James Allen Pelloat v. Katherine McKay Bolenbaucher
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Opinion
OW-OOHIS-CV
CASE NO. F-02252B9 DEC 1 1 2017 CAROLANNE HAHLEY CLERKOFTHECOURT NINTH COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE
THIRTEENTH DISTRICT OF TEXAS
iAMES ALLEN PELLOAT, APPELLANT PRO-SE
U .
KATHERINE McKAY BQLLENBAUCHER, APPELLEE
ON APPEAL FROM THE 279th JUDICIAL DISTRICT
COURT OF 3EFFER5QN COUNTY, TEXAS
APPELLANT'S BRIEF
3ames Allen Pelloat TDCJ # 1289716 C.T.TERRELL UNIT 1300 FM 655 Rosharon, Tbx .77583 IDENTITY OF PARTIES AND COUNSEL
1) James Allen Pelloat T.D.C.3. # 1289716
C.T.Terrell Unit
1300 FM 655
Rosharan, Texas 77583
Appellant Pro-Se
2) Katherine McKay Bollenbaucher 2485 Highway 96 S. Lumberton, Texas 77657 Appellee
3) Packard LaPray
124B Orleans
Beaumont, Texas 77701
Attorney For Appellee
(2) TABLE OF CONTENTS
Cover 1
Identity of Parties 2
Table of Contents 3
Index of Authorities 4-H
Statement of Facts and Procedural History 9—11
Summary of Arguments 1.2— 13
Issues Presented 1 4--- '23
Paints of Errors With Arguments 24 --:43
Requested Relief Mk—
Prayer 45
Certificate of Service 46
Declaration 45
3) INDEX OF AUTHORITIES
CASE LAW PAGE
Amelia's Inc. v. Rodriguez, 921 S.U.2d 767 31 Alsenz v. Alsenz, 101 S.W.3d 648 28
Am. Gen.Fire& Cas. Co. v. Shatman, 761 S.W.2d 582 38 Austin v. Shaminie, 94B S.W.2d 927 31 Bahr v. Kahr, 980 S.W.2d 727 • 29 Barnett v. Barnett, 67 S.ld.3d 104 (tx.2001) 28 Berry v. Berry, 647 S.U.2d 945 (tx.2001) 30 Board of Trus.of Bastrop I.5.D. v. Tougate, 959 S.W.2d 365(tx.1 997)... 32 Bohn v. Bohn, 455 5.W.2d 404 29 Brouseau v. Ranzou, 25 5.W.3d 285 32 Browning v. Prostok, 163 S.W.3d 336 (tx.2005) 42 Burchfield v. Finch, 918 S.W.2d 422 34 Calduell v. Barnes, 975 S.U.2d 535 (tx.1990) 33 Caldwell II, 154 S.W.3d @ 197 (tx.2004) 32 Camp v. Camp, 972 S.W.Zd 906 29 Campbell v. Campbell, 5B7 S.W.Zd 513 29
Carson v. Gomez, 14 S.W.3d 77B 27 Cash v. Beau. Dealers Auto Auct. Inc., 275 S.W.3d 91B 43 CCGECPW u R of M v. Arriba Ltd., B82 5.W.2d 576 32
Cho v. Hong, 249 S.W.3d 441 31 Golden v. Alexander, 171 S.U.2d 32B (tx.1943) 28 D B v. K B, 176 S.U.3d 343 28 Dean v. Kirk, 508 S.W.2d 70 (tx.1974) 41 Decker v. Decker, 192 S.W.3d 648 29 Ehsrle v. Adams, 73 S.W.3d 322 28 Eggemeyer v. Eggemeyer, 554 S.W.2d 149 (tx.1977) 29
(4) INDEX OF AUTHORITIES
PAGE CASE Lflhl 2 5 Fruong v. City of Houston, 99 S.U.3d 2Q4 Finn v. Finn, 658 S.W.2d 735 25 Fisher-Stoker v. Stoker, 174 S.W.3d 272 30 Flores v. Flores, 116 S.W.3d B70 25 Foley v. Parlier, 68 5.bl.3d B70 31 33 Freeman v. State, 96 S.Li.3d 827 34 Gainous v. Gainous, 219 S.W.3d 97 Gorman v. Life Ins., 859 S.lii.2d 3B9 31 Handley v. Handley, 122 S.lil.3d 904 31 Henry S. Miller v. Evans, 459 S.III.2d 426 (tx.1970) 28 In Re Dynamic Health, Inc., 32 S.ti).3d B76 25 In Re E R, 385 S.L).3d 552 (tx.2D12) k2 In Re Husain, 168 BR 591 7 In Re K.R., 32 S.W.3d 85 In Re Marriage of Ham, 59 S.U.3d 326 In Re Marriage of Notash, 110 S.W.3d 86B ^ In Re North Am. Refrac. Div. Cd ., B3 5.L).3d 97 Jones v. Jones, 154 S.W.3d 229 35 Langdale v. Villimil, 813 5.L!.2d 443 32 Laurence v. Laurence, 911 S.W.2d 463 h0 LBL Oil Co. v. International Pouer Serv., 777 S.kl.2d 390 39 Limbaugh v. Limbaugh, 91 S.Id. 3d 1 Lofflano Brae. Co. v. Downey, 822 5.LI.2d 249 32 Lopez v. Lopez, 754 S.W.2d 921 (tx.198B) 32 Lome v. Gulf States Utilities Co., 75 S.U.3d 449 2B Mabon, Ltd., 369 S.lil.3d 312 (tx.2012) 32
(5) INDEX OF AUTHORITIES
PAGE CASE LAW
Matter of Marriage of Devine, B69 S.U.2d 45 2B Middleton v. Murff, 6B9 S.W.2d 212 (tx.1985) ^2 Moore v. Moore, 840 S.W.2d 821 2B Mowbray v. Avery, 76 S.W.3d 663 39 Nichols v. Jack Ekerd Corp., 908 S.UJ.2d 5 . . ^ Pinkston v. Pinkston, 266 S.W.2d 575 3S PSU-Exts. Elec. v. TreJD, 166 S.Ll.3d B89 33 Reiss v. Reiss, 11B S.W.3d 439 (tx.2D03) 3<* Roach v. Roach, 672 S.W.2d 524 3D Roberts v. Roberts, 999 S.U.2d 424 29 Rusk v. Rusk, 5 S.UI. 299 M Schindler Elevator Corp. v. Anderson, 7B S.U.3d 309 32 Schuleter v. Schuleter, 929 S.kJ.2d 96 31 Scott v. Scott, 805 S.U.2d BBS 29 Shanks v. Treaduay, 110 5.W.3d 44 (tx.2003) 3^ Shindler v. Anderson, 9B5 S.W.2d 342 28 Smith v. Smith, B36 S.W.2d 422 3Q Smith v. Smith, 225 S.W.3d 140 2G Soloman, Lambert, Roth & Assoc, v. Kidd, 904 S.W.2d 897 32 State v. 1985 Chev. Pick-up Truck, 77B 5.U.2d 463 33 Strauder v. Thomas, 846 S.Li.2d 61 33 Taggart v. Taggart, 552 S.U.2d 423 (tx.1977) 34 Toles v. Tales, 45 S.LL3d 253 31 Turner v. Montgomery, 831 5.til.2d B48 25 Union City Bady Inc. v. Ramirez, 911 S.W.2d 196 32 Ualling v. Metcalfe, B63 S.W.2d 298 (tx.1993) ^2 Walton v. Walton, 864 S.W.2d 652 29 Welder v. Welder, 794 S.U.2d 420 29
(ro INDEX OF AUTHORITIES
West Tex. State Bank v. General Res. Mamt.,757 S.W.2d 304 32 Williams v. Donnelly, 113 S.W.3d 10 25 Williams v. Lavender, 797 S.W.2d 410 31 Winkle v. Winkle, 931 S.W.2d 420 • 2g Little v. U.S. Fidelity & Guaranty, 217 Miss. 576, 64 So.2d 697 . . 30
FEDERAL CASE LAWS
Compo Computar Corp. v. Pracon Tech, Inc., 98B F.Supp. 1409 . . . . 25
Eventes v. Sacoin, 407 U.S.67, B092 5. Ct. 1983 33 2B Haslip, 449 U.S. 1, @ 21 27 Lemon v. Skidmore, 985 F.2d 354 Matter of Parrish, 7 F.3d 76 (Tex.) 2B Ray v. Lueben, 812 F.2d 179 26
CONSTITUTION CITATIONS
U.S. Const. Amend. 5 27 U.S. Const. Amend. 6 27 U.S. Canst. Amend. 14 27 Tex. Const. Art. 1 § 9 27 2^ Tex. Canst. Art. 16 § 15
STATUTES
Civ. Prac.Sc Rem. Codes, Art.§ B.219 32 Civ. Prac.S Rem. Codes, Art.§ 16.051 19
7) INDEX DF AUTHORITIES
Civ. Prac.S: Rem. Codes, Art. 162 § 2 32 Tex. Rules Of Civ. Proc, Rule 21 32 Tex. Rules af Civ. Proc, Rule 21a 32 Tex. Rules of Civ. Proc, Rule 124 41 Tex. Rules Df Civ. Proc., Rule 3D5 42 Tex. Rules af Civ. Prac, Rule 306 21
Tex. Rules of Civ. Prac., Rule 316 15 Tex. Family Code, § 3.001 (1) 17 Tex. Family Code, § 3.002 32 Tex. Family Code, § 6.703 31 Tex. Family Code, § 7.001 34 Tex. Family Code, § 9.0029 32 Tex. Family Code, § 9.DOB 34 Tex. Gov't Code, § 24.016 24 Tex. Rules of App. Proc, Rule 33.1 (a) 21 Tex. Rules of Evidence, Rule 503 21 Tex. Penal Code, § 32.10 37 Tex. Penal Code, § 32.46 37
(8) STATEMENT OF THE CASE
PROCEDURAL HISTORY
JUNE 25,2009 : Appellant received Citation of Divorce by Certified Mail and not a Constable as required per Judge Shelton's Order (Phone Hearing MAY 12,2016)..; JULY 1,2009 : An Ex Parte Hearing was held in the 279th District Court, Exhibits and Testimony was given without Appellant present (see: Transcript JULY 1,2009 on file).
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OW-OOHIS-CV
CASE NO. F-02252B9 DEC 1 1 2017 CAROLANNE HAHLEY CLERKOFTHECOURT NINTH COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE
THIRTEENTH DISTRICT OF TEXAS
iAMES ALLEN PELLOAT, APPELLANT PRO-SE
U .
KATHERINE McKAY BQLLENBAUCHER, APPELLEE
ON APPEAL FROM THE 279th JUDICIAL DISTRICT
COURT OF 3EFFER5QN COUNTY, TEXAS
APPELLANT'S BRIEF
3ames Allen Pelloat TDCJ # 1289716 C.T.TERRELL UNIT 1300 FM 655 Rosharon, Tbx .77583 IDENTITY OF PARTIES AND COUNSEL
1) James Allen Pelloat T.D.C.3. # 1289716
C.T.Terrell Unit
1300 FM 655
Rosharan, Texas 77583
Appellant Pro-Se
2) Katherine McKay Bollenbaucher 2485 Highway 96 S. Lumberton, Texas 77657 Appellee
3) Packard LaPray
124B Orleans
Beaumont, Texas 77701
Attorney For Appellee
(2) TABLE OF CONTENTS
Cover 1
Identity of Parties 2
Table of Contents 3
Index of Authorities 4-H
Statement of Facts and Procedural History 9—11
Summary of Arguments 1.2— 13
Issues Presented 1 4--- '23
Paints of Errors With Arguments 24 --:43
Requested Relief Mk—
Prayer 45
Certificate of Service 46
Declaration 45
3) INDEX OF AUTHORITIES
CASE LAW PAGE
Amelia's Inc. v. Rodriguez, 921 S.U.2d 767 31 Alsenz v. Alsenz, 101 S.W.3d 648 28
Am. Gen.Fire& Cas. Co. v. Shatman, 761 S.W.2d 582 38 Austin v. Shaminie, 94B S.W.2d 927 31 Bahr v. Kahr, 980 S.W.2d 727 • 29 Barnett v. Barnett, 67 S.ld.3d 104 (tx.2001) 28 Berry v. Berry, 647 S.U.2d 945 (tx.2001) 30 Board of Trus.of Bastrop I.5.D. v. Tougate, 959 S.W.2d 365(tx.1 997)... 32 Bohn v. Bohn, 455 5.W.2d 404 29 Brouseau v. Ranzou, 25 5.W.3d 285 32 Browning v. Prostok, 163 S.W.3d 336 (tx.2005) 42 Burchfield v. Finch, 918 S.W.2d 422 34 Calduell v. Barnes, 975 S.U.2d 535 (tx.1990) 33 Caldwell II, 154 S.W.3d @ 197 (tx.2004) 32 Camp v. Camp, 972 S.W.Zd 906 29 Campbell v. Campbell, 5B7 S.W.Zd 513 29
Carson v. Gomez, 14 S.W.3d 77B 27 Cash v. Beau. Dealers Auto Auct. Inc., 275 S.W.3d 91B 43 CCGECPW u R of M v. Arriba Ltd., B82 5.W.2d 576 32
Cho v. Hong, 249 S.W.3d 441 31 Golden v. Alexander, 171 S.U.2d 32B (tx.1943) 28 D B v. K B, 176 S.U.3d 343 28 Dean v. Kirk, 508 S.W.2d 70 (tx.1974) 41 Decker v. Decker, 192 S.W.3d 648 29 Ehsrle v. Adams, 73 S.W.3d 322 28 Eggemeyer v. Eggemeyer, 554 S.W.2d 149 (tx.1977) 29
(4) INDEX OF AUTHORITIES
PAGE CASE Lflhl 2 5 Fruong v. City of Houston, 99 S.U.3d 2Q4 Finn v. Finn, 658 S.W.2d 735 25 Fisher-Stoker v. Stoker, 174 S.W.3d 272 30 Flores v. Flores, 116 S.W.3d B70 25 Foley v. Parlier, 68 5.bl.3d B70 31 33 Freeman v. State, 96 S.Li.3d 827 34 Gainous v. Gainous, 219 S.W.3d 97 Gorman v. Life Ins., 859 S.lii.2d 3B9 31 Handley v. Handley, 122 S.lil.3d 904 31 Henry S. Miller v. Evans, 459 S.III.2d 426 (tx.1970) 28 In Re Dynamic Health, Inc., 32 S.ti).3d B76 25 In Re E R, 385 S.L).3d 552 (tx.2D12) k2 In Re Husain, 168 BR 591 7 In Re K.R., 32 S.W.3d 85 In Re Marriage of Ham, 59 S.U.3d 326 In Re Marriage of Notash, 110 S.W.3d 86B ^ In Re North Am. Refrac. Div. Cd ., B3 5.L).3d 97 Jones v. Jones, 154 S.W.3d 229 35 Langdale v. Villimil, 813 5.L!.2d 443 32 Laurence v. Laurence, 911 S.W.2d 463 h0 LBL Oil Co. v. International Pouer Serv., 777 S.kl.2d 390 39 Limbaugh v. Limbaugh, 91 S.Id. 3d 1 Lofflano Brae. Co. v. Downey, 822 5.LI.2d 249 32 Lopez v. Lopez, 754 S.W.2d 921 (tx.198B) 32 Lome v. Gulf States Utilities Co., 75 S.U.3d 449 2B Mabon, Ltd., 369 S.lil.3d 312 (tx.2012) 32
(5) INDEX OF AUTHORITIES
PAGE CASE LAW
Matter of Marriage of Devine, B69 S.U.2d 45 2B Middleton v. Murff, 6B9 S.W.2d 212 (tx.1985) ^2 Moore v. Moore, 840 S.W.2d 821 2B Mowbray v. Avery, 76 S.W.3d 663 39 Nichols v. Jack Ekerd Corp., 908 S.UJ.2d 5 . . ^ Pinkston v. Pinkston, 266 S.W.2d 575 3S PSU-Exts. Elec. v. TreJD, 166 S.Ll.3d B89 33 Reiss v. Reiss, 11B S.W.3d 439 (tx.2D03) 3<* Roach v. Roach, 672 S.W.2d 524 3D Roberts v. Roberts, 999 S.U.2d 424 29 Rusk v. Rusk, 5 S.UI. 299 M Schindler Elevator Corp. v. Anderson, 7B S.U.3d 309 32 Schuleter v. Schuleter, 929 S.kJ.2d 96 31 Scott v. Scott, 805 S.U.2d BBS 29 Shanks v. Treaduay, 110 5.W.3d 44 (tx.2003) 3^ Shindler v. Anderson, 9B5 S.W.2d 342 28 Smith v. Smith, B36 S.W.2d 422 3Q Smith v. Smith, 225 S.W.3d 140 2G Soloman, Lambert, Roth & Assoc, v. Kidd, 904 S.W.2d 897 32 State v. 1985 Chev. Pick-up Truck, 77B 5.U.2d 463 33 Strauder v. Thomas, 846 S.Li.2d 61 33 Taggart v. Taggart, 552 S.U.2d 423 (tx.1977) 34 Toles v. Tales, 45 S.LL3d 253 31 Turner v. Montgomery, 831 5.til.2d B48 25 Union City Bady Inc. v. Ramirez, 911 S.W.2d 196 32 Ualling v. Metcalfe, B63 S.W.2d 298 (tx.1993) ^2 Walton v. Walton, 864 S.W.2d 652 29 Welder v. Welder, 794 S.U.2d 420 29
(ro INDEX OF AUTHORITIES
West Tex. State Bank v. General Res. Mamt.,757 S.W.2d 304 32 Williams v. Donnelly, 113 S.W.3d 10 25 Williams v. Lavender, 797 S.W.2d 410 31 Winkle v. Winkle, 931 S.W.2d 420 • 2g Little v. U.S. Fidelity & Guaranty, 217 Miss. 576, 64 So.2d 697 . . 30
FEDERAL CASE LAWS
Compo Computar Corp. v. Pracon Tech, Inc., 98B F.Supp. 1409 . . . . 25
Eventes v. Sacoin, 407 U.S.67, B092 5. Ct. 1983 33 2B Haslip, 449 U.S. 1, @ 21 27 Lemon v. Skidmore, 985 F.2d 354 Matter of Parrish, 7 F.3d 76 (Tex.) 2B Ray v. Lueben, 812 F.2d 179 26
CONSTITUTION CITATIONS
U.S. Const. Amend. 5 27 U.S. Const. Amend. 6 27 U.S. Canst. Amend. 14 27 Tex. Const. Art. 1 § 9 27 2^ Tex. Canst. Art. 16 § 15
STATUTES
Civ. Prac.Sc Rem. Codes, Art.§ B.219 32 Civ. Prac.S Rem. Codes, Art.§ 16.051 19
7) INDEX DF AUTHORITIES
Civ. Prac.S: Rem. Codes, Art. 162 § 2 32 Tex. Rules Of Civ. Proc, Rule 21 32 Tex. Rules af Civ. Proc, Rule 21a 32 Tex. Rules of Civ. Proc, Rule 124 41 Tex. Rules Df Civ. Proc., Rule 3D5 42 Tex. Rules af Civ. Prac, Rule 306 21
Tex. Rules of Civ. Prac., Rule 316 15 Tex. Family Code, § 3.001 (1) 17 Tex. Family Code, § 3.002 32 Tex. Family Code, § 6.703 31 Tex. Family Code, § 7.001 34 Tex. Family Code, § 9.0029 32 Tex. Family Code, § 9.DOB 34 Tex. Gov't Code, § 24.016 24 Tex. Rules of App. Proc, Rule 33.1 (a) 21 Tex. Rules of Evidence, Rule 503 21 Tex. Penal Code, § 32.10 37 Tex. Penal Code, § 32.46 37
(8) STATEMENT OF THE CASE
PROCEDURAL HISTORY
JUNE 25,2009 : Appellant received Citation of Divorce by Certified Mail and not a Constable as required per Judge Shelton's Order (Phone Hearing MAY 12,2016)..; JULY 1,2009 : An Ex Parte Hearing was held in the 279th District Court, Exhibits and Testimony was given without Appellant present (see: Transcript JULY 1,2009 on file). Thereat Judge Shelton GRANTED Appellee, Katherine McKay, 100% complete control and custody of ALL marital assets and funds, including Appellants' Texas Teachers' Retirement Annuity, rendering Appellant Indigent and Desolate..; AUGUST 26,2009 : Appellant Filed MOTIDN FOR DISCOVERY..; OCTOBER 5,2009 : In a Phone Hearing Appellant again spoke his REQUEST FOR DISCOVERY which was Ignored by Judge Shelton (see: Transcript October 5,2009) ..; NOVEMBER 9,2009 : Appellant again Filed a MOTION FDR DISCOVERY. All went unanswered by Attorney for Appellee, Troy D. Soileau and Judge Shelton.; AUGUST 23-26,2010 : Jury Trial for Divorce uas held in the 279th District Court. Transcript currently unavailable due to extreme cost and the unavailability of the Court Reporter..; APRIL 25 2D11 : Final Decree of Divorce signed by Judge Shelton ignoring OBJECTIONS filed MARCH 8 & 10, 2011..; JULY 11,2011, AUGUST 16,2011,and AUGUST 17,2011 : Attorney Troy Soileau Filed NUNC PRO TUNCs with Judge Shelton without notifying Appellant of Judgments to be presented and signed and without attaching a Certificate of Service to each document as required by the Texas Rules of Civil Pracedurs..;
AUGUST 24,2011 : Appellant received All Three NUNC PRO TUNCs from Attorney Troy Soileau with a letter dated AUGUST 17,2011 stating," this is what I have done since the Signing of the Final Decree of Divorce on APRIL 25,2011..;
(9) HAY 15 Z015 :Appelant sent letter to Att. Melody Petit* concerning QDRO end her use of SPECIAL INSTRUCTION 1,claiming the valuation date to extend number of years married from May 20D0, the date of Retirement, until August 20!0, the date of Divorce, noting valuation date had to do with the Death of one party and neither Appellee nor Appellant had Died..; 3UNE 20 2015 :Att. Melody Petitt Filed an AMENDED MOTION to sign QDRO, dropping Special Instruction 1and adding Special Instruction 6, claiming to make the QDRO fit the Teachers' Retirement Guidelines..; SEPTEMBER 22,2015 :Appellant Filed AMENDED BILL OF REVIEW MOTION..; MAY 12,2016 :BILL OF REVIEW MOTION uas Denied by Dudge Shelton stating Appellee had not been properly served..; AUCUST U.2016 :3udBe Shelton signed Appellee's MOTION TO SIGN QDRO as Amended OVER protests made by Appellant (see: Transcript August 1^,2016), n nQnan+iq RTM AUGUST 3,2017 : Hearing on Appellant's biLL OF ur REVIEW held and Denied by Judge Shelton ;Moreso, the Hearing was limited to Only 30 minutes by Judge Shelton which caused MANY objections to be omitted....
(11 Attorney far Appellee did File and Caused to be signed a NUNC PRO TUNC Final Decree of Divorce, a First Amended NUNC PRO TUNC Final
Decree of Divorce, and a Second Amended NUNC PRO TUNC Final Decree of Divorce WITHOUT notifying Appellant on any Judgments tD be submitted and signed, violating ALL Tex. Rules of Civil Prac.rules concerning Proper Service ar a Certificate of Service, violating the Due Process and Fundamental Clauses of the United States and Texas' Constitutions..
Lack of Notice VOIDS any Judgments( Rule 124, Tx.R.Civ.Proc.,-No Service No Judgment).. Since Att. Troy Soileau filed the whole Decree each time with the NUNC PRO TUNCs instead of only the "Clerical Issues" to be corrected, each Judgment in its' Entirety is VOID.. Appellant is suffering under a wrongfully acquired Judgment which satisfies EQUITY for the BILL OF REVIEW, and Appellant should be GRANTED the Relief requested herein...
(13) ISSUES DEFINED
ABUSE OF DISCRETION
JUDGE SHELTON ABUSED HIS DISCRETION WHEN HE:
(1) held an Ex Parte Hearing on July 1,2009 without Appellant or
Attorney present, even by Phone,;
(2) ignored and failed to consider a Request from Appellant far DISCOVER on October 5,2009, having already ignored a previous Request For Discovery on August 9,2009,; (3) Denied Appointment of Counsel for Indigent Appellant, who was made Indigent on July 1 ,2009 at the Ex Parte Hearing by Judge Shelton Granting SOLE and EXCLUSIVE control of Appellant's Teachers' Retirement Annuity to Appellee, Katherine McKay, do October 5,2009, January 5,2010, and August 24,2010,; (4) farced Appellant, over his OBJECTIONS, into wearing identifiable prison/jail attire and Leg Shackles during the entire Trial for Divorce, even when Appellant made it known to the Court that Free World Clothes were available at the County Jail,; (5) failed to follow correct and proper procedures to ensure a Fair and Impartial Trial or ta Hold a Hearing to determine whether ar not
Appellant was a Extreme Risk ta the Court, Jury and/ar Spectators that would require Appellant to be dress in prison/jail clothes and shackled, or to Admonish the Jury as to why Appellant was so dressed, and was to be Tried far his Guilt or Innocence an a TORT Claim and had his Freedom even more threatened by Attorney for Appellee when Attorney stated in Court that the District Attorneys from Jefferson and Newton Counties would be present to decide after hearing Testimony whether ar not additional Charges on Appellant would be Filed,;
(14) (6) allowed the Jury to Award Damages af $10,000 and Exemplary Damages af S750,000 and $250,000 when No Actual damages were Proven and were clearly Excessive,; (7) allowed the Home at 212 south 15th Street, Nederland, Texas, to be put to the Jury to decide who the House belonged to..,knowing that the House was Deeded to Appellant and Appellant Only at his Mothers* death on October 3,2003, and the Warranty Deed had and/or showed No Intention of granting Appellee the House as a Gift or Na Separate Property Recital giving to her as her Separated Property. The issue was again brought to the Courts' attention in ALL APPEALS and at the Hearing on Appellants' BILL OF REVIEW held August 3,2017. Inherited Property is Separate Property per se,; (B) awarded 75% of the Community Property to Appellee which was more than \ of the Community Estate, and by Law must be Justified by the Judge which has yet to be done. That makes the Fault of the Appellant Conduct the only issue Recorded requiring the ordering of 75% of the Community Property and Tort Damages totalling $1,010,000.00, constituting a Forbidden Double Recovery,; (9) at the Trial for Divorce, stopped the Trial and called ONLY Appellees Attorney, Troy Soileau, into his Chambers for a One-on-One Ex Parte Conversation, which was an Illegal Ex Parte Conversation and Strongly hinted af Civil Conspiracy between the Two,; (10) signed the NUNC PRO TUNCs dated July 11,2011, August 16,2011, and August 17,2011, uithout requiring a Certificate of Service or a Sworn Letter citing compliance with the Rules of Service pursuant to Rule 21a, Tx.R.Civ.Proc, and such were Signed in the privacy of Judges' Chambers instead of in Open Court as is required pursuant to Rule 316, Tx.R.Civ.Proc.,; (11) set Phone Hearing for November 5,2009, November 28,2011, April 20,2012, and July 20,2016 without sending Appellant ANY NOTICE as to the date of the Hearings and what was to be discussed at those Hearings. .
(15) Such failings amounts to Extrinsic Fraud, Deprivation of Due Process and Fundamental Fairness, and Denying Appellant his RIGHT to Fully Defend his case, and Illegally initiating Ex Parte Conversations by informing Appellees' Attorneys of the dates and what was to be decided ahead of time. (12) got angry when Appellant questioned about the numbers of years going onto the QDRO, and threatened to remove Appellant from the August 14,2015 Hearing (see; Phone Transcripts). Appellant was attempting to get clarification on the number of years of Marriage that would be used. According to the Taggart formula set by the Supreme Court of Texas, as while Married under the Retirement plan, but on the QDRO it stated the number of years Married moving the date of Retirement Benefits from May 2000, tD the date of Divorce- August 2010, or an extra 10 years and 3 months of Benefits to Appellee. Judge Shelton cut the Hearing short without allowing Appellant to Cite all of his issues, i.e. Special Instruction 6, and Arbitrarily signed the QDRD over the Appellants' OBJECTIONS and without giving clear number of years going onto the QDRO,; (13) asked Ms. Petitt, Appellees* second Attorney, after the Hearing ended and Appellant got off the Phone, » Melody, would you send him a copy of what was done Today?" (see: Transcript August 14,2015 p.26). According to the Tex .R.CIV.PROC., Rule 306(3), it is the Clerk of the Court's Responsibility to IMMEDIATELLY NOTIFY EACH CONCERNED PARTY that a Judgment was Signed and NOT the Opposing Attorney's Responsibility. This was a Factual Ex Parte Conversation and a showing of Bias and Favoritism,;
(16) (";4) at the Hearing scheduled May 12,2001, originally scheduled for 1:30 pm but not held until 3:30 pm, asked if Appellant had properly Served Appellee with the Citation of the BILL OF REVIEW by Constable, and Appellant said,"No, the Lawyer had been Served". The Judge responded," well, no one is here", leaving the impression with Appellant that Appellee's Attorney and/or Appellee were either told not ta show up ahead of time or that or at the scheduled 1:30 pm Hearing by the Judge or one of the Courts' Staff who had been told what to tell them. This advice amounted to an ILLEGAL
Ex Parte Conversation between Judge SheltDn and Appellee which was not only an Abuse of Discretion but also Judicial Misconduct and Civil Conspiracy,(see: Transcript May 12,2016 included as Exh.),; (15) ignored a MOTION FOR AW INJUNCTION to stop Appelle from selling the House at 212 south 15th.Street, Nederland, Texas, Filed on/about July 6,2017...,and then Defying The Supreme Court of Texas by Denying Appellants' Claim that the House was Inherited when Appellants' Mother passed away on October 2003 and was Appellants' Separate Property by Inception of Title. The Supreme Court has Ruled on many occasions that Separate or Community Property is Decided at the time of Inception of Title and DOES NDT change throughout any number of Transformation,; (16) denied Appellants' Exhibit concerning the Number of Years to be put in the Record determining the Community Property Interest in Appellants' Teachers' Retirement System Annuity. Judge Shelton allowed Appellee Piece of Evidence showing the Marriage lasted 23.25 Years, confusing the number Df years spelled out in Taggart, but when Appellant admitted his Evidence giving the correct Years that could apply under Taggart it usas Denied by Judge as Confusing to the Jury,; (17) on August 3,2011, held a Hearing that was Filed with the Court Clerk as a " ORDER SETTING TRIAL "; however, Judge's letter to
Appellant stated the Hearing was concerning a BILL OF REVIEW, limiting the Time to only 30 minutes. It was an Official Mistake
(17) as well as an Abuse of Discretion to change the Order For Trial Betting to a Hearing, especially limiting the Time to just 30 minutes considering the Time Span covered in the BILL OF REVIEW which is dated from June 19,2009 up to the present day,;
(18) after more than enough Evidence, but not all of it, was supplied which clearly supported a Primie Facie Case, instead of ;. automatically Setting a Trial Date as required, the Judge arbitrairly and without regards to existing Laws as is required by the Tex.R.Civ.Proc., Denied Appellants' MDTION, which such Action was not only an Abuse of Discretion but also Violated Appellants' Due Process and Fundamental Fairness Clauses of the United States and Texas' Constitutions..
(1B) ISSUE TWO
EXTRINSIC FRAUD
FOUND IN TEX.CIV.PRAC.& REM.CODE, art. § 16.051
Extrinsic Fraud such as may provide bask setting aside a Judgment.., is Fraud which Denies a Party the opportunity ta Fully Litigate upon Trial ALL Rights of Defense the Party is entitled to assert..
(1) Denial or Ignoring of Appellants' Legally Filed Motion Far Discovery on August 2009, October 2009, and November 2009 were not only Extrinsic Fraud, because Judge denied the Full Facts of the Case to Appellant, but deprived Appellant of Due Process and Fundamental Fairness..Moreso, the blatant refusal of Att.Troy Soileau to divulge the Facts Of The Case to be discussed at Trial amounted to Attorney coming into Court with unclean hands which Tainted all Court Proceeding after the year 2009,; (2) There was No Form of Service or Certification of Service in the NUNC PRO TUNC Final Decree of Divorce, neither in the First Amended NUNC PRO TUNC Final Decree of Divorce nor in the Second Amended NUNC PRO TUNC Final Decree of Divorce. All 3 NUNC PRO TUNCs are examples of Extrinsic Fraud and since certain items were removed from the Final Decree of Divorce, the NUNC PRO TUNCs did not merely deal with the addition or changing of Appelles' Name, but some type of Ex Parte Conversation was held between Judge Shelton and Att.Troy Soileau.Appellees' Lawyer, (see: Copies of All NUNC PRO TUNCs on File with Court),; (3) The lack of meaningful Notice to the Hearings of November 3,2009, November 28,2012, April 20,2014, and July 20,2017 was Extrinsic Fraud. Appellant was NOT given advance notices by Judge Shelton that a Phone Hearing had been Set nor was Appellant informed as to what all would be discussed, leading Appellant totally unprepared at the Hearings, depriving Appellant of Due Process, and being unable to Defend himself against opponent who were properly notified, (see: Transcript, lack of Notice stated in Phone Hearings of April 20,2012 and July 2017),;
(19) (4) It was an Official Mistake and Extrinsic Fraud when the Clerk
of the 279th District Court DID NOT immediately Notify ALL PARTIES
that a Judgment had been Signed pursuant to Rule 306(3) of the Tex.R.Civ.Proc. . On April 25,2011, Final Decree of Divorce was
Signed without Notifying Appellant of such and then rendering
Appellant Time-Barred from Appealing such on May 25,2011..
On July 11,2011 a NUNC PRO TUNC was signed without Notifying
Appellant of such and then rendering Appellant Time-Barred
from Appealing such on August 11,2011.. Then again, on August 16,2011
the First NUNC PRO TUNC(Amended), and on August 17,2011 the
5ecind Amended NUNC PRO TUNC, were signed without ANY
notification to Appellant of such and then rendering Appellant
Time-Barred from Appealing such. On September 5,2011 Appellant
Filed his First Request For a New Trial. No Where in the Record does this Notification from the Clerk of the Court appear..
(20) (2) signed ALL 3 NUNC PRO TUNCs' Final Decree of Divorce without requiring a Certificate of Service that ALL PARTIES had been served with a True Copy before the Judgment was signed,;
(3) misquoted the TAGGART v. TAGGART doctrine when Judge Shelton stated in the Charge to the Jury that it was the total months the Employee and Spouse were Married ( leaving out under the Retirement Plan ), and then letting the same be stated in the formula for the QDRO
ISSUE FOUR
VOIDABLE JUDGMENT
Appellant contends that pursuant to the TEX .R.CIV .PROC .,
the TEX.CIV.PRAC.& REM.CODE,and STATUTORY AUTHORITIES cited herein, the Final Decree of Divorce and its' subsequent NUNC PRO TUNCs are VOID as a matter of LAW due to Non-Compliance of Statute. Such Judgments were Signed in the absence of Appellant and without Notifying Appellant of their signore as required hy Statute. Thus, Appellant states that the Judgments of the Final Decree of Divorce, and subsequent NUNC PRO TUNCs, are in fact Void..
(22) ISSUE FIVE
DUE PROCESS VIOLATION
The Due Process Clause of the 14th Amendment to the United States Constitution
is designed to Protect against Arbitrary goverment actions. The Amendment prohibits ANY Government entity from depriving any Citizen of Life, Liberty, or Property without Due Process of Law. Due Process protections require that no Citizen of the United States, whether a Felon or not, he subjected to ANY Arbitrary deprivations of...property despite Judicial Official's interest in Discretion and flexibility.. Appellant contends herein that the Judicial Officials of the Trial
Court had REPEATEDLY, throughout this entire Divorce proceedings, exhibited
a strong Antagonism and Arbitrary Bias towards Appellant that did not make
for a Fair Judgments nor Trial which Unconstitutionally deprived Appellant
of his Property..
Appellant states that Court proceedings were Fundamentally Unfair,
causing many Abuses of Court Discretion, and Violated Appellants'
14th Amendment to the United States Constitution ..
(23) POINTS OF ERROR AND ARGUMENTS ISSUE ONE
The Appellate Court Reviews the Trial Courts' decisions under an ABUSE OF DISCRETION standard.. It is an Abuse of Discretion when the Trial Court, as to legal issues, acts without reference to Guidelines, Rules, or Principals, or as to Factual Issues, or acts in an Arbitrary or unreasonable manner. .
The following issues, except those involving the QDRO, have been brought ta the Courts' attention by way of :
(1) Appellant's Request for NEW TRIAL, denied by Judge Shelton;
(2) Appellant's Appeal to the Ninth Court of Appeals and to the Texas Supreme Court, both Denied as Time-Barred by a Reply to a Remand dated April 20,2012, where Judge Shelton and Att.Tray Soileau held Ex Parte Conversations to deliberately hinder and sabotage Appellants' Right to Appeal;
(3) Appellant's Motion for BILL OF REVIEW Filed on December 2012, again on June 2015 (First Amended)!, and again on July 2016 (Second Amended).. The BILL OF REVIEW were Denied by Judge Shelton an August 3,2017 without giving a reason for such Denial.. A Finding of Facts and Conclusions of Law Request was sent to Judge Shelton on August 12,2017.. Appellant received Respose on Sept .28,2017, but the " Past Due Findings » Filed on Sept.21,2017 has not been answered by the Court and a 3rd such Request has been issued as of date..
Appellant has not heen negligent and has brought ALL Legal Issues before the Court pursuant to the Rules and Guidelines of Statutory Authorities, (see: ALL Court Transcripts and Motions Filed)...
(24) (3) the Trial Court failed to give meaningful or any consideration to Appellants' repeated Motions Far Appointment of Counsel after making Appellant Indigent at the Ex Parte Hearing when Judge Shelton Awarded 100% control of Appellants' Retirement Annuity to Appellee, and then stating at Trial that HE neither had the Authority nor the Funds to Appoint Counsel for Appellant. The accuracy and proper division of property were at their peak, and the risk of Error on specifically troublesome paints of Law could have been properly argued by a professional Lawyer.. Chief Justice Oniell stated in 5mith v. Smith, 225 5.Ul.3d 140," By attempting to Represent himself,[defendant] was Disadvantaged from the outset. Laymen simply can not be expected to know how to protect their Rights when dealing with a practiced and carefully counseled Adversary".. Appellant was Forced to Defend himself by Judge Shelton's Abuse of Discretion in making Appellant indigent, destitute and then refusing Appellant his Right to Appointed Counsel.. There is a presumption that an indigent, incarcerated litigant has the Right to Appointed Counsel when the Risk of the proceeding might lead to confinement.. The admission in Court by Att.Troy Soileau that the District Attorneys from Jefferson and Newton Counties had been invited to hear testimony from witnesses to evaluate if further Charges would be Filed on Appellant clearly constituted a Possibility of Further Confinement.. Tex.Gov't Code, § 24.016 states that a District Judge may Appoint Counsel for an indigent Party in a Civil Case who makes an Affidavit that he is too poor to employ Counsel,, Thomas v. Anderson, B61 S.W.2d 58...
(4) the Trial Court forced Appellant to wear prison clothing throughout the WHOLE Trial Court proceedings., pursuant to the Tex.Rules of App.Proc., sec. 33.1 (a), as a prerequisite to presenting a complaint for Appellate Review, the Record must show the Complaint was made to the Trial Court by a Timely Objection (see: Reporters' record in Cause F-206473, Matter of Marriage of Pelloat) ..
(26) Because Appellant told the Court the Free-World clothing was avaiable for Him at the County Jail, the Trial Courts' Decision to Deny Appellant access to the Free-World clothing and Force Appellant To Act as His own Attorney in an Orange Jefferson County Jumpsuit and Bound with Shackles, was Arbitrary, Unreasonable, Shacking to the Concicus and clearly an Abuse af Discretion.. Under these circumstances, it Violated Appellants' Right to a Fair Trial, Guaranteed to him by the Due Process, Equal Protection, and Fundamental Fairness Clauses of the United States Constitution (U.S.C.A. Const .Amend., 5th, 6th, and 14th),, and also Art. 1, sec. 9, of the Texas' Constitution. . The mere fact that Appellant was incarcerated WA5 NOT suffient Reason to Shackle or Force Appellant into prison clothing, In re K.R.,22 S.W.3d B5.. Before any Judge should permit a case to proceed under such circumstances, He should be very sure of His grounds and the Record must reflect those Reasons.. The Record in Appellants' Cause is Void as to ANY Findings by the Trial Court for such a need to restrain the Appellant, Force him into wearing prison/jail clothing.. Moreso, the Record is Void as to the Trial Court giving curative instructions to the Jury..
(5) the Trial Court acted without regard for Guidelines, Rules or Principals, Abuse its' Discretion and rendered the Entire Trial Fundamentally Unfair, Denied Constitutional Rights of Due Process and Fair Trials, and made Appellant appear to be a meancing psycopath, presenting a clear and present danger to his Uife, to Veriremen and to all those passing within his grasp,,see; Lemon v. Skidmore, 985 F.2d 354..., Smith, supra § 140.., Carson v. Gomez,14 S.W.3d 77B.. Appellant was humiliated and embarassed to the point of .being Psychologically Disabled by the Trial Courts' Arbitrary and Unreasonable decision to Force Appellant to parade theough Voir-Doir and Trial wearing distinctively marked prison/jail clothing and clearly identifiable Leg-5hackles.. This unreasonable and Arbitrary decision by the Trial Court rendered the Entire Trial Fundamentalyy Unfair...
(27 (6) Trial Court awarded Damages to Appellee.. Appellant argues that Appellee WAS NOT entitled to Damages separately nor to the Community Estate because Appellee DID NUT prove any amount of actual Damages caused by the alleged Fraud by Appellant, and that Appellee had actual knowledge that Appellant not only approved of but once stated a desire to live the alternative life-style,, Matter of Marriage Devine, 869 S.W.2d 45... Without showing actual monetary loss, there can be No Damages, exemplary or any other kind,, Eberle v. Adams, 73 S.W.3d 322 THE COURT HAD AMPLE POWER AND EVEN THE DUTY TO PREVENT AN INJUSTICE and the Findings of the Jury was in Error and/or in Excessive,, Moore v. Moore, B40 S.W.2d B21.. The burden was on Appellee to establish Damages with reasonable certainty to ensure a Jury could compute passible Damages,, Lowe v. Gulf States Utilities Co., 75 S.W.3d 449.. Despite the Jury's broad discretion in awarding Damages, there must be some Evidence to justify the amount awarded, as a Jury can NOT simply pick a number and put it in the Blank as was done in Appellants' case,, Shindler v. Anderson, 985 S.W.2d 392.. Excessive Damages can nat put a Defendant into insolvency,, Haslip, 449 U.S. 1, @ 21 ..
(7) Trial Court awarded Separate Property to Appellee.. Appellant was egregiously Harmed when the Trial Court found that the Property known as 212 south 15th Street, Nederland, Texas was 100% Appellees' separate Property when Record will show that at the inception of
Title, the Property was GIVEN to Appellant and Appellant ONLY, on the death of Appellants' Mother, Lizzie Bell Lee Pelloat on Dctober 3,2003,, D.B. v. K.B., 176 S.W.3d 343...; Alsenz v. Alsenz, 101 5.W.3d 643...; Henry S. Miller v. Evans, 459 S.W.2d 426(Tx. 1970)..; Colden v. Alexander, 171 S.U.2d 328( Tx.1943)..; Matter of Parrish, 7 F.3d 76 (Ca.-5,Tx.) ..; Tex .Fam.Code, § 3.001(1) and § 3.002... Texas Law firmly fixes character of Property as 5eparate or Community at the time of Inception,, Ray v. U.5., 3B5 F.Supp. 372..; Barnett v. Barnett, 67 S.W.3d 104 (Tx.2001)...
(2B) Separate Property will keep its' character throughout a series of Exchanges,, Walton v. Walton, B64 S.W.2d 652..; Camp v. Camp, 972 S.W.2d 906..; Winkle v. Winkle, 931 5.W.2d 420..; Welder v. Welder, 794 S.W.2d442Q.... Appellant presented to the Court the Separate Property issue in His Motion For A New Trial and in His Appeal to the Ninth Court of Appeals.. Separate Property of one Spouse CAN NOT become the Separate Property of the other because the nature of property is determined by the Constitution rather than that which may be just and fair,, Tex. Const., Art. 16 § 15...; Eggemeyer v. EgggfflByer, 3.- •- r 554 S.W.2d 149 (Tx.1977)... The Warantee Deed Dated November 14, 2004 (see:Petitioners' Trial Exhibit 4) clearly shows NO INTENTION by Appellant to convey ownership of the House into Appellees' Separate Property as a Gift nor Separate Property Recital,, Roberts v. Roberts, 999 S.W.2d 424..; Bahr v. Kohr,
980 S.W.2d 727..; Scott v. Scott, 805 5.W.2d 885..; Campbell v. Campbell, 587 S.W.2d 513..; Bohn v. Bohn, 455 S.W.2d 404..; Decker v. Decker, 192 S.W.3d 645,657... The Instrument of Conveyance must contain a Separate Property Recital,, Scott, supra.. The Warranty Deed contains No such Recital or a Donative Intent. The presumption that property Deeded by one spouse to the other is Separate Property by gift unless, as noted above, the Deed was procured through Duress or Undue Influence.. Record will show that Appellant was arrested on November 7,2004 on 2 Felony accusations Charges.. By November 14,2009 word had spread to both Appellee and Appellant about eventual Lawsuits to take EVERYTHING that Appellant owned.. By this time, November 14,2009, Appellant had only been offered a PLEA BARGAIN of 99 years on one Charge. Facing a large number of years in prison and future Lawsuits, Appellant put the House that's in Nederland, Tex., in Appellees' name to preserve and protect His Family Home..,and also to provide a place for Appelle to live, and to have a Home for Appellant to Parole to in the Future. Additional Stress was added when Appellee refused to allow Appellant to put the House in His Daughter's Name; therefore, under Stress and Duress Appellant had no other choice but to put the House under Appellee's Name, but it was NOT as a Gift as Appellee and Her Attorney, Troy Soileau, sd Declared at Trial.. (29) The Trial Courts' Mischaracterization of said Property was Error, a Reversable Error.. A Trial Court CAN NDT diveat a 5pouse of his Separate Property,, Berry v. Berry, 647 S.W.2d 945(Tx.1983).; Roach v. Roach, 672 S.W.2d 524.. Appellant has shown that, at the Inception of Title, the House at 212 south 15th Street was put in Appellants' name, becoming His Separate Property...,there was NO Donative Intent nor Separate Property Recital in the Warranty Deed, and the House was Mis-Characterized at Trial which created a Reversable Error.. The Pelloat Family Home should be returned to Appellant as His Separate Property.. The House should in No Way be SOLD by Appellee, Katherine Bolenbaucher. . Appellant Filed a Motion For Injuction to prevent Sale of the House/Property, but it was Denied hy Judge Shelton , making Him Civilly Liable if Sold,, Rusk v. Rusk, 5 S.W.3d 299.; Little v. U.S.Fidelity & Guaranty, 217 MISS. 576, 64 So.2d 697,
(B) the Trial Court Egregiously Harmed Appellant by Awarding a Disproportionate share of the Community Property to Appellee (75%-Appellee to 25%-Appellant) without ANY justification.. Courts have held that circumstance MUST justify awarding more than \ of the Community Property to one Spouse,, Smith v. Smith, 836 S.U.2d 688,; Fisher-Stoker v. Stoker 174 S.W.3d 272.. There are 7 Reasons that a Judge might consider Ordering more than \ of the Community Property within the Tex.Family Code,§ 7.001..None of those Reasons were given by Judge Shelton; However, Fault was the ONLY thing discussed at the Trial, indicating that the Reason must be Fault.. While Fault may be considered, the Division of Property should NOT be punishment for the 5pouse at Fault.. Circumstance MU5T be justified,, Smith, supra.. A Double Recovery exists when a Plaintiff obtains more than One Recovery from the same injury.. A Double Recovery is impermissable when a Tort action is Tried with a Divorce, it is imperitive that the Court avoid a Double Recovery.. Appellant states that a Double Recovery occurred in His Case when Judge Shelton awarded 75% of the Community Property to Appellee without Any justification and then allowed $1 ,010,QD0.00 in Excessive and unproven damages to Appellee for the only item presented which was Appellants' crime
30) Therefore, if a Fact-Finder awards damages,.the Court must NOT consider the Tortous activity in the Division Df the Marital Estate.. Since the Tortious activity was the only thing discussed it should be safely assumed that the Tortious activity or Fault cauld be the only reason to Award 75% of the Community Property to Appellee as punishment and Double Recovery,, Toles v. Toles, 45 S.W.3d 253, rev.,Toles, 113 S.W.3d Bgg (Tex.)..; Schuleter v. Schuleter, 929 S.W.2d 96..; Cho v. Hong, 249 S.W.3d 441..; Foly v. Parlier, 68 S.li).3d 870... The Trial Court Erred when it made a Disproportionate Division of Community Property as to be inequitable,, Handley v• Handley, 122 S.W.3d 904.. There are very few cases where 75% - 25% is a Fair and Just share split of the Community Property but those ARE justified through Reasons contained within the Tex. Family Cade..
(9) the Trial Court allowed opposing Counsels' use of inflammatory language Appellant argues that He was egregiously Harmed by opposing Counsels' repeated inflammatory arguments so as to inflame the minds of the Jury, referring to Appellant as being a Dangerous Predatory Pedophile and/or Child-Molester that it could not have been cured by pulling apposing Counsel into the Judge's Chambers for an Ex Parte Conference during the Trial.. Unwarranted and Repeated personal attacks an Appellant must be seen as incurable, and it is clear that Att.Troy Soileau went outside the Record and indulged in Inflammatory language in order to influence the Jury tD return a high amount of Exemplary and Punitive Damages.. Courts have held that Objection is NOT required to preserve Error in the Case of incurable Arguments that were so inflammatory that it is Harmful and Prejudicial that it can not be cured by Personal Conference with the Judge nor Motion to Disregard,, Williams v. Lavender, 797 S.W.2d 410..; Gorman v. Life Ins., B59 S.W.2d 3B2..; Amelia's Inc. v. Rodriguez, 921 S.W.2d 767..; Austin v. Shaminie, 94B S.W.2d 927..
(31 ) (10) the Trial Court acted with disregard to Statutory Rules and Guidelines.. Appellant argues that the Rules relating to Service and Notice are MANDATORY, and a Judgment entered that does not comply with the Rules set regarding Certificate of Service or Notice is in All regards VOID,, Langdale v. Villimil, 813 S.U.2d 443..; Mabon, Ltd., 369 S.W.3d 312 (Tx.2012)..; Caldwell II, 154 5.LI.3d @ 197 (Tx.2004)..; Board of Trustees of Bastrop ISP v. Toungate, 959 S.W.2d 365 (Tx.1997(.. Courts have held that the Motion being sent for judgment must be given to ALL interested Partys by the Movant, or else the correction is a Nullity,, West Tx. State Bank v. Gen. Rest. Mgmt., 757 S.W.2d 304.. A judgment is VOID for Lack of Service,, CCGECP u R of M v. Arriba, Ltd, BB2 S.U.2d 576.. The Tex. Rules of Civ. Proc. requires Motions of ANY kind tD be in writing and contain a Certificate of Service,, Union City Body, Inc. v. Ramirez, 911 S.W.2d 196.; Loffland Brae. Co. v. Downey, 622 S.W.2d 249.. The Record will reflect that NONE of the
NUNC PRO TUNCs presented to and signed by the Judge contained any Certificate of Service or Notice as is required by Rule 21a of the Tx.R.Civ.Proc... Failure to comply with Service/Notice to opposing Counsel is Denial of a Partys' Right to be heard in a contested case,, Loffland, supra,,; Rule 8.219, Tx.Civ .Prac .& Rem.Code.. A Partys' Due Process Rights are Violated when He does not receive adequate Notice of a Hearing or Trial setting,, Brouseau v. Ranzau, 25 S.W.3d 285; Lopez v. Lopez, 754 S.W.2d 921 (Tx.1988)..; Soloman, Lambert, Roth & Assoc, v. Kidd, 904 S.W.2d 897.. Appellant DID NOT received NOTICE of any NUNC PRO TUNC proceedings nor that such were Signed by Judge Shelton.. Moreso, the Hearings of Nov.5,2009,, Nov.18,2012,, Apr.10,2014,, July 11,2017, Appellant was only given ONE DAY NOTICE of the Hearings by Prison Officials.. Nothing came from the Trial Court about the Date and Time of the Hearing nor what would be discussed thereat..
(32) The Supreme Court has made it clear that the Record of Service must show compliance with the Rules covering Service of process,, Caldwell v. Barnes, 975 S.W.2d 535 (Tx.1990).. Lack of Service is Denial of Due Process Constitutional Right, which relieves the showing of the Three Elements regulating a BILL OF REVIEW,, U.S.C .A. .Const. Amen.,1 4th._.; Caldwell II, supra @ 197.. If a judgment was rendered without Service in Accordance with Rules of Service, it renders the judgment VOID,, Strawder v. Thomas, 846 S.W.2d 61..; PSU-Exts. Elec. v Trejo, 166 S.U.3d 889..; Tx.R.Civ.Prac.,Rule 124.. The Final Decree and its' NUNC PRO TUNCs are ALL VOID Judgments, and Appellant is suffering from a wrongfully obtained:Oudgments. . Equity is satisfied and the Court should GRANT requested RELIEF,, State v. 19B5 Chev. Pick-up Truck, 77B S.W.2d 463.. Appellant argues that when Judge Shelton signed the NUNC PRU TUNC Final Decree of Divorce, it VOIDED the Original Final Decree of Divorce AND making everything signed on or after April 25,2011 Null and Void and ALL Properties and Judgments awarded are Void and a Nullity. . .
(11) the Trial Court violated Appellants' Due Process Rights.. Courts have held that failure to comply with Service or Notice to apposing Counsel Is Denial of that Partys' Right to be heard in contested case and a violation of Due Process,, Loffland, supra..; Caldwell, supra..;; U.5.C.A.,Const.Amend.,14th... Trial Court MU5T grant sufficient Time for Discovery and reasonable Notice of [any] Trial setting,, Freeman v. State, S.W.3d 827..; Tex.Const.,Art.1 § 19..; Brouseau, supra... A Party's Due Process Rights are violated when when He does not receive adequate Notice of a Hearing or Trial setting.,, Lopez, supra..; In. re.North Amer. Refrac. Div. Co., 83 S.W.3d 97..; Const. Law Digest, Keys 256.6 and 314.. Eventes v. Sacoin, 4D7 U.S. 67, B092 S.Ct. 19B3..
(33) The Court held in Eventes that 2 week Notice of a Trial setting is NOT meaningful Notice of Service...
(12) the Trial Court ORDERED the changing of the Division of Property..
A QDRO is a species of Post-Divorce Enforcement or Clarification. . It may not alter or change the Division af Property made ar approved in the Decree of Divorce which, according to the Rules of Service within the Tx.R.Civ.Proc, that Judgment is VOID for Lack of Service,, Tex.Fam.Code,§ 9.002a. .; Reiss v. Reiss, 118 S.W.3d 439 (Tx.2Q.Q3)..; Gainous v. Gainous, 219 S.W. 3d 97.. The Formula used at Trial was Taggart v. Taggart, 552 S.W.2d 423..
The Taggart Formula states that a Wife's share of a Husbands' Retirement is \ of the Community Property Interest determined by: COMMUNITY PROPERTY^ the number Df years married under the retirement plan divided by the number of
years worked under the plan
Appellant argues that the QDRO changed the Tap Number so as to say that the Standard Annuity is based on Salary and Service during Marriage The Top Number in the QDRO Formula had increased the Benefits earned during Marriage from 13 (Taggart) to 23 years,3 months.. The QDRO Formula significantly altered the Division of Property which violated the Texas' Supreme Court ruling stating that benefits are determined at Retirement and NOT at Divorce.. With a Fully Matured
Retirement Courts apply the Taggart Formula to determine the extent of the Community Interests,, Limbaugh v. Limbaugh, 91 S.W.3d 1 ,,; Appellants' Retirement was Fully Matured in 2000. . Thus, increasing the number of years of Marriage to the date of the Divorce in 2010 greatly changed the Division of Property.. The Taggart Formula is backed by the Courts in, Berry v. Berry, 647 S.W.2d 945 (Tx.1983),, Burchfield v. Finch, 91BS.W.2d 422 ,and Shanks v. Treadway,
110 5.U.3d 44 (Tx.2D03)
(34) As of 2015, a total of 24 Cases have cited Taggart in front of the Texas Supreme Court.. All have stated in partition action that a former Husbands' Retirement Benefits are to be apportioned based on Taggart at the Date of Retirement and NOT the Date of Divorce, except in certain cases where Retirement happens after Divorce..
The Courts' refusal of using Taggart instead of the QDRO Formula goes against the Guidelines, Rules, and Standards in place and is an Abuse of Discretion..
(13) the Trial Court Uver-Ruled Appellants' Objections regarding the unclear number of years used within the QDRO.. The QDRD must contain clear, concise numbers pursuant to the Tex.Farn .Code, § 9.008.. The QDRO that was Approved and Signed by Judge Shelton lacked clear
Numbers.. When Appellant questioned those unclear Numbers used or those to be used in the QDRO, Judge Shelton got Angry, threatened to remove Appellant from the Hearing, and abruptly and arbitrarily ended the Hearing by Signing the QDRO OVER Appellants' Objections.. Appellant was not able to Fully develop his Objection, especially the Addition Df Special Instruction 6 which was added by opposing Counsel, having removed Special Instruction 1 from Origonal Motion,, Jones v. Janes, 154 S.W.3d 225. . A Trial Court Errs when it enters an Amended QDRO, if there is nothing in the Record ta indicate the Amended QDRO was necessary.. The reason given was to meet requirements by the Teachers' Retirement System for a QDRO.. The only change was the withdrawal of Special Instruction 1 and adding Special Instruction 6 by Opposing Counsel.. On the Original Motion that contained Special Instruction 1, it mentioned a valuation date that extended the number Df years of Marriage to the date of Divorce.. As was told ta Appellees' Attorney, Ms.Petitt, in Appellants' Reply, valuation date had to do with the date Df death of a Spouse and neither Mrs.Bolenbaucher nar Appellant were dead.. Thus,
Special Instruction 1 was withdrawn and Special Instruction 6 was added to DEFRAUD the Teacher's Retirement System out of mare money..
(35) (14) the Trial Court DENIED Appellant to present Evidence.. Appellant was egregiously Harmed when Judge Shelton Denied Appellants' Evidence Exhibits and Stating that the Evidence would confuse the Jury because it had Two ways to determine Taggart; However, Judge Shelton allowed Appellee's Exhibits which stated that the number of years Married was 23.5 years tD confuse the Jury about the number of years to be used on the Top number of Taggart.. The Denial of One's Evidence and acceptance of another's clearly DEFIES Rule 403 af the Federal Rules of Civ.Proc. ., the 2Bth Amend, to the United States' Const.,,
and an Abuse of Discration.. .
(36) POINTS OF ERROR AND ARGUMENTS
ISSUE TWO
The type of Fraud necessary to Set Aside a Judgment in a DILL OF REVIEW action under Texas Law is Extrinsic Fraud pursuant to the Tex.Civ.Prac.& Rem.Code, Art.§ 16.051..; In re Husain, 168 BR 591 .. Any Fraud practiced on the Court is always Grounds far Vacating a Judgment.. Appellant states that the fallowing is where the Court was deceived or misled as a material circumstance:
In the July 1,2009 Ex Parte Hearing from Att.Soileau to Kathy McKay Soileau -" it is true you are receiving funds from Teacher's Retirement System?", McKay -" yes, I am".,
Appellant states that this was Fraud and Perjury to make Judge Shelton believe that Ms.McKay was receiving money from Teacher's Retirement System when in fact it was actually Appellant, James Allen Pelloat, that was receiving funds from the Teacher's Retirement System in the form of His Retirement Annuity. . More examples of Extrinsic Fraud occurred in the Final Decree
of Divorce, in the NUNC PRO TUNC Final Decree of Divorce, in the First Amended NUNC PRO TUNC Final Decree of Divorce, and in the Second Amended NUNC PRO TUNC Final D^crae of Divorce wh^n Att. Slileau listed 11 items of Prope.:rty tha t ;Ypp a 11 a n t could receive from Appellee, . The problem however was that each of those items belonged to Third Parties at the time the Divorce, and not owned by neither Appellee nor Appellant, creating Fraud on Appellant and the Court for Over $ 73,000-OD.. Each document and each item was a different Violation of the Texas
Penal Code § 32.10- Tampering with a Goverment Record..,and such could also be Prosecuted under Tex.Penal Cade § 32.46- Attempt to Defraud Another., sec.(2) causes or induces a Public Servant ta file on Record any propurted judgment or document..
(37) The examples of Extrinsic Fraud listed:
1()1 the Denial of Discovery;
2) the lack of Notice and Certificate of Service on ALL NUNC PRO
TUNCs signed by Judge Shelton;
3) the lack of Notice by Judge SHelton as to the Dates of Hearings and what was to be discussed at those Hearings with Appellant
only being left out; and
4) the Official Mistake and lack of the Clerk of the Court on NEVER sending Notice immediately to ALL Partys that the Judge had Signed a Document or Issued an ORDER..
All the above are well Documented under earlier proceedings, but Law Cases in support of Appellants' Arguments above are as fallow,, Flores, supra..; In re Husain, supra..; CCGECPW u R of M, supra..; Pinkston v. Pinkston, 266 S.W.2d 575..; Amer.Gen.Fire & Cas.Co. v. Shatman, 761 5.U.2d 582..; Tex.Civ.Prac. & REm.Code, Art. § 16.051. ..
(3B> POINTS QF ERROR AND ARGUMENTS
ISSUE THREE
UFFICIAL MISTAKE
Official Mistakes occur when an Official of the Court fails
to perform their Duties as they are Required and those Errors hinder Parties from properly Defending their Cases in Court..
Pursuant ta Rule 306a (3), Tex.R.Civ.Proc. , when a Final Judgment or other Appealable Order is Signed, the Clerk of the Court SHALL immediatelly give Notice to ALL Parties or Their Attorneys that the Judgment or Order was signed by First-Class Mail.. Official Mistake, for purpose of obtaining a BILL OF REVIEW, refers to either Erroneaus Information given by the Court ur an Official Court function or Mistake of Error of the same in the Discharge of required Official Duties,, Mowbray v. Avery, 76 S.W.3d 663,665.. The Clerk of the Court for the 279th District Court failed to
immediately sn-nd Notice that 1 ) the Final Decree of Divorce was Signed on April 25,2011, 2) the NUNC PRO TUNC Final Decree of Divorce was Signed on July 11,2011, 3) the First Amended NUNC PRO TUNC Final Decree of Divorce was Signed on August 16,2011, and 4) the Second NUNC PRO TUNC Final Decree of Divorce was Signed on August 17,2011.. Four (4) Official Mistakes were made as well as Failing to serve Notice on Appellant about the Declaration of Divorce which was Signed on August 26,2010.. Although
Appellant was present on August 26,2010 in Court, nothing was sent in writing to Appellant indicating the signing of such. . It was an Official Mistake by Judge Shelton when He Failed to require that a Certificate of Service be attached to the NUNC PRO TUNCs..
It was an Official Mistake of the District Clerk in Failing to require that a Certificate of Service be included in ALL Motions filed..
39) Review can be justified for Officials who improperly execute Their Official Duties or Official Mistake,, Nichols v. Jack Ekerd Corp., 908 S.W.2d 5.. Failure of the Court Clerk to send Notice is an Official Mistake,, Lawrence v. Laurence, 911 S.W.2d 463..
Dn April 20,2012 a Hearing was held.. Prior to the Hearing Judge Shelton and Att.Troy Soileau had discussed what was to be covered at the Hearing.. At some point during that Ex Parte Conversation Att.Soileau was told to bring a copy of everything to the Hearing that He had sent to Appellant.. Then on the day of the Hearing before Appellant appeared at the Hearing via Telephone, Judge Shelton says to Att.Soileau, " we just have to... I need you to be sure and get your letters together showing when you sent him everything".. This was Recorded by the Court Reporter and appears on page 4, lines 4-10,, where then Att.Soileau replies," I got it, Judge".. Appellant is not put on the Phone until line-16..
This is not only an Official Mistake, it is an Ex Parte Communication between the Judge and only One party, Att.Soileau.. It is also Judicial Misconduct and Civil Conspiracy where the Two conspired against Appellant..
At the end af that Hearing the Record continues to state on page 34, lines 1-11,
the Court: Nunc Pro Tunc...and that...and that on...and according... and on August 17,2011 is apparently the first time that you laid eyes an the...on the...the Nunc Pro Tunc, is that the one that you actually saw?
Mr. Pelloat: No. I saw all of thern at one time.
the Court: Okay. And that was on August 17 ? Mr. Pelloat: Yes sir...
(40) The conversation ended with the Judge and Appellant agreeing that on August 17,2011 Appellant First saw the NUNC PRO TUNCs...
It is obvious to Appellant that after He got off the Phone Judge Shelton and Att.Soileau had a further Ex Parte Conversation because Judge Shelton sent His reply to the 9th Court of Appeals that same day stating that Appellant knew something was Signed an July 11,2011 .. Appellant states that He DID NOT know what was Signed thereat because Att.Soileau NEVER sent Him a copy of said NUNC PRO TUNCs as required bY Rule 21a of the Tex.R.Civ.Proc.,. Moreso, according to Rule 124 of the Tex.R.Civ.Proc., there can be NO JUDGMENT without proper Service.. The activity between Judge Shelton before, during, and after this Hearing should Disrobe and Disbar each individual —
It was an Official Mistake and Abuse of Discretion to arbitrarily Deny Appellant's Motion for a BILL OF REVIEW.. No reason for Denial was given.. In a Motion for a BILL DF REVIEW, Appellant need only to prove a Prima Facie Case to send the Motion to a Trial, as Appellant has done herein,, Caldwell, supra..; State v. 1985 Chev. Pick-up Truck, supra.,,; Beck v. Beck, 771 S.W.2d @ 162 (Tx.1989)..; Dean v. Kirk, 508 S.W.2d 70 (Tx.1974)
(41 ) PDINTS OF ERROR AND ARGUMENTS
VOID JUDGMENTS
Appellant argues that the signing of the Final Decree of Divorce and ALL subsequent NUNC PRD TUNCs are in fact VOID..
Rule 316, Tex.R.Civ.Proc.,- Thereafter the Execution SHALL conform to the Judgment as Amended..
When the NUNC PRD TUNC Final Decree of Divorce was signed on July, 11,2011, the Amended version REPLACED the Entire Final Decree of Divorce.. Thenafter, each subsequent NUNC PRD TUNC completely REPLACED the previous..
Rule 124, Tex.R.Civ.Proc., states that in NO case shall Judgment be rendered against ANY Defendant UNLESS upon Service as prescribed in these Rules, ijRule 21 & 21a, Tx.R.Civ.Proc.) With NO Certificate of Service attached to any of the NUNC PRO TUNCs, and Att.Soileau's Letter dated August 17,2011 confirming that prior Notice of Service HAD NOT been given, and with the New Orders voiding the Old Ones, the Final Decree of Divorce and its' NUNC PRG TUNCs are ALL Void, and Appellant is suffering under a Void Judgment,, Middleton v. Murff, 689 S.W.2d 212 (Tx.19B5)..; Dean, supra..; In re E.R., 385 S.W.3d 552 (Tx.2012)..; Walling v. Metcalfe, B63 S.W.2d -- (Tx.1993)..; Browning v. Prostok, 163 S.W.3d 336 (TX.20D5)...
(42) POINTS OF ERROR AND ARGUMENTS
ISSUE FIVE
DUE PROCESS VIOLATIONS
Appellant argues that His Rights under the Consttutional
Due Process Clause of the 14th Amendment to the United STates Const,
were Violated..
Due Process is violated when a Defendant Does NOT receive
actual or constructive Notice of a Judgment put before the Court or in a Hearing of Motions.. Due Process Violation is established if the Defendant proves He was NOT Served or Did Not receive Notice,, Mabon, Ltd., supra..; Caldwell II, supra...; Cash v. Beaumont Dealers
Auto Auct.,Inc., 275 S.W.3d 91B. . .
Judgment is Void for lack of proper Service which DENIES party of Due Process.. There was NO Certificate of Service on ANY of the NUNC
PRD TUNCs filed by Att.Soileau, and there was NO advance Notice given to
Appellant regarding the Phone-Hearings held an Nov.8,2011,, Nov .28,2011,, April 20.2012,,and July 20,2015.. Yet, there WAS advance Notice given ta Appellees' Attorney, Tray 5oileau,., In re Marriage of Ham, 59 S.W.3d 326,; In re North Amer.Refrac.Div.Co., supra..;CCGECPW u R of M, supra..; Brauseau, supra...
If a Defendant was NOT Served in Original Proceeding, Constitutional Due Process releases Him of Showing far Cause 1, 2 & 3 of the BILL OF REVIEW Statute. ,, Caldwell, supra @ 536
(43) RELIEF REQUESTED
Appellant Respectfully Requests The Following Relief From BILL DF REVIEW :
(1) that Appellants' Retirement Annuity being Awarded to Appellee be determined by the Taggart formula or by Shanks, which actually is now a more accepted Division of Property, as Taggart has been Red-Flagged as too lenient.. This was mentioned in a offer to Appellee to Settle this case once and for all..;
(2) that Appellees' share of the Community Property Interest involving Appellants' Retirement Benefits be designated as 50% NOT 75%, which is still unjustified by Judge Shelton.. If 5hanks is used, it eliminates the Judge's 75% Decision and the 50% of Taggart, and the mis-calculation within the QDRO..;
(3) that the House at 212 south 15th St., Nederland, Texas be declared Appellants' Separate Property due to the Inception of Title, and be returned to Appellant and His Family as originally Promised by then Mrs. Pellaat-McKay..;
(4) that ALL Injunctions against Appellant be Dismissed..;
(5) that Appellant be Reimbursed for ALL Fees paid to the Court for this Case as listed in the various Courts' Dockets and Bill of Costs
either adjudicated to Judge Shelton, Att.Tray Soileau, Appellee Katherine Pelloat-McKay-Balenbaucher, and Att.Melody Petitt... The Hearing Far The BILL DF REVIEW should determined if Mrs .Balenbauchers' 5th and newest Attorney will be Liable...
(44) PRAYER
Appellant Prays that this Honorable Court see pass Hiss crime and incarceration and acknowledge the Abuse and Harm that has been inflicted apond Appellant by the Court, by Appellee and by a Team of different Attorneys throughout the proceedings of this Case, and GRANT Appellant the Requested Relief and Finally give Appellant Justice.. Justice is really all Appellant is seeking and not trying to Deprive Appellee of any Property that is rightly Hers ..
SO MOVED AND PRAYED FOR ON THIS "5^ DAY OF k-g&g'M^g^ ,2017..
Respectfully Submitted,
James A. Pelloat, Appellant T.D.C.J.#1289716 C.T.Terrell Unit 1300 F M 655 Rosharon, Tex.77583 (Appellant pro-se)
DECLARATION
I, James Allen Pelloat, am the Appellant herein and being presently incarcerated within T.D ,C.J.-I.D. at the C.T.Terrell Unit in Rosharon, Texas, Delare under Penalty of Perjury that according to my belief, the
Facts Stated in this Appellant's Brief are True and Correct..
nv SIGNED THIS %_ day of k&C5W%0L, 201 7. . James Allen Pelloat Appellant pro-se
(45) CERTIFICATE DF SERVICE
THIS IS TO CERTIFY THAT A TRUE CDPY OF THIS APPELLANTS BRIEF HAS BEEN DEPOSITED IN THE MAIL-BOX AND MAILED BY CERTIFIED MAIL
TO THE BELDW LISTED PARTIE5 ON THIS THE f DAY OF b&CGto&SK,2017. ..
Sincerely,
"Oames A. Pelloat- Appellant
1) CA^AfWsffolU^ Court clerk ^^H Court of Appeals
2) Lawyer For Appellee S&fLftMb Lapray 1240 Orleans
Beaumcnt, Texas 77701
3) Jamie Smith, District Clerk Jefferson County District Clerk 279th District Court
1D01 Pearl St., Suite 203 Beaumont, Texas 77701
4) File,jap
(46)
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Cite This Page — Counsel Stack
James Allen Pelloat v. Katherine McKay Bolenbaucher, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-allen-pelloat-v-katherine-mckay-bolenbaucher-texapp-2017.