Joyce Ann Sarro v. Michael A. Sarro

Opinion

2 1998-CI-03821 FILED IN 4th COURT OF APPEALS

SAN ANTONIO, TEXAS

3 SARRO * IN THE JUDICIAL DISTRICT 8/4/2015 1:05:25 PM

4 V. * 73RD DISTRICT COURT KEITH E. HOTTLE

Clerk

5 SARRO * BEXAR COUNTY, TEXAS 6

7

8 9

10 _________________________________________________________

11 REPORTER'S RECORD 12 HONORABLE BARBARA NELLERMOE BY TELEPHONE

13 JUNE 11, 2015 14 _________________________________________________________

15

16 17

18

19 20 On the 11th day of June, 2015, the

21 above-entitled cause came on to be heard before the

22 Honorable Barbara Nellermoe by telephone in the 57th 23 District Court of Bexar County, Texas, whereupon the

24 following proceedings were taken by machine shorthand.

2

1 A P P E A R A N C E S

2 ATTORNEY FOR PETITIONER Mr. John Mead 3 310 S. Saint Mary's Street, Suite 1470 San Antonio, TX 78205 4 210.222.0981

5 ATTORNEY FOR RESPONDENT Ms. Rachel Sadovsky 6 10101 Reunion Place, Suite 250 San Antonio, TX 78216 7 210.812.3400

3

1 P-R-O-C-E-E-D-I-N-G-S 2 THE COURT: This is cause number

3 1998-CI-03821, styled in the matter of the marriage of 4 Michael A. Sarro and Ann Sarro and in the interest of

5 Michael Andrew Sarro, a minor child. Did that come 6 through?

7 COURT REPORTER: Yes, ma'am.

8 THE COURT: Okay. Then I would like to 9 have counsel to make their announcements for the record.

10 MR. MEAD: Yes, Your Honor, John Mead

11 appearing for Robert Willmann, who's the movant in the 12 motion for new trial that's being heard today.

13 MS. SADOVSKY: And Rachel Sadovsky 14 representing Michael Sarro.

15 THE COURT: Okay. Then let's go ahead

16 with the motion for new trial, and after that I will 17 hear the response. By the way, I want to thank you all

18 for e-mailing to me these pleadings, and I have reviewed

19 all of them this morning, so we can now proceed. Okay. 20 Mr. Mead, you may proceed.

21 MR. MEAD: Yes, Your Honor. First I'd

22 like to ask Your Honor, is one of the pleadings you 23 received the reply by Joyce Sarro to the response to

24 motion for new trial? 25 THE COURT: Yes, I did.

4

1 MR. MEAD: Okay, good. First I'd like to 2 begin, Your Honor, by asking the court to make the

3 motion for new trial and the affidavits and other 4 evidence attached to it part of the record in this case.

5 THE COURT: Is there any objection to 6 that?

7 MR. MEAD: Pardon me?

8 THE COURT: I'm asking if there's any 9 objection.

10 MS. SADOVSKY: Um, there's no objection,

11 Your Honor. 12 THE COURT: Then that is granted, and

13 they are admitted as exhibits to this record. 14 (No documents were tendered

15 (to the court reporter.

16 MR. MEAD: Your Honor, I'm appearing 17 today at the request of Robert Willmann, who is the

18 person that's handling the post judgment matters in this

19 case. He has a problem with his mother being very ill, 20 and he could not leave her, so that's the reason I'm

21 here. I have reviewed the documents that you have, Your

22 Honor. I reviewed the motion for new trial prepared 23 by -- and filed by Mr. Willmann. I've reviewed the

24 response prepared and filed by Ms. Sadovsky, and I've 25 reviewed the response to Ms. Sadovsky's response

5

1 prepared and filed by Mr. Willmann. I think those 2 documents more or less speak for themselves. There are

3 a couple points I would like to make, and the rest of 4 the points, I believe, are made already by the documents

5 that you have before you. 6 This motion for new trial is based

7 substantially and completely, for all practical

8 purposes, on the lack of a record. Little history on 9 the case. You probably don't remember, but you were

10 involved way back when, and this is a case that was

11 heard. Final hearing was in 2004. During -- throughout 12 that time, both my client and Ms. Sadovsky's client were

13 represented by counsel. For several years after that 14 2004 hearing, I urged Mr. Sarro's counsel to conclude

15 the matter, which never took place. After a few years,

16 I just finally kind of gave up on that. My client had 17 refused to allow me to approve the decree, and I told

18 him, look, guys, you need to just set it for a motion to

19 sign, get it done. That never happened. 20 When Ms. Sadovsky got in this case, we

21 were involved in a modification, because there's an

22 adult disabled child, and you have those documents 23 before you, too, I believe, in her response, which we

24 settled some time back. At that point I told 25 Ms. Sadovsky that the problems that I'd been having

6

1 trying to get Mr. Sarro's attorneys to get this thing 2 done, and she took it upon herself to push the thing

3 forward, and we finally got it done. I don't remember 4 the date off the top of my head. Some time --

5 MS. SADOVSKY: It was in 2015. 6 MR. MEAD: Yeah, it was earlier this

7 year.

8 MS. SADOVSKY: April, 2015. 9 MR. MEAD: April.

10 MS. SADOVSKY: I'll tell you in a second.

11 THE COURT: April 1st. 12 MS. SADOVSKY: April 1st, yes. Which

13 you, in fact, signed. 14 MR. MEAD: We finally -- we finally got

15 that done, and my client requested that I refer to

16 someone who might handle an appeal for her, which she 17 did. Which I did, and she hired Mr. Willmann to

18 represent her on this case. Although my name's included

19 in the proceedings, he's the person who's actually doing 20 the work, except for today. The motion for new trial

21 was timely filed, or we wouldn't be here today. The

22 hearing is timely, or we wouldn't be here today. 23 And the issue -- one of the major issues

24 raised by Ms. Sadovsky was the issue with regard to, I 25 believe, addressing the timely request of a record. The

7

1 problem we have is there is no record, and Mr. Willmann 2 requested a record and discovered that it was not

3 available, and that is the basis for his motion, as I'm 4 sure you've read, and that's -- all the arguments that

5 support that are in the motion. 6 I won't waste time by arguing points that

7 you can read just as well as you can hear me talk about

8 'em. And, with that, I will turn the floor over to 9 Ms. Sadovsky.

10 MS. SADOVSKY: Well, good morning, Your

11 Honor. 12 MR. MEAD: We are on the floor, by the

13 way. 14 MS. SADOVSKY: Yeah, we're standing by

15 the phone to make sure you can hear us. Well, first of

16 all, you said you did read my response, so I agree with 17 Mr. Mead. I'm not trying to belabor the points.

18 However, my client strongly objects to this. As you can

19 see, there's a long procedural history. This is the 20 second time that she's filed a motion for new trial to

21 address the property issue. In 2004 you have the final

22 hearing. You confirmed all of the points and all of the 23 property disputes.

24 We are not saying that this was not 25 timely filed. My argument for latches is focused on the

8

1 fact that there was no record, and it's very clear at 2 the time she didn't like the court's ruling, and she

3 could have gotten a record. And I see this as a 4 backdoor way to -- because without a record, they're not

5 going to be able to be successful with an appeal. To 6 try, with no good grounds, to move forward with a new

7 trial, simply because there's no record, which was

8 within their control. It's not surprising she's 9 disputing this. She disputed it before. So it's

10 completely foreseeable that they would need a record,

11 and I find her lack of getting a record -- she was 12 waiting for my client, nearly 11 years later, to

13 finalize this, to then jump onboard to try and get more 14 of the pension.

15 As you understand, I'm sure, you know, a

16 divorce is not severable, so this would then reopen the 17 divorce, would absolutely create unfairness to my

18 client. In the reply brief Mr. Mead -- actually, I'm

19 not sure who wrote this. 20 MR. MEAD: Mr. Willmann.

21 MS. SADOVSKY: It was Mr. Willmann who

22 wrote the reply brief. He quotes to 320 -- trial rules 23 of civil procedure 320. The first step is you must --

24 it must appear to the court that a new trial should be 25 granted. That's the first step, Your Honor. The second

9

1 is it is clearly severable, the issue, without 2 unfairness to the parties. My client thought he got

3 divorced in 1998. Then he found out it wasn't 4 completed, had to wait a long time. They had another

5 hearing in 2004 finalizing it. 6 She's arguing over those six years. If

7 this gets opened, she could then say the party has not

8 been -- they have not divorced, because it reopens, and 9 what ends up happening is my client, then, is possibly

10 open to having the rest of his pension split and given

11 more to her. It's completely unfair. To me, Ms. Sarro 12 was well aware of what the process was, and she was

13 sitting back waiting for my client to do this. 14 My client is older. He's looking to

15 retire. In fact, the affidavit I attached was a year

16 ago when we thought he was going to be able to retire. 17 He's not been able to retire because of all this. And

18 the fact that there's an adult disabled child, that's

19 new information, and even if you look at the order, it 20 states it's not a permanent disability, so that's going

21 to be reviewed at some point.

22 Your Honor, I just -- I strongly object. 23 And I think, as I pointed out in my response, there's

24 very good reason and basis in law. The other one point 25 I wanted to make is in Voltrain versus Voltrain

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1 (phonetic), it states the court cannot grant a partial 2 new trial on certain property issues. It must grant a

3 new trial on all issues since they may not be severed. 4 So the request of just addressing the pension would not

5 be valid anyway. It would have to open all of the 6 property issues.

7 I believe that is all my points at this

8 moment, Your Honor. 9 THE COURT: Thank you.

10 MS. SADOVSKY: Uh-huh.

11 THE COURT: Is there a reply, Mr. Mead? 12 MR. MEAD: Just briefly, Your Honor. As

13 I said, we -- I tried for years to get this case 14 concluded. If that happened when I was requesting

15 Mr. Sarro's counsel to do that, we would not be here

16 talking about this. There would be a record. The only 17 thing -- the only -- the only way that my client's going

18 to have the right or the opportunity to appeal the

19 ruling of the court is if the court grants a new trial, 20 because there is no record from the -- from the 2004

21 trial. So she's going to be denied her right to appeal

22 the ruling based upon the fact there's no record, and 23 that's the basis and the rule upon which Mr. Willmann

24 relies in his motion for new trial that's here before 25 the court today.

11

1 THE COURT: Well, what a tortured, 2 tortured procedural case.

3 MS. SADOVSKY: Accurate. That would be 4 accurate.

5 MR. MEAD: I will not disagree with that, 6 Your Honor.

7 THE COURT: First of all, let me just say

8 as an aside that my sympathy goes with Mr. Willmann in 9 his absence. I totally understand it. He has been

10 caring for his mother for many years when she has

11 been -- she's fragile, and I know he's been very 12 devoted -- very devoted son to her, and so I certainly

13 understand why he's not here arguing, although he was 14 preparing the post judgment matters for his client.

15 On the issue of lack of record, I just

16 think at this point -- I know there are cases that grant 17 new trials or appellate cases that grant reversals and

18 new trials, but generally in a situation where there's a

19 default judgment, there isn't an attorney on one side or 20 something like that, and in this case the difficulties

21 in reaching conclusions have been hard on everybody, the

22 parties certainly, but also with the lawyers getting 23 this done.

24 I don't think at this point I find that 25 as a plausible ground for new trial. It could have been

12

1 requested in a timely fashion back in 2004 or 2005, so I 2 agree with the response that it was foreseeable and it

3 could have been requested a while ago. I also don't 4 believe I can grant a new trial just on the property

5 issues only. I agree with the law on that, and for 6 those reasons I will deny the motion for new trial.

7 MR. MEAD: Thank you very much.

8 MS. SADOVSKY: Thank you. 9 THE COURT: Yes. I certainly know that

10 these parties have certainly been through the ringer in

11 trying to finalize all of this, but at this point I 12 think it's going to have to be the appellate court that

13 tells you one way or the other beyond what I said. 14 MS. SADOVSKY: And, Your Honor, how would

15 you like us to handle the order, then, denying --

16 THE COURT: Would it be possible to have 17 a simple, one-sentence order and have the presiding

18 judge sign off on it with both of you saying approved as

19 to form only? 20 MS. SADOVSKY: Absolutely.

21 MR. MEAD: That will be fine, Your Honor.

22 MS. SADOVSKY: I'll be happy to do that. 23 THE COURT: Okay. Then you can get that

24 done immediately. 25 MR. MEAD: Okay. Again, apologize for

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1 bothering you when you're on vacation. 2 THE COURT: No. I didn't mind at all,

3 and I wish you all the best on your summers. 4 MS. SADOVSKY: Thank you very much.

5 MR. MEAD: Thank you. 6 THE COURT: You're welcome.

7 (Proceedings adjourned.)

14

1 STATE OF TEXAS 2 COUNTY OF BEXAR

3 4 I, Kayleen Rivera, Certified Court Reporter in

5 and for Bexar County, State of Texas, do hereby 6 certify that the above and foregoing contains a true

7 and correct transcription of the proceedings

8 requested in the above-styled and numbered cause, all 9 of which were reported by me.

10

11 I further certify that the total cost for the 12 preparation of this Reporter's Record was paid by

13 Mr. Robert Willmann. 14 To which I certify on this the 3rd day

15 of August, 2015.

16 17

18 /s/ Kayleen Rivera Kayleen Rivera, CSR 5364

19 Auxiliary Official Court Reporter Criminal District Court Administration 20 101 W. Nueva, Suite 301 San Antonio, Texas 78205

21 Telephone: 210.335.2081 Exp: 12-31-2016