI RAMSEY, CCR, RPR 806.775.1028
§ 7.001. General Rule of Property Division, TX FAMILY § 7.001
Vernon's Texas Statutes and Codes Annotated Family Code (Refs & Annos)
Title 1. The Marriage Relationship (Refs & Annos)
Subtitle C. Dissolution of Marriage Chapter 7. Award of Marital Property
V.T.C.A., Family Code § 7.001
§ 7.001. General Rule of Property Division
Currentness
In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
Credits Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Notes of Decisions (2203)
V. T. C. A., Family Code § 7.001, TX FAMILY § 7.001 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 3.001. Separate Property, TX FAMILY § 3.001
Vernon's Texas Statutes and Codes Annotated Family Code (Refs & Annos)
Title 1. The Marriage Relationship (Refs & Annos)
Subtitle B. Property Rights and Liabilities Chapter 3. Marital Property Rights and Liabilities (Refs & Annos)
Subchapter A. General Rules for Separate and Community Property (Refs & Annos)
V.T.C.A., Family Code § 3.001
§ 3.001. Separate Property
Currentness
A spouse's separate property consists of:
(1) the property owned or claimed by the spouse before marriage;
(2) the property acquired by the spouse during marriage by gift, devise, or descent; and
(3) the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Credits Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Notes of Decisions (1520)
V. T. C. A., Family Code § 3.001, TX FAMILY § 3.001 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 3.002. Community Property, TX FAMILY § 3.002
Vernon's Texas Statutes and Codes Annotated Family Code (Refs & Annos)
Title 1. The Marriage Relationship (Refs & Annos)
Subtitle B. Property Rights and Liabilities Chapter 3. Marital Property Rights and Liabilities (Refs & Annos)
Subchapter A. General Rules for Separate and Community Property (Refs & Annos)
V.T.C.A., Family Code § 3.002
§ 3.002. Community Property
Currentness
Community property consists of the property, other than separate property, acquired by either spouse during marriage.
Credits Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Notes of Decisions (85)
V. T. C. A., Family Code § 3.002, TX FAMILY § 3.002 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1
§ 3.003. Presumption of Community Property, TX FAMILY § 3.003
Vernon's Texas Statutes and Codes Annotated Family Code (Refs & Annos)
Title 1. The Marriage Relationship (Refs & Annos)
Subtitle B. Property Rights and Liabilities Chapter 3. Marital Property Rights and Liabilities (Refs & Annos)
Subchapter A. General Rules for Separate and Community Property (Refs & Annos)
V.T.C.A., Family Code § 3.003
§ 3.003. Presumption of Community Property
Currentness
(a) Property possessed by either spouse during or on dissolution of marriage is presumed to be community property.
(b) The degree of proof necessary to establish that property is separate property is clear and convincing evidence.
Credits Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.
Notes of Decisions (532)
V. T. C. A., Family Code § 3.003, TX FAMILY § 3.003 Current through the end of the 2015 Regular Session of the 84th Legislature
End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.
© 2015 Thomson Reuters. No claim to original U.S. Government Works. 1