Paul D. Simmons v. Teresa A. Simmons

Opinion

ACCEPTED 03-15-00008-CV 6111882 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/17/2015 11:06:21 AM JEFFREY D. KYLE CLERK No. 03-15-00008-CV

FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS FOR THE THIRD DISTRICT OF TEXAS 7/20/2015 8:17:21 AM JEFFREY D. KYLE Clerk

PAUL D. SIMMONS, Appellant

V.

TERESA A. SIMMONS, Appellee

ON APPEAL FROM THE 119TH JUDICIAL DISTRICT COURT OF OF TOM GREEN COUNTY, TEXAS CAUSE NO. B-13-0232-F

BRIEF OF APPELLANT

Melvin Gray State Bar Number 08328000 Gray & Brigman, PLLC 206 W. College Ave. San Angelo, Texas 76903 Tel: (325) 653-4594 Fax: (325) 657-0039 Email: sgreen@grayandbrigman.com

Attorney on Appeal for Appellant

ORAL ARGUMENT REQUESTED No. 03-15-00008-CV

IN THE COURT OF APPEALS FOR THE THIRD DISTRICT OF TEXAS

ON APPEAL FROM THE 119TH JUDICIAL DISTRICT COURT OF OF TOM GREEN COUNTY, TEXAS CAUSE NO. B-13-0232-F

TO THE HONORABLE COURT OF APPEALS:

Appellant Paul D. Simmons respectfully files this Brief.

ii Identity of Parties and Counsel

The following is a complete list of all parties, as well as the names and

addresses, and emails (if known) of all counsel.

Petitioner/Appellee: Teresa A. Simmons

Respondent/Appellant: Paul D. Simmons

Counsel for Petitioner/Appellee at Trial and on Appeal: Kirk Hawkins Attorney at Law 224 West Beauregard Ste. 303 San Angelo, Texas 76903

Counsel for Respondent/ Appellant at Trial and on Appeal: Melvin Gray Gray & Brigman, PLLC 206 W. College Ave. San Angelo, Texas 76903 sgreen@grayandbrigman.com

Trial Court: The Honorable Ben Woodward 119th Judicial District Court Tom Green County, Texas

iii Record References

The Clerk’s Record includes all of the relevant pleadings and orders filed with

the trial court and clerk. The Clerk’s Record contains one volume. References in this

Brief to the Clerk’s Record are by volume and page number, indicated as “CR 1:__.”

The Reporter’s Record includes the transcript of the bench trial held on July

22, 2014. The Reporter’s Record contains three volumes. References to the

Reporter’s Record are by volume and page number, indicated as “RR __:__.”

The Reporter’s Record also includes all of the parties’ exhibits submitted to the

trial court and admitted into evidence during the bench trial. Copies of all such

exhibits are included in Volume 3 of the Reporter’s Record; therefore, references to

the parties’ exhibits are indicated as “RR 3:PX#__” or “RR 3:RX#__.”

References to the trial court’s Findings of Fact are indicated as “FF#__.”

References to the trial court’s Conclusions of Law are indicated as “CL#__.”

Party References

Paul D. Simmons, Appellant, shall be referred to as “Paul.” Teresa A.

Simmons, Appellee, shall be referred to as “Teresa.”

Request for Oral Argument

Pursuant to TEX. R. APP. P. 39, Simmons hereby requests oral argument.

iv Table of Contents

Identity of the Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Record References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Party References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Request for Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Issue No. 1: Teresa’s enforcement action was subject to the applicable statute of limitations. Paul properly raised this defense in his pleadings and during the bench trial. Did the trial court abuse its discretion by enforcing the parties’ 1987 divorce decree and awarding Teresa $51,635.60 when her enforcement action was barred by this affirmative defense?

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

M The Parties’ Marital History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 M The Parties’ Settlement Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . 1 M The Division of Paul’s Retirement Benefits . . . . . . . . . . . . . . . . . . . . 4 M Conoco’s Payment of Paul’s Retirement Benefits . . . . . . . . . . . . . . . 5 M Teresa’s Enforcement Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Standards of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

v M Findings of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

! Legal Sufficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 ! Factual Sufficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

M Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 M (Disputed) Trial Court’s Findings of Fact and Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

! (Disputed) Findings of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . 12 ! (Disputed) Conclusions of Law . . . . . . . . . . . . . . . . . . . . . . . 13

M Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Argument and Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Issues No. 1 Re-Stated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

M Two-Year Statute of Limitations: TEX. FAM. CODE § 9.003(b) . . . . . . . . . . . . . . . . . . . . . 15 M Discovery Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

! Inherently Undiscoverable . . . . . . . . . . . . . . . . . . . . . . 17 ! Pleading Requirement . . . . . . . . . . . . . . . . . . . . . . . . . 18 ! Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 ! Reasonable Diligence . . . . . . . . . . . . . . . . . . . . . . . . . . 19

M Accrual of Teresa’s Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 M Inapplicability of Discovery Rule . . . . . . . . . . . . . . . . . . . . . 20

! Waiver of Discovery Rule . . . . . . . . . . . . . . . . . . . . . . 20 ! No Inherently Undiscoverable Injury . . . . . . . . . . . . . 22

• No Reasonable Diligence . . . . . . . . . . . . . . . . . 23 • Teresa’s Specialized Knowledge . . . . . . . . . . . . 27

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

vi Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

1. Judgement dated September 15, 2014.

2. Findings of Fact and Conclusions of Law dated October 22, 2014.

3. Decree of Dissolution of Marriage and Child Custody, Support and Property Settlement Agreement file-stamped June 1, 1987

vii Index of Authorities

Cases

Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) . . . . . . . . . . . . . . 9

Austin Indep. Sch. Dist. v. Lofters, No. 03-14-00071-CV; 2015 TEX. APP. LEXIS 3115 (Tex. App.–Austin, Apr. 1, 2015, pet. filed) (mem. op.). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17

BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) . . . . . 12

Bates v. Tesar, 81 S.W.3d 441 (Tex. App.–El Paso 2002, no pet.) . . . . . . . . . . . 11

Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 13

City of Austin v. Whittington, 384 S.W.3d 766 (Tex. 2012) . . . . . . . . . . . . . . . . 11

Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671 (Tex. 2006) . . . . . . . . 15

Conoco, Inc. v. Amarillo Nat’l Bank, 14 S.W.3d 325 (Tex. App.–Amarillo 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L.Ed.2d 721 (1986) . . . 14

HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) . . . . . . . . . . . . . . . 19

Heritage Resources, Inc. v. Hill, 104 S.W.3d 612 (Tex. App.–El Paso 2003, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-12

Hitzelberger v. Samedon Oil Corp., 948 S.W.2d 497 (Tex. App.-Waco 1997, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

viii In re Am. Nat’l Cnty Mut. Ins. Co., 384 S.W.3d 429 (Tex. App.–Austin 2012, original proceeding) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

In the Estate of Melchior, 365 S.W.3d 794 (Tex. App.–San Antonio 2012, pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

In the Interest of M.W., 959 S.W.2d 661 (Tex. App.–Tyler 1997, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Leibman v. Grand, 981 S.W.2d 426 (Tex. App.-El Paso 1998, no pet.) . . . . 10-11

Mayorga v. Mayorga, No. 03-13-00787-CV; 2015 TEX. APP. LEXIS 4713 (Tex. App.–Austin, May 8, 2014, no pet.) (mem. op.) . . . . . . . . . . . . . . . . 13

Murray v. Murray, 276 S.W.3d 128 (Tex. App.–Fort Worth 2008, pet. dism’d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Ortiz v. Jones, 917 S.W.2d 770 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Pitman v. Lightfoot, 937 S.W.2d 496 (Tex. App.–San Antonio 1992, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19-20

Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex. 1989) . . . . . . . . . . . . 10

Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277 (Tex. 1987) . . . . . . . . . 10

Proctor v. White, 172 S.W.3d 649 (Tex. App.–Eastland 2005, no pet.) . . . . . . . 18

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) . . . . 16

Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46 (Tex. 2003) . . . . . . . . . . . . . 9

Texas Health Presbyterian Hosp. Dallas v. Burch, No. 05-14-00665-CV, 2015 TEX. APP. LEXIS 625 (Tex., Jan. 22, 2015) . . . . . . . . . . . . . . . . . . . . 17

Tipton v. Brock, 431 S.W.3d 673 (Tex. App.–El Paso 2014, pet. denied) . . . . . 19

ix Treuil v. Treuil, 311 S.W.3d 114 (Tex. App.–Beaumont 2010, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18,19-20,23

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328 (Tex. 1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999) . . . 10

Urbanczyk v. Urbanczyk, No. 07-07-0077-CV; 2009 TEX. APP. LEXIS 587 (Tex. App.–Amarillo, Jan. 29, 2009, no pet.) (mem. op.) . . . . . . . . . . . . . 24

Wagner & Brown, Ltd v. Horwood, 58 S.W.3d 732 (Tex. 2001) . . . . 16-17,19,27

Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190 (Tex. App.–Austin 1992, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-10

Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988) . . . . . . . . 18-21

Statutes

TEX. FAM. CODE ANN. § 9.003(b) (LEXIS 2015) . . . . . . . . . . . . . . . . . . . . . . . . . 15

Rules

TEX. R. APP. P. 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

x Statement of the Case

Nature of the Case: This family law suit arose out of an enforcement action filed by Teresa seeking to enforce the parties’ property division from a 1987 divorce. (CR 1:7-22,35-37).

Course of Proceedings: On or about March 28, 2013, Teresa registered the parties’ 1987 New Mexico divorce decree in Texas. (CR 1:7-22). On April 4, 2013, Teresa provided notice to Paul of the registration of a foreign decree. (CR 1:23-24). On or about April 22, 2013, Paul filed a response in which he contested such registration, asserted various affirmative defenses, and requested a hearing. (CR 1:25-26). On or about April 3, 2014, Teresa filed a Motion for Enforcement of Order seeking to enforce a specific provision of the parties’ divorce decree pertaining to the division of Paul’s retirement pension. (CR 1:35-37).

A bench trial was held on July 22, 2014. (RR 1: 1). At the conclusion of the bench trial, the trial court took the matter under consideration. (RR 2:30). On or about August 20, 2014, the trial court issued a letter ruling, and on September 15, 2014, the trial court entered a written judgment denying all of Paul’s affirmative defenses, granting Teresa’s request to enforce the specific property provision pertaining to Paul’s retirement benefits, and awarding Teresa a total money judgment of $51,635.60. (CR 1:41,44-45) (Appendix 1).

On or about October 3, 2014, Paul timely requested that the trial court enter findings of fact and conclusions of law. (CR 1:51-52). On or about October 22, 2014, the trial court entered its written findings and conclusions. (CR 1:52-53) (Appendix 2). On or about December 12, 2014, Paul timely filed his Notice of Appeal. (CR 1:57-58).

xi Trial Court: The Honorable Ben Woodward, 119th Judicial District Court, Tom Green County, Texas.

Trial Court Disposition: Judgment dated September 15, 2014. (CR 1:44-45) (Appendix 1). The trial court’s judgment awarded Teresa $48,757.60 in actual damages, $278.00 in court costs, and $2,600.00 in attorney’s fees. (Id.).

Parties: Petitioner/Appellee: Teresa A. Simmons Respondent/Appellant: Paul D. Simmons

xii Issue Presented

Issue No. 1: Teresa’s enforcement action was subject to the applicable statute of limitations. Paul properly raised this defense in his pleadings and during the bench trial. Did the trial court abuse its discretion by enforcing the parties’ 1987 divorce decree and awarding Teresa $51,635.60 when her enforcement action was barred by this affirmative defense?

xiii Statement of Facts

M The Parties’ Marital History.

Paul and Teresa were married on August 22, 1969. (RR 2:16). They were both

nineteen years old when they got married. (RR 3:PX#5). During the course of their

marriage, they had two children–a son and a daughter. (RR 2:18; 3:PX#5). After

being married for approximately eighteen years, the couple decided to get divorced.

(RR 2:16).

Paul and Teresa’s divorce was final on June 1, 1987, and a written Decree of

Dissolution of Marriage, (the “Divorce Decree”), was entered on that same day in

Eddy County, New Mexico. (CR 1:8-10; RR 2:16; 3:PX#4; FF#1) (Appendices 2-3).

At the time of the parties’ divorce, their son was approximately fourteen or fifteen

years old and their daughter was approximately nine or ten years old. (RR 2:18).

M The Parties’ Settlement Agreement.

Paul and Teresa resolved all issues pertaining to their divorce through the

execution of a Child Custody, Support and Property Settlement Agreement, (the

“Settlement Agreement”). (CR 1:11-21; RR 2:16-17; 3:PX#5) (Appendix 3). The

Settlement Agreement was approved by the New Mexico trial court and properly

incorporated into the Divorce Decree. (CR 1:8-10; RR 3:PX#4) (Appendix 3). Under

the terms of the Settlement Agreement, Paul retained primary custody of the two

1 children during the school year, and Teresa had custody of the children during their

summer vacation. (CR 1:12; RR 2:18; 3:PX#5) (Appendix 3).

As to child support, Paul agreed to pay Teresa $100.00 per month for every

thirty days she had physical custody of the children. (CR 1:13; RR 3:PX#5)

(Appendix 3). The parties also agreed that Teresa would not be required to pay any

child support while she attended law school. (Id.). Additionally, the parties agreed

that the New Mexico trial court would retain jurisdiction to modify the custody or

child support provisions included in the Settlement Agreement once Teresa graduated

from law school. (Id.).

It appears the parties never petitioned the trial court to modify these custody

or child support provisions. Paul testified Teresa never paid him any child support

and that he had provided the total support for the two children. (RR 2:11). In

contrast, Teresa testified that their daughter came to live with her at around the age

of fifteen years. (RR 2:20). She further testified that during the time the child was

living with her, Paul maintained insurance on their daughter but provided no other

financial support for the child during this time period. (Id.). It was undisputed that

by the day of trial, both of the children were over twenty-one years of age. (RR 2:11).

Under the terms of the Settlement Agreement, Paul was also required to pay

$100.00 each month towards Teresa’s credit card purchases for gas and automobile

2 maintenance for a period of eighteen months, that is, until December 31, 1988. (Id.).

Regarding the division of the parties’ property, Teresa testified that the only

property she actually got out of the divorce was a car, her clothing, jewelry, and some

patio furniture. (RR 2:19). Teresa testified that she basically “left” Paul all the

property, including her “grandmother’s dishes.” (Id.). Her trial testimony in this

regard was misleading, if not entirely false.

A careful review of the terms of the Settlement Agreement reveals Teresa was

awarded a substantial amount of the parties’ community property, including but not

limited to, the following: two cars, jewelry, a computer, two beds, two desks, a

stereo, two guns, lamps, a dining table and four chairs, a TV, a microwave, and patio

furniture. (CR 1:14; RR 3:PX#5) (Appendix 3). Additionally, under the terms of the

Settlement Agreement, Teresa was specifically awarded her grandmother’s dishes.

(Id.). Teresa was also awarded $9,000.00 which constituted cash monies advanced

for her school expenses and proceeds from her teacher retirement benefits. (Id.).

Undisputedly, the parties owned a home at the time of their divorce. (RR

1:19). Under the terms of the Settlement Agreement, Teresa was awarded no equity

in this home. (CR 1:14,16; RR 3:PX#5) (Appendix 3). However, it was also

undisputed that under the terms of the Settlement Agreement, Paul became solely

responsible for payment of the $82,200.00 mortgage that was attached to the parties’

3 home, along with approximately $35,000.00 in miscellaneous debt that the parties had

incurred as of the date of their divorce. (CR 1:16-17; RR 3:PX#5). In contrast,

pursuant to the terms of the Settlement Agreement, Teresa did not assume

responsibility for payment of any of the $117,000.00 community property debt that

the parties had accumulated during their eighteen year long marriage. (Id.).

Teresa testified that she left the majority of the furniture in the house because

she did not want “the kids to just feel turned upside-down by everything.” (RR 2:19).

Teresa’s choice not to take possession of the property she was awarded under the

Divorce Decree for the sake of her children is a far cry from her representation that

she “left” Paul basically all the property in the divorce. Rather, the evidence

introduced at trial reveals the final property division in the parties’ 1987 divorce was

more than fair to Teresa.

M The Division of Paul’s Retirement Benefits.

It was also undisputed at trial that under the terms of the Settlement

Agreement, Teresa was awarded a portion of Paul’s retirement benefits. (CR 1:14;

RR 2:17; 3:PX#5; FF#1) (Appendices 2-3). Specifically, this provision of the

Settlement Agreement reads as follows:

(6) Division of Community Property. The parties community property shall be divided as follows:

A. Wife shall have set over to her as her sole and separate property:

4 ...

23. A portion of Husband’s retirement, pension, thrift, profit sharing and other employee benefits acquired through Husband’s employment with Conoco, to be paid if, as, and when received by Husband. Wife’s portion shall be one-half times a fraction (the numerator of which shall be the number of years the parties were married during Husband’s employment with Conoco and the denominator of which shall be the number of years Husband or his employer, or both, contributed to the plan or benefit) times the amount of the benefit received by Husband.

(CR 1:14; RR 3:PX#5; FF#1) (Appendices 2-3). There was no evidence introduced

at trial that a Qualified Domestic Relations Order, (“QDRO”), to this effect was ever

entered by any trial court or that Conoco was ever placed on notice of this particular

provision of the Settlement Agreement.

M Conoco’s Payment of Paul’s Retirement Benefits.

Paul testified he began working for Conoco on February 12, 1979. (RR 1:6;

FF#2) (Appendix 2). Over the next twenty-six years, Paul continued his employment

with Conoco. (RR 1:8). Paul testified that on March 26, 2004, his employment with

Conoco ended. (RR 1:8; FF#2) (Appendix 2).

Paul also testified that on November 1, 2004, he cashed out his retirement

benefits from Conoco. (RR 1:7). A copy of a check dated November 1, 2004, from

Arvest Trust Company, NA, the paying agent for ConocoPhillips Retirement

Benefits, was introduced into evidence at trial and reflected that Paul received

5 $295,500.61 in retirement benefits from Conoco. (RR 2:8; 3:PX#2; FF#3) (Appendix

2).

Paul testified he used the money to pay off a “bunch of bills and debt and

everything else.”1 (RR 2:8). He further testified that as of the day of trial, these cash

monies were “gone” and he did not have them any more. (Id.). It was undisputed at

trial that Paul did not forward Teresa her share of the money he received when he

cashed out his retirement benefits with Conoco. (Id.).

M Teresa’s Enforcement Action.

Approximately twenty-six years after the parties finalized their divorce, and

approximately eight and a half years after Paul cashed in his retirement benefits with

Conoco, Teresa filed a Petition for Enforcement of Order, (“Petition for

Enforcement”), seeking to enforce the Divorce Decree. (CR 1:35-37; FF#10)

(Appendix 2). Paul asserted various affirmative defenses to Teresa’s enforcement

action, including but not limited to, the statute of limitations and laches. (CR 1:25-

26; FF#9) (Appendix 2).

1 The trial court found that Paul had utilized some of the retirement benefits he received on November 1, 2004, to pay off a mortgage on his home in August of 2012. (FF#5). (Appendix 2). However, there was no evidence that Paul actually used these particular retirement benefits for that purpose. Rather, Paul simply testified that he had paid off his home mortgage in 2012 and did not identify the funds he utilized in paying this debt. (RR 2:13). Accordingly, the trial court’s finding of fact in this regard was incorrect.

6 A bench trial was held on July 22, 2014. (RR 1:14). Paul and Teresa were the

only two witnesses at the bench trial. (RR 2:5,15). At the conclusion of the bench

trial, the trial court took the matter under advisement. (RR 2:30).

On August 20, 2014—approximately twenty-seven years after the parties’

divorce was final—the trial court issued a letter ruling denying all of Paul’s

affirmative defenses and awarding Teresa $48,757.60 in actual damages, $2,600.00

in attorney’s fees, and costs of court. (CR 1:41; CL#6) (Appendix 2). On September

15, 2014, the trial court entered a written judgment awarding Teresa a total sum of

$51,635.60, with postjudgment interest accruing at the rate of six percent. (CR 1:44-

45; CL#6) (Appendices 1-2). It is from this judgment that Paul now appeals.

7 Summary of the Argument

Teresa waited approximately twenty-six years to seek enforcement of the

Divorce Decree’s provisions awarding her a portion of Paul’s retirement benefits.

Paul properly asserted that the statue of limitations barred Teresa’s enforcement

action. Teresa’s cause of action accrued on November 1, 2004 and was barred after

November 1, 2006.

Teresa failed to specifically plead the applicability of the discovery rule prior

to trial. She also failed to prove her injury in this case was inherently undiscoverable,

notwithstanding reasonable diligence. The trial court thus erred in concluding the

discovery rule tolled the applicable two-year statute of limitations found in TEX. FAM.

CODE § 9.003(b). Accordingly, the trial court abused its discretion in enforcing the

provision of the Divorce Decree in regards to the division of Paul’s retirement

benefits.

8 Standards of Review

M Findings of Fact.

A trial court’s findings of fact have the same force and dignity as a jury’s

verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). An

appellate court reviews a trial court’s findings of fact under the same legal and factual

sufficiency standard used to support a jury’s verdict. Id. In an appeal from a bench

trial, an attack on the sufficiency of the evidence must be directed at specific findings

of fact, rather than at the judgment as a whole. In the Interest of M.W., 959 S.W.2d

661, 664 (Tex. App.–Tyler 1997, writ denied). “Generally, a finding of fact not

challenged in a point of error on appeal is binding on the appellate court.” Id.

! Legal Sufficiency.

If a party challenges the legal sufficiency on an issue which he did not have the

burden of proof, he must demonstrate on appeal that no evidence supports the adverse

ruling. Westech Eng’g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196

(Tex. App.–Austin 1992, no writ). When findings are challenged for legal

sufficiency, an appellate court should “view the evidence in a light that tends to

support the finding of the disputed fact and disregard all evidence and inferences to

the contrary.” Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).

In other words, an appellate court considers the evidence in the light most favorable

9 to the challenged finding under a legal sufficiency review. Point Lookout West, Inc.

v. Whorton, 742 S.W.2d 277, 279 (Tex. 1987).

A legal sufficiency challenge will be sustained when:

(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or rules of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert.

denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999). “If more than a

scintilla of evidence exists to support the questioned finding, the ‘no evidence’ point

fails.” Leibman v. Grand, 981 S.W.2d 426, 429 (Tex. App.-El Paso 1998, no pet.).

! Factual Sufficiency.

When a party without the burden of proof challenges the factual sufficiency of

the evidence to support an adverse finding, the party must demonstrate that there is

insufficient evidence to support the adverse finding. Westech, 835 S.W.2d at 196.

Under a factual sufficiency review, an appellate considers both the evidence that

supports the finding and the evidence that is contrary to the finding. Plas-Tex., Inc.

v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). “In reviewing a factual

sufficiency point, the court of appeals must weigh all of the evidence in the record.”

10 Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). Such evidence includes “both the

evidence which tends to prove the existence of a vital fact as well as evidence which

tends to disprove its existence.” Leibman, 981 S.W.2d at 429.

The finding should be sustained if there is some probative evidence to support

it and provided it is not against the great weight and preponderance of the evidence.

Id.; Ortiz, 917 S.W.2d at 772. An appellate court should reverse the judgment and

order a new trial if the trial court’s fact finding was so contrary to the overwhelming

weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986). A finding which “shocks the conscience” or that is “manifestly

unjust” will be overturned on appeal. Leibman, 981 S.W.2d at 429.

M Conclusions of Law.

Conclusions are reviewed de novo, and an appellate court is free to draw its

own legal conclusions. City of Austin v. Whittington, 384 S.W.3d 766, 778 (Tex.

2012). The legal conclusions of the trial court are therefore not binding upon an

appellate court. Bates v. Tesar, 81 S.W.3d 441, 422 (Tex. App.–El Paso 2002, no

pet.).

The standard of review for legal conclusions is whether they are correct.

Heritage Resources, Inc. v. Hill, 104 S.W.3d 612, 621 (Tex. App.–El Paso 2003, no

11 pet.). In other words, an appellate court independently evaluates conclusions of law

to determine their correctness when they are attacked as a matter of law. Id.

An appellate court should follow a trial court’s conclusion of law unless it is

erroneous as a matter of law. Hitzelberger v. Samedon Oil Corp., 948 S.W.2d 497,

503 (Tex. App.-Waco 1997, writ denied). If, however, the reviewing court

determines that a conclusion of law is erroneous, but the trial court rendered the

proper judgment, the erroneous conclusion of law does not require reversal. BMC

Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).

M (Disputed) Trial Court’s Findings of Fact and Conclusions of Law.

In the case at bar, Paul timely requested the trial court to enter findings of fact

and conclusions of law. (CR 1:50-51). In response to this request, the trial court

entered written Findings of Fact and Conclusions of Law on October 22, 2014. (CR

1:52-53) (Appendix 2). On appeal, the following factual findings and legal

conclusions are specifically disputed:

! (Disputed) Findings of Fact.

FF#4 Defendant used the retirement distribution to pay bills, including a debt payable to Wells Fargo that was secured by a lien on Defendant’s homestead. (CR 1:52) (Appendix 2.

FF#12 Plaintiff’s share of the retirement account is $48,757.60 based on the formula in the Decree (½

12 times (Feb. 1979 to June 1, 1987 i.e. 8 years 3 months) divided by 25 years with the Company (300 months). (CR 1:53) (Appendix 2).

! (Disputed) Conclusions of Law.

CL#3 The Statute of Limitations began to run after August 2012 (Id.) (Appendix 2).

CL#6 The Court awards Plaintiff a Judgment for $48,757.60, plus $2,600.00 attorney fees, all costs of Court and interest as allowed by law. (Id.) (Appendix 2).

M Abuse of Discretion.

An appellate court reviews a trial court’s decision on a motion for enforcement

for an abuse of discretion. Mayorga v. Mayorga, No. 03-13-00787-CV; 2015 TEX.

APP. LEXIS 4713, *11 (Tex. App.–Austin, May 8, 2014, no pet.) (mem. op.); Murray

v. Murray, 276 S.W.3d 128, 143 (Tex. App.–Fort Worth 2008, pet. dism’d). The trial

court abuses its discretion if it:

(1) it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles; or (2) erroneously exercises its power by making a choice outside the range of choices permitted by law.

Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Mayorga, 2015 TEX. APP.

LEXIS 4713 at *11; Murray, 276 S.W.3d at 143.

The mere fact that a trial judge may decide a matter within his discretionary

authority in a different manner than an appellate judge in a similar circumstance does 13 not demonstrate an abuse of discretion has occurred. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985), cert. denied, 476 U.S. 1159, 106

S. Ct. 2279, 90 L.Ed.2d 721 (1986). Thus, when reviewing matters committed to a

trial court’s discretion, an appellate court may not substitute its own judgment for that

of the trial court. In re Am. Nat’l Cnty Mut. Ins. Co., 384 S.W.3d 429, 432 (Tex.

App.–Austin 2012, original proceeding).

14 Argument and Authorities

Issue No. 1 Re-Stated: Teresa’s enforcement action was subject to the applicable statute of limitations. Paul properly raised this defense in his pleadings and during the bench trial. Did the trial court abuse its discretion by enforcing the parties’ 1987 divorce decree and awarding Teresa $51,635.60 when her enforcement action was barred by this affirmative defense?

M Two-Year Statute of Limitations: TEX. FAM. CODE § 9.003(b).

The trial court held that the two year statute of limitations found in Section

9.003(b) of the TEXAS FAMILY CODE was applicable to the Petition for Enforcement.2

(CR 1:41; CL#1) (Appendix 2). TEX. FAM. CODE § 9.003(b) reads as follows:

§ 9.003. Filing Deadlines

...

(b) A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred.

TEX. FAM. CODE ANN. § 9.003(b) (LEXIS 2015).

2 The Settlement Agreement included a choice of law provision stating that the law of the State of New Mexico governed the enforcement of the terms of the Settlement Agreement. (CR 1:10; RR 3:PX#5) (Appendix 3). However, neither Paul nor Teresa argued to the trial court that this enforcement action should governed by New Mexico law; therefore, the trial court applied Texas law in this case based on the consent of both parties. See Coca-Cola Co. v. Harmar Bottling Co., 218 S.W.3d 671, 695 (Tex. 2006) (explaining that choice of law issues can be waived unless the complaining party objects to the law being applied, requests application of another state’s law, and requests judicial notice of the law of the other state).

15 Generally, when a cause of action accrues is a question of law. Provident Life

& Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). A cause of action

accrues, and the statute of limitations begins to run, when facts come into existence

that authorize a party to seek a judicial remedy. Id. In most cases, a cause of action

accrues when a wrongful act causes a legal injury regardless of when the plaintiff

learns of that injury or if all the resulting damages have yet to occur. Id. However,

an exception may defer accrual of a claim—the discovery rule. Id.

M Discovery Rule.

Statutes of limitations are intended to compel plaintiffs to assert their claims

“within a reasonable period while the evidence is fresh in the minds of the parties and

witnesses.” Wagner & Brown, Ltd v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001).

The public policy behind statutes of limitations is that it “is in society’s best interest

to grant repose by requiring that disputes be settled or barred within a reasonable

time.” Id.

The discovery rule exception operates to defer accrual of a cause of action until

the plaintiff knows or, by exercising reasonable diligence, should know of the facts

giving rise to the claim. Id.; Austin Indep. Sch. Dist. v. Lofters, No. 03-14-00071-

CV; 2015 TEX. APP. LEXIS 3115, *10 (Tex. App.–Austin, Apr. 1, 2015, pet. filed)

(mem. op.).

16 The discovery rule is a “very limited exception to statutes of limitations.”

Horwood, 58 S.W.3d at 734 (quoting Computer Assocs. Int’l v. Altai, Inc., 918

S.W.3d 453, 455 (Tex. 1996)). The rule should be restricted to exceptional cases to

avoid defeating the purposes behind the limitation statutes. Treuil v. Treuil, 311

S.W.3d 114, 118 (Tex. App.–Beaumont 2010, no pet.)(citing S.V. v. R.V., 933

S.W.2d 1, 25 (Tex. 1996)). Thus, the discovery rule is only used when the plaintiff’s

injury is both “inherently undiscoverable” and “objectively verifiable.” Id. at 119;

Lofters, 2015 TEX. APP. LEXIS 3115, *10; Horwood, 58 S.W.3d at 734.

! Inherently Undiscoverable.

“An injury is inherently undiscoverable if it is, by its nature, unlikely to be

discovered within the prescribed limitations period, despite due diligence.”

Horwood, 58 S.W.3d at 734-35. “Inherently undiscoverable” does not mean that a

particular plaintiff did not discover his or her particular injury within the applicable

limitations period. Id. Rather, the determination of whether an injury is “inherently

undiscoverable” is made on a categorical basis. Id.

Accordingly, a court’s focus is on the type of injury, not the particular injury

itself. Id. “Discovery rule cases focus on categorical ‘types of injury, not causes of

action.’” Texas Health Presbyterian Hosp. Dallas v. Burch, No. 05-14-00665-CV,

2015 TEX. APP. LEXIS 625, *7 (Tex., Jan. 22, 2015).

17 ! Pleading Requirement.

The discovery rule is also a plea in confession and avoidance. Woods v.

William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). Consequently, a party

seeking to avail himself of the discovery rule must plead the rule, either in his original

petition or in an amended or supplemental petition in response to a defendant’s

assertion of a statute of limitations defense as a matter of law. Id.

“A matter in avoidance of the statute of limitations that is not raised

affirmatively by the pleadings will, therefore, be deemed waived.” Id. at 518;

Proctor v. White, 172 S.W.3d 649, 652 (Tex. App.–Eastland 2005, no pet.) (same);

also see Treuil, 311 S.W.3d at 114 (ex-wife amended original petition and asserted

discovery rule after ex-husband asserted statute of limitations barred her claim to

portion of his retirement benefits); In the Estate of Melchior, 365 S.W.3d 794, 799

(Tex. App.–San Antonio 2012, pet. denied) (discovery rule held not applicable

because Estate did not specifically plead it).

! Burden of Proof.

Additionally, the party seeking to benefit from the discovery rule also bears the

burden of proving that his injury was both “inherently undiscoverable” and

“objectively verifiable.” Woods, 769 S.W.2d at 518. A party asserting the discovery

rule at trial to avoid a statute of limitations bar must prove all elements of the rule.

18 Tipton v. Brock, 431 S.W.3d 673, 677 (Tex. App.–El Paso 2014, pet. denied); also

see Treuil, 311 S.W.3d at 119 (because ex-wife sought to benefit from discovery rule,

she had burden to prove the nature of her injury–ex-husband’s failure to pay her

under divorce decree–was inherently undiscoverable).

! Reasonable Diligence.

Finally, the discovery rule does not excuse a party from exercising reasonable

diligence in protecting his own interests. Pitman v. Lightfoot, 937 S.W.2d 496, 510

(Tex. App.–San Antonio 1992, writ denied); Conoco, Inc. v. Amarillo Nat’l Bank,

14 S.W.3d 325, 328 (Tex. App.–Amarillo 2000, no pet.) (finding secured parties must

take some responsibility to ascertain status of their collateral and holding discovery

rule inapplicable to toll statute of limitations).

Indeed, parties have an obligation to protect their interests by exercising due

diligence. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 982 (Tex. 1998) (court

held that because mineral owners have some obligation to protect their interests by

exercising reasonable diligence, their injury was not inherently undiscoverable, and

discovery rule did not apply to their claims). Horwood, 58 S.W.3d at 737 (court held

injury was not inherently undiscoverable because royalty owner could discover such

injuries in timely manner by exercising due diligence).

19 Whether reasonable diligence was used is generally a question of fact unless

the evidence is such that reasonable minds could not differ as to its effect. Pitman,

937 S.W.2d at 510. Under these circumstances, the issue of reasonable diligence

become a question of law. Id.

M Accrual of Teresa’s Injury.

In the case at bar, the Settlement Agreement required Paul to remit to Teresa

a portion of his retirement benefits “if, as, and when” they were received by Paul.

(CR 1:4; RR 3:PX#5) (Appendix 3). Teresa’s injury therefore occurred on November

1, 2004, when Paul received his retirement funds from Conoco and when upon his

receipt of same, he failed to immediately remit Teresa’s portion to her. See Treuil,

311 S.W.3d at 118 (ex-wife’s injury occurred on date ex-husband withdrew all funds

from retirement account and upon doing so, then failed to immediately remit ex-

wife’s portion to her). Under the two-year statute of limitations found in TEX. FAM.

CODE § 9.003(b), Teresa’s enforcement action was barred after November 4, 2006,

unless the discovery rule applies in this case.

M Inapplicability of Discovery Rule.

! Waiver of Discovery Rule.

The trial court abused its discretion in denying Paul’s statute of limitations

defense in the case at bar. (CR 1:45-46) (Appendix 1). Paul properly plead this

20 affirmative defense upon being placed on notice that Teresa had registered the

Divorce Decree in Texas. (CR 1:25). Additionally, Paul reasserted this affirmative

defense during the bench trial.3 (RR 2:29).

Because Paul plead properly plead this affirmative defense, Teresa was

required to plead the discovery rule. See Woods, 769 S.W.2d at 517. If Teresa failed

to plead that the discovery rule applied to the case at bar, she waived this exception,

and the trial court could not on its own motion toll the running of the two-year statute

of limitations. See Id. at 518.

A review of the Petition for Enforcement establishes that Teresa did not

specifically plead the application of the discovery rule. (CR 1:35-37). Teresa did

not amend the Petition for Enforcement prior to trial. The only language in the

Petition for Enforcement which might be construed as alluding to the discovery rule

is a single statement found on the second page of the Petition for Enforcement which

reads as follows: “Petitioner became aware of this [Paul’s receipt of Conoco

retirement benefits] in late 2012 or early 2013.” (CR 1:36). Such general statement

does not satisfy the specific pleading requirement in regards to the discovery rule as

set forth by the Texas Supreme Court. See Woods, 769 S.W.2d at 517-18.

3 Paul’s trial attorney actually argued that Teresa’s enforcement action was subject to a four year statute of limitations; therefore her suit was barred as of November 4, 2008. (RR 2:29). As Teresa filed the Petition for Enforcement on April 3, 2014, her action would still have been barred if a four-year statute of limitations is applicable to the case at bar. (CR 1:35-37).

21 If Teresa was going to raise the application of the discovery rule at trial, she

had a duty to specifically plead this exception in her pleadings. As she failed to

specifically plead the applicability of the discovery rule in the Petition for

Enforcement, Teresa waived this exception at trial. As such, the trial court erred in

concluding that the two-year statute of limitations began to run after August 2012 and

also erred in granting Teresa’s request to enforce the Divorce Decree. (CL#3; CL#4)

(Appendix 2). Because the discovery rule did not toll the two-year statute of

limitations in this case as a matter of law, this Court should reverse the trial court’s

judgment and hold Teresa take nothing by her enforcement action against Paul.

If this Court determines Teresa properly pled the applicability of the discovery rule in the Petition for Enforcement, Paul presents the following argument for the Court’s consideration.

! No Inherently Undiscoverable Injury.

The trial court abused its discretion in granting the Petition For Enforcement

because Teresa failed to meet her burden of proof in establishing the applicability of

the discovery rule in the case at bar. Specifically, Teresa failed to prove that her

injury in this case was inherently undiscoverable and therefore justified the tolling of

the two-year statute of limitations until she discovered her injury in August of 2012.

22 To the contrary, if Teresa had simply used reasonable diligence in protecting

her interest in Paul’s retirement benefits, she would have easily discovered his early

retirement from Conoco and his subsequent withdrawal of all his retirement benefits.4

• No Reasonable Diligence.

For example, at the time of the parties’ divorce, or any time over the next

nineteen years, Teresa could have requested that a QDRO be entered by a trial court.

Once the QDRO was in place, Teresa could easily have sent a copy of same to

Conoco. Upon receipt of the QDRO, Conoco would have had a duty to notify Teresa

of Paul’s withdrawal of his retirement benefits. Conoco would also have had a duty

to segregate out her portion of Paul’s retirement benefits prior to making any

disbursements to Paul. However, Teresa introduced no evidence that from June 1,

1987 through November 4, 2006, she made any effort to have a QDRO entered of

record and a copy of same sent to Conoco.

Likewise, Teresa could have simply sent Conoco a certified copy of the

Divorce Decree and Settlement Agreement immediately after the parties’ divorce or

4 There appears to be no Texas case specifically holding that an ex-spouse’s actions regarding his or her retirement accounts, as a category, are inherently undiscoverable. See Trueil, 311 S.W.3d at 119-20 (appellate court side-stepped issue of whether ex-husband’s failure to give ex-wife her portion of his retirement benefits as required under parties’ divorce decree constituted an inherently undiscoverable injury). Such lack of authority is not surprising, however, as retirement accounts are easily discoverable and thus do not constitute the exceptional type of categorical injury to which the discovery rule should apply.

23 anytime over the next nineteen years. If Teresa had placed Conoco on notice that she

had been awarded a portion of Paul’s retirement account in their divorce, Conoco

would have notified her that at Paul’s request, it had disbursed all of his retirement

benefits to him on November 1, 2004. However, Teresa introduced no evidence that

from June 1, 1987 through November 4, 2006, she ever sent Conoco a copy of the

Divorce Decree or the Settlement Agreement.

Teresa could also have simply picked up the telephone, called Conoco directly,

and asked about the status of Paul’s retirement benefits at some point during the

nineteen years after the parties’ divorce was finalized. If a telephone call was

unsuccessful, Teresa could have sent Conoco a written letter inquiring about the

status of Paul’s retirement benefits. However, Teresa introduced no evidence that

from June 1, 1987 through November 4, 2006, she ever attempted to contact Conoco

directly about Paul’s retirement benefits.

A simple inquiry to Conoco itself anytime between November 4, 2004 through

November 4, 2006, would have brought Paul’s withdrawal of his retirement benefits

to light. See Urbanczyk v. Urbanczyk, No. 07-07-0077-CV; 2009 TEX. APP. LEXIS

587, *7 (Tex. App.–Amarillo, Jan. 29, 2009, no pet.) (mem. op.) (court held discovery

rule not applicable because plaintiff’s injury was not inherently undiscoverable; a

simple request to brokerage firm itself should have brought unauthorized transfer to

24 light). All Teresa had to do was contact Conoco and she would have discovered her

injury. She simply chose not to make such contact.

Additionally, Teresa could have asked her children about the status of Paul’s

whereabouts and his current employment. If she had ever asked the children about

their father, she would have learned---at a bare minimum---that Paul had retired from

Conoco and was living in San Angelo, Texas. Yet, Teresa intentionally chose to

never talk to her two children about their father.

Teresa testified that she never discussed Paul with her children because she did

not want her “children to be drug into any kind of stuff like that.” (RR 2:21).

Teresa’s reticence in this regard might be considered laudable while the children were

minors. However, Teresa’s reluctance to speak to her children about Paul became

unreasonable when one considers that by 2004, both children were full-fledged

adults----with their daughter being twenty-six or twenty-seven years old and their son

being thirty-one or thirty-two years old. (RR 2:18). Simply checking with her two

adult children regarding the status of Paul’s employment and his current whereabouts

would not have caused her children any undue consternation.5

5 Paul testified that Teresa should have known where he was living and working through contact with their children. (RR 2:10).

25 To the contrary, if Teresa had simply asked one of her children during 2004

where Paul was working and living, her children would have informed her that he had

retired early from Conoco and was living in San Angelo, Texas. Such information

would have spurred Teresa to make further inquiries about the status of Paul’s

retirement benefits. As a result of these inquiries, Teresa would have learned of

Paul’s early withdrawal of all his retirement benefits.

Finally, Teresa could have always contacted Paul directly during the nineteen

years after the parties’ divorce to determine where he was living and working. Teresa

testified that she had only seen Paul “to talk to him one time” since they were

divorced. (RR 2:24). She further testified that this in-person meeting happened prior

to his retirement from Conoco. (Id.).

It was unnecessary, however, for Teresa to actually meet with Paul in person

to make her diligent inquiries. She could have simply called him on the telephone,

sent him a letter, or sent him an email. Instead, she failed to make any effort

whatsoever to contact Paul about her portion of his retirement benefits from Conoco

for over twenty-five years.

The Record reflects Teresa had several sources from which she could have

timely discovered her injury, including Conoco, her two children, and Paul himself.

As such, Teresa’s injury in this case was not inherently undiscoverable. See

26 Horwood, 58 S.W.3d at 737 (holding that when a party can seek information from

several sources to evaluate the propriety of another’s action, discovery rule does not

apply).

• Teresa’s Specialized Knowledge.

The Record in this case establishes that Teresa failed to use reasonable

diligence to discover Paul’s early withdrawal of his retirement benefits and his failure

to send her a portion of the cash funds he received from Conoco to which she was

entitled under the terms of the Settlement Agreement. Teresa’s lack of reasonable

diligence becomes even more apparent when one considers her educational

background and professional expertise.

Teresa testified that she was licensed as an attorney in the State of Oklahoma

in February of 1990. (RR 2:23). She testified that she was also licensed to practice

law in Texas in November of 1990. (Id.). Over the next twenty years, Teresa

testified she practiced law in both Houston, Texas and Oklahoma City, Oklahoma.

(Id.). At the trial, Teresa testified she was currently retired and living in Florida--

having surrendered her law license in 2010. (RR 2:20,23). She further testified that

she became disabled after a motor scooter accident in October of 2006 and was

27 currently receiving monthly federal disability payments in the amount of $1,400.00.6

(RR 2:20,23-24).

Teresa graduated from law school, passed two bar exams, and practiced law in

both Texas and Oklahoma for approximately twenty years. (RR 2:23). As such, she

not only had the opportunity to use reasonable diligence to timely discover her injury

in this case, she also had the legal knowledge, expertise, and skill to discover Paul’s

actions concerning his Conoco retirement benefits. However, she failed to utilize her

specialized knowledge to protect the property interest in Paul’s retirement benefits

which she was awarded under the Divorce Decree.

Furthermore, Teresa specifically testified she knew that she had been awarded

a portion of Paul’s retirement benefits under the Divorce Decree and that this property

right was to accrue at some point in the future. (RR 2:24-25). Yet, when questioned

at trial as to why she waited approximately twenty-five years to take any action to

enforce this property right, Teresa responded “–what would you have me do?” (RR

2:25).

Texas case law would have Teresa use reasonable diligence to discover her

injury in this case. The discovery rule does not excuse Teresa’s failure to use

6 As to the nature of Teresa’s disability, she testified that she had torn up both her knee and back during the motor scooter accident. (RR 2:23-24). She also testified that she could no longer practice law because she was on “morphine and a lot of drugs” and she believed it would be committing malpractice for her to represent a client. (RR 2:24).

28 reasonable diligence to protect her property interests in Paul’s retirement benefits.

Teresa had several different means and sources available to her which she could have

utilized and timely discovered Paul’s actions in regards to his Conoco retirement

benefits. As a practicing attorney, Teresa also had the specialized knowledge and

legal skills she could have used to timely discover her injury. However, from 1987

until 2012, Teresa intentionally chose not to take any actions at all until she first

learned of Paul’s actions and then contacted an attorney regarding the issue of the

retirement benefits. (RR 2:21).

Teresa’s lack of reasonable diligence prevented her from discovering her injury

in this case. Accordingly, Teresa’s injury was not inherently undiscoverable as

required for the application of the discovery rule. Because the discovery rule is

inapplicable to the case at bar, Teresa’s enforcement action is barred by the two-year

statute of limitations under TEX. FAM. CODE § 9.003(b) as a matter of law.

29 Conclusion

Because Teresa failed to meet her burden of proof to receive the benefit of the

discovery rule, the trial court erred in concluding the two-year statute of limitations

was tolled and only began running as of August, 2012. The trial court also erred in

concluding the Motion for Enforcement was timely filed as of April, 2014. Based on

these erroneous conclusions of law, the trial court abused its discretion in granting

the Petition for Enforcement and in awarding Teresa a money judgment for the total

sum of $51,635.60.

This Court should therefore 1) find the discovery rule is inapplicable to this

case and 2) conclude that Teresa’ enforcement action was barred by the two-year

statute of limitations found in TEX. FAM. CODE § 9.003(b). Based on this finding and

conclusion, the Court should reverse the trial court’s judgment in all respects and

render judgment that Teresa take nothing by her enforcement action against Paul.

30 Prayer

Appellant Paul D. Simmons prays that this Court reverse the trial court’s

Judgment dated September 15, 2014 in all respects and render judgment in his favor.

Alternatively, Appellant Paul D. Simmons prays that this Court reverse the

trial court’s Judgment dated September 15, 2014 in all respects and remand this case

to the trial court for further proceedings in accordance with its ruling.

Appellant Paul D. Simmons also requests the Court to grant him any further

relief to which he may be justly entitled.

Respectfully submitted,

GRAY & BRIGMAN, PLLC 206 West College Ave. San Angelo, Texas 76903 Tel: (325) 653-4594 Fax: (325) 657-0039 Email: sgreen@grayandbrigman.com

By: /s/ Melvin Gray Melvin Gray State Bar No.0832800

Appellate Counsel for Appellant Paul D. Simmons

31 Certificate of Compliance

In accordance with Rules 9.4(e) and (i) of the TEXAS RULES OF APPELLATE PROCEDURE, the undersigned attorney of record certifies that the Brief of Appellant contains 14-point typeface for the body of the brief, 12-point typeface for footnotes in the brief, and contains 7,066 words, excluding those words identified as not being counted in Rule 9.4(i)(1) and was prepared on Word Perfect Version 9.

/s/ Melvin Gray Melvin Gray

Certificate of Service

I certify that a copy of the Brief of Appellant was served electronically on this th the 13 day of July, 2015, to the following party and that the electronic transmission was reported as complete:

Kirk Hawkins Attorney at Law 224 West Beauregard Suite 303 San Angelo, Texas 76903

Attorney for Appellee Teresa A. Simmons

32 APPENDIX

33 APPENDIX! No. B130232F

TERESA A. SIMMONS ) IN THE DISTRICT COURT OF ) v. ) TOM GREEN COUNTY, TEXAS ) PAUL D. SIMMONS ) 119m JUDICIAL DISTRICT

JUDGMENT

On the 22nd day of July, 2014, the Court heard Petitioner's Petition for Enforcement of Order.

Petitioner TERESA A. SIMMONS appeared in person and through attorney of record Kirk

Hawkins.

Respondent PAUL D. SIMMONS appeared in person and through attorney ofrecord Melvin

Gray.

The making of a record of testimony was made by Lori Dobbins, Official Court Reporter.

The Court has considered the pleadings and official records on file in this cause and the

evidence and is ofthe opinion that judgment should be rendered for Petitioner.

The Court specifically finds that a suit to enforce future interest must be brought within two

(2) years of the anniversary of the date the right to the property matures or accrues or the suit is

barred. The Court finds that the earliest Petitioner TERESA A. SIMMONS learned about the

retirement distribution was after August 2012, and therefore the Statute ofLimitations began to run

after August 2012. The Court further finds that Petitioner's suit to enforce the future right was filed

April2014, within two (2) years ofPetitioner's discovery of the distribution.

Therefore, it is accordingly ADJUDGED that TERESA A. SIMMONS, Petitioner, recover

from PAUL D. SIMMONS, Respondent, judgment for--

1) $48,757.60 as the principal amount due;

44 2) $278.00 costs of court;

3) $2,600.00 attorney's fees;

4) $51,635.60 total judgment;

5) post-judgment interest at the rate of 6% per year on the judgment from the date of

judgment until paid and all costs of court.

IT IS ORDERED that Petitioner shall have all writs of execution and other process

necessary to enforce this judgment.

All relief not expressly granted herein is denied.

SIGNEDtbis 44k /~ ~/.V _;;:' /_Lk9~4 JUDGE PRESIDING -

MELVIN GRAY/ Attorney for Respondent

45 APPENDIX2 Cause # B-13-0232-F TERESA SIMMONS § In the 119th District § Court vs. § of PAUL D. SIMMONS § Tom Green County, § Texas

Findings of Fact & Conclusions of Law. Findings of Fact: 1. Plaintiff (former wife) and Defendant (former husband) were divorced on June 1, 1987 in New Mexico. Plaintiff was awarded a portion of Defendant's retirement acquired through Defendant's employment with Conoco. Plaintiffs portion was to be paid if, as and when received by husband. Wife's portion was defined in the Divorce. 2. Defendant worked for Conoco for a total of 25 years, from February 12, 1979 to 2004. In 2004, Targa purchased Conoco-Phillips and Defendant continued to work for Targa. While working for Conoco, he was married to Plaintiff for 8 years, 3 months (2179 to 6/1/87). 3. Defendant received $295,500.61 retirement benefits from Conoco employment on 11/1/2004. 4. Defendant used the retirement distribution to pay bills, including a debt payable to Wells Fargo that was secured by a lien on Defendant's homestead. 5. Defendant paid Wells Fargo in August, 2012. 6. Wells Fargo signed a Release of lien on August 29, 2012. 7. Plaintiff learned of this retirement distribution sometime after August 2012 when her daughter told her that Defendant was mad at a loan company and paid them with proceeds from a retirement distribution. 8. Plaintiff filed a Notice of Registration of Foreign Decree in Tom Green County Texas District Court on April4, 2013 and then gave notice to Defendant of the Registration and in a note stated "We've registered this decree in anticipation of having to enforce a portion of that decree regarding your Conoco retirement." 9. On April 22, 2013, Defendant filed a response, including affirmative defenses of laches and statute of limitations. Defendant requested a hearing to contest enforcement of the registered order. 10. On April3, 2014, Plaintiff filed a Petition to Enforce the Order.

Findings of Fact and Conclusions of Law 52 11. Plaintiff has incurred reasonable and necessary attorney fees of $2,600 to collect her share of the retirement and court costs. 12. Plaintiffs share of the retirement account is $48,757.60 based on the formula in the Decree [112 times (Feb 1979 to June 1, 1987 i.e. 8 years 3 months) divided by 25 years with the Company (300 months).

Conclusions of Law: 1. Family Code Section 9.003(b) provides: A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred. 2. The earliest Plaintiff learned about the retirement distribution to Defendant was after August 2012. 3. The Statute of Limitations began to run after August 2012. 4. Suit to enforce the future right was filed April2014, within 2 years of Plaintiffs discovery of the distribution. ' 5. Laches is an equitable remedy to prevent an inequitable result. Defense of laches is denied. 6. The Court awards Plaintiff a Judgment for $48,757.60, plus $2,600 attorney fees, all costs of Court and interest as allowed by law.

Date Signed /~ Ben Woodward, Judge Presiding

Findings of Fact and Conclusions ofLaw 53 APPENDIX3 (f

..D '87 JUU -t P4 :Qj

IN THE DISTRICT COURT OF EDDY COUNTY STATE OF NEW MEXICO

PAUL D. SIMMONSi Petitioner, ). ) vs. ) ..No. DR-87.;.40-S r . TERESA A. SIMMONS , ) ) . Respondent. · )

DECREEOF DISSOLUT:IONOFMP..RRIAGE . . .. . . ~ . . . . . . . .

THIS MAT'rER having ~ome. befor.e the. Court upon the veri- ~ied ~etLti6~ for Dissolutio~ of M~rriage ori file hereini and . . . . ·. .

. upon the Child Custody, Support ancl Property Settlement· Agreement

ex~cute~ by t~~ parties. and presented . to the Court foi its conside.ration, and with . .P~titioner his attorney, John . app.ea~ihg ..·' .. . . .. J· . . .

Funk, and th.e Co:urt having heard the testimony and being. suff~c~ently ~dvise~· i~- the premises, ,FINDS:

1. Petitioner has. been a resident of .the State of New

· Iwiexico- for more than· six months immediately preceding the filing . . . .

of the Petition herein,·. and the Court has jurisdiction of the parti~s an~ the subject matter bf this action. Because of . . . . . . ' . discord and. conflict. of . . personalties,. . the. legitimate ends of . . the ·.. marriage relationship have been de3troyed, pre~epting any reason- able expectation of. reqonciliatfoi1. All ma~erial allegation~ in the. Petition filed h,endn are t-r~e •. 2. 'l'he Child Custody, Support and Property Settlement

~greement executed by the parties and presented to the Court is

tair to both parties and should be approved.

Based on the foregoing, the Court CONCLUDES:

~hat the marriage of the parties should be dissolved

a[).d the term~ of the Child Custody, S~pport and Property Settle-

ment Agr~ement executed by the parties shoul~ be incorpo~a~ed ·herein with the same force and effect as if fully set forth' at

this point.

IT IS, TfrEREFORE, ORDERED, ADJUDGED AND. DECREED that

the marriage of the parties be, and hereby is dissolved, and that

the Child Custody, Support and Property Settlement Agreement on

file herein. .. . be, and :;, .' .· h~re~y .. . is . incorporated by reference as if . .

. full.y set forth at this point. . ~/-7/r··

·_5/di···· District Judge

SUBMITTED BYi MAREK & YARBRO, P. A •

.Ba#flnk~ ·. 110 ·P. Shaw w~ o. Drawer AA · .

carlsbad, New Mexico 8822l.,;.Ai\ ·• · {505) 885~6615 . . IY.EPE3'tCERTIPf i'r15. Attorneys. for·Petitioner ABOVE 1$ A TRU 1.': AND CORRECT . ·COP'{ OF'THE 0!'\lGINAL FILED ... ON~l·.. wrTNESS - :;r. -tQ 15 ··.·.- H("•l;l~ AND SEAL THIS . .· ·.... ERiC ELLIS. · .· · ·. ·. C~· DISTRl. ~. 0 ... ·..... · a·· .,0,Q_ .· .· . . . · . . . ·. ·.. ·. .. . OEe!JTY APPR;ii}ED BY:

DICrC:'RSoN";y;rsK .. &. VANDIVER . i"' BY'' ;a<'( CCcj Re0ecca Dickerson ~- {?it_t5Ck-! Seventh & Mahone, Stiite E At::.esia, New Mexico 88210 ( 505) 746-9841 Attorneys for Respondent I

·~.·

·.../··:

tO. IN THE. DISTRICT COURT OF EDDY COUN TY STATE OF NEW.MEXICO

PAUL D. SIMMONS, )

.. Petit icmer, ) ) ) . . . .VS• > . No�· 0R�a1-,o-s . ) . ·· TERESA A. SIMMONS, )

· Respondent. } . ) . '

'

' ·. CHILD CUSTODY, SOP: ,.. AND . PROPERTY SETTLEMENT .&uREF....�ENT. . ' ...

THIS•AGREll?1ENT,made and entered into by Paul D. Simmons, .• hereinaft er referred. to as "Husband"; and. Teresa A "'. Simmons,. hereihaf ter referred: . ' to a:s "Wife I' .. .

. .

. W X T� i SSE TH: . . . . -

The· . . parties.· hereto . are· husban. . d and .wife bu.t pro- . ceedings for. the -diio;solu.tion of the marriage are presently· pend-· . . . . . . : : ' .

ing in the District Court · of Ecidy . C�unty,· . in . . the cause styled- : . : above; . -. . · · · . ... . : . . . . .

. Petitioner•• s, Paul D. s immons, mailing addregs is ·•

; Petitiorier' s ·. Social Security Number is .1 and Petitioner's. date of-_ - birth is . Respondent's, Ter:esa A. Simmons,. mailing .

- address ' '

is

11 ·.·.: :,

~ Respondent's Social Security Number is ; and Respondent's cate of birth is .

C. It is the intention of the parties to enter into an

agreement undPr which their respective rights and obiigations as

to their minor children, property rights and all rights,

privileges and obligations to each other ~rising ocit of the

marriage relatiol"'ship . . or otherwise . should be fully provided for. ..

NOW, TFEREFORE, in considen~tion of the foregoing,. it ·is agreed as follows: . . . . .

1. Purpose .of Agreement. This agreement shall be sub-

. mitted to th~ oistrict Co.urt of Eddy County .for approval of its··

terms and if approved, for incorporation into the Decree of Dis~

. solution of Marriage 'co .be< entered in these pr6ceedings as. the . . : .. .

·order. of .the Court~. If. not approved and incorporated ... this agree-

•ent'shall have no· effect.

2. Child Custody. and Visitation.··. Both. of .the parties

are fit and pr6per persons tb. have the. t::::tte,: custody and control ·of th.e parties' minor childr~n;

· The parties shall be awarded· joint custody of the

· mi.nor children, pursua~t to §40-4-:9.1 N.M.S.A. (1978), upon the· . '· '·. . . ·.. . . ..

following parenting plan. Husband shall have physical custody of· the minor chi idren ·du:::-ing each·. regular. school year. Wife f!"lall . . . have physical custody of the minor children during tneir summer. . . . . . ~- . . . . . . .

scho~l vacation; Each parent shall,be entitled to reaSonable

visitation with ihe chil~ren . during. the other . par~nt•~ pe~~~d of . . . . . .

phys~dal dri~tody. The parties agree that the.rninoc childr~n~hav~

12 both reached the age at which their preferences and activities should be considered in setting visitati~ns. The parties agree

to cooperate ~ith each other and the children to insure that the

children spend significant amounts of time with each parent. The

parties further agree to each be supportive of the children's

rel~.tionship with thE' other parent, positive about that relation-

ship, to encourage· the children to enjoy their relationship with . . the ot~er pa~ent and n6t to interfere with the parent/child

relationship of the other. . . . .

3. Child Support. During summer scl:10ol vacations, or other periods of time when t·Hfe shall have physical custody of . . the minor children for 30 days or more,. Husband shall pay tc ~nfe . . . . for ~he.~u~port ~nd maintenanc~ of the patties' minor childr~h · $100.00 per .month, due on the fir:·;t day· of the month •. While Wife : . . attends ··law school, she . shall not :..;,~ i. !Higated to pay .Husband any

arr.:Junt. foi the s.upport and maintenance of the minor children. . . . . . . .. : . .

4. Custody and support Jurisdibtion. . . Upon Wife's . g.rad·uation fr.om· law school.,·. this Court shall have continuing·.

··.jurisdiction to decide. whether the custody. and/or child supp~rt provided in.this . agreement . . should .be modified. . - . ..

s. Temporary Support.· Until December 31, ·1988~ Wife.

sh~Jl continu~ to use qertain credit cards ~urrentli in he.r posses~Lo~ for the p~rchase of ~asoline and aQtomobile

.13 maintenartce supplies. Husband agrees to pay all such expenses charged on the credit cards up to a maximum amount o~ $100.00 per month. 6. Division of Community Proper!_y. The parties' community property shall be divided as follows: A. Wife shall h~ve set over to her as her stile and separate property: 1 .. Jewelry 2~ 1986 Oldsmobile .3. 1968 Ford Mustang 4. $9,000.00, compris~d of cash. advarced frir . school· expenses and proceeds.· from her·. teacher. retirement bene~ · .fits.·· Apple 2E computer and equipment Waterbec1 Microwave . H:~deabed Wood desk

.14 B. Husband shall have set over to him as his sole and separate pt0perty: 1. Master bedroom furniture 2. 10" black and white televisi6n 3. Three end tables 4. Chest of drawers 5. Waterbed 6. Two wood chairs 7. Yellow easy chair 8. Half bed in extra bedroom. 9. Set of encyclopedias 10. 12 gauge·pump action shotgun 11. • 22 rifle · 12.. 30/30 rifle 13. · . 410 shotgun 14.. 17" black and white television 1.5 •..Texas Instruments computer 16. wood·chair in extra bedroom 17. Suitcases 18 ~· 19" color television. a.nd $tand 19. Two recliner chairs 2 o• Coffee. table 21 ~ Two end tables 22. Lamp in.living room 23. Two sofas· ·. . . 24 •. Wood rocking chair .in: living room 25. · Dinette table . · 26. Black and white tele~isi6ri 27. Wood dinette table. with four wooden chairs 28. Microwave and stand 2 9. Sears trash compactor 30. 19 cubic .. foot refrigerator 31. Electric stove · · · 32. ·Pots, pans and dishes 33~ Pool table · 34. Four bar stools· 35. Color televi~ion (broken) 36. Queen size bed .37~ · lg".black and white television and stand 3 8. ·CheGt of . drawers in Amy' S room · 39.· TWo booksh~lves 4 0 ~ .· Small stereO in Amy's room 41.· Deep freeze 42~ Electric dryer 43 ~· Washing mach in~ · 44. christmas tre~ and decorations 45. Half bed in Jason Is roorn . 46. Chest of drawers· in Jason's room · 47. Small stereo in Jason's room

15 48. Small desk in Jason's room Rome made p~cnic table 49. Lincoln welder 50. 51. Wooden patio chairs Gas barbecue grill 52. Assorted hand tools 53. Lawn mower 54. Electric edger 55. . 56. Various lawn equipment 1973 travel trailer 57. Gooseneck stock trailer 58. 59~ Five horses 60. T~ree saddles 61. Horse halters, bridles and tack 62. lOO bales o~ hay 63. 1985 F250 Ford pickup .. 64. Residence located at 1308 Bryan Circle ·. 65. Jewelry 66 •. 35 mm camera .arid. lens 67. ·coin collection. . 68 • . Husband's retirement; pension, thrift, profit sharing and acquired. through Husband's empl.oyment with Conoco, except that portion set aside to Wife in ·paragraph 6. A. 23 above. · · . .· ·• . . . .· . . . · .·. . .. · . ·• · · · 69 •. BUsb~~d's personal effe~ts and belongings and ~he hou~ehold ~rirnitnre and furnishings and other per~ortal property cu~rently in hi$ possession. 7 • . Division ~f Communify Debts. ·A. HUsband shall assume and pay and hold Wife harmless

:£or the following indebt~dness of the patties: 1. ~oneco thtift loin in the.approximate amount

of $11,078.93. . . ·~

. . .· _ .· ._ 2. Conoco Credit Union in the approximate amount . . . .

of $8t90l.36. 3. In~er~al Revenue·s~rvic~ in the a~ount of

$531.60.

4. VISA in th~' approxi~te amount of $1,076.64 •. 5. · Visa G~ld Card:in t~e approximate amount of

$4,834.57.

16 . ;, .....

6. Master_ Card (California) in the approximat~

amount of $1,207.75. 7. Master Card (O)tlahoma) in the approximate

. amount of $256~26.

8. Conocci Gas Card in the approximate amount of -$461. 89_.•.. ·. . . . . :

9. Sears in the approximate amount of $1,501~39. · 10~ united New Mexic6 B~n~ (n ihe approximate

amount Of $3 i 727. 81~. lL- Penny's in the approximate amount of $31.10. 12. Gold Master C_ard in the. approximate ·amount of $600.00 •.

13. ·._ Columbia Pacific University in the amount of.

$1,.739.71·

14. United !\Jew Mexico Bank at Albuquerque .in tbe

.approximate amount of $82 1 200. oo, secured. by the parties' r.esi..;.

dence. • B. Should any further' comrriuni.ty liabiliti:3S be found ··to- e-~is--~,~~s-u-e-h--l-ia-bll-:iti·es sha:i.l _become· th~ sole and s~para te liability of the party having incUrred the liability, and that.. . . . party shall hold the. other . . party harmless from· .. . ~ said liability. . .. . . . . :. . . . c.- Each party indemnifi~s the oth~r party and hold~ . . . : . . the other party harmless from all ·liability, expenses, costs and . :;

... _.· ·.-:'.· .· . .. . ~ .:i' ... .. . . ···. ~l,, 17' attorney's fees incurred when a creditor attempts tc collect, or does collect, a debt or liability from one party that was assumed

·. by the other: party under this agreement.

'· Income Tax. Husband and Wife shall file a joint income tax .return for lh8 tax year 1986 and separate returns for

subsequerit tax years. A. Eadh party agrees to Fro~ide the other with any

information or documentation necess~ry £o enable the parties to file such income tax returns .. . . . . . . . . . B •. . The . parties . agree that all-refunds due on. the 1996 . ·. . . :

income tax ret urns shall be paid one-half to Wife and orie_: half to

Husband. . .

C. · .. Each party will indemnify the other for all coSts, expenses arid attorney's fees inc.urred when any tax. authority . . .

attempts to collect, or does ~oliect, a tax obligation from- one party that was assumed by ·the o:ther par:ty under this agreement. ·In. the e~ent any prior joint. return. is audited or contested or ..· . . '• .

·a.ny additional. tax, interest or penalties are found d1lf',• the_ . . . . .

-pa~tie~ will each pay only .o11e-h9-l_f of such additional. tax, ·inter- · est or ~- ' penalties~. . .. . . The indemnification stated above shall also be· ·· applicable._ to the. tax, interest or penalty liability on such

prior returns. The indemnification stated above Shall>not apply. . -... . .· .. . . . . .

. when . .. the ·tax, interest or. . penalty . . .· liability arises . from an in~. . .

tentional misrepresentation, ·failure . t;e report income or other fraud. · · t:Jnder such ci rcums t.ances, th_e party responsible £ot the

·... intentional· misrepresentation,· failure to report or fraud shall be fully responsible for any liabilities incurred and shall hold the othar party harmless for any such liabilities.

D. So long as Husband has physical custody of the chil-

dren for more than ~ix months of each year, Husband will be allow-

ed to take the children as. deductions for income tax purposes and

Wife will execute whatevet forms·are required by tax authortties

to effectuat~ this provision.

8.. Voluntary Execution. Each party s.tates that this

compromil3e agreement is fair and equitable and has been entered . .· .· . . .

in to wi tho tit any undue influence, fraud or misrepresentations, or for any purpose e~cept as specified herein. This Agreement .· . ·. . . : . ·.. .. :. • .. settles all. claims and disputes between the parties and contains . .. . ·. the entire understanding of· the parties, who ackn.owledge that . .. ..· . . . . .

':here heive been and are no representations, warran_.ties, covenants or. understandings othe.r· than those expressly set forth. Each . . ·. .· . . . party specifically states a complete disclosure has been made of.· . · .·,·. ·. .i. . .. . . . ·... ·all assfts and liabilities to the other party. The pc;trties agree to execute ail deeds, titles,· docu- ment~, ·.. . ·.· p~pers. necess~ry and .·· . ,to et'feCtuate this . . ·.: . agreement. · The

parties. further agree that i i any such de.eds, docull'.ents and pape~s are not exe6uted within 30 days from the Decr~e of Dis~

solution of Mairiage, the Decie~ shall act as the con~ey~rice of

all property ( inc 1 u ding a s aut ho r i zed by § 47 -1-12 N • M• S • A.

~i978 ). The remedies p~ovided under the ~ew Me~ico RUles of . .· . ·Civil Procedure,· and specifically. Rule 70, shall also be avail.:..

able to each party.

19 9. New Mexico Law. This agreement shall be governed,

construed and enforced in accordance with the· laws of the State

of New Mexico.

10. .Modification or Waiver of Provisions. Any modifi-

cation or addition to th(.;! terms of this agreement, or the subject

matter covered by this agreement, shall only be. done ar1d be effec-

tive if made in writing and executed with the same formality as

this a~r~~ment~ The failure of eith~r party to insist upon per- . formal1ce of any of the provisions of this agreement shall .not be

a waiver of any ~Ub~equent-defatilt c~ th~ same o~.a similar

· nature. In the event either party defaults· ,in any of his or . her • obligations under .this agreement,·· th~ defaulti~g party shall be : ·. . .· .· . . ....

liable to the other party for· all reasonable expenses· incurred by

th~. ot·h':t' party, including actual attorney's fees, .co'sts and l{tigation·exp~nses, irt pursuing enforcement of·the.obli.gations

created. by this agreement. . 11. Binding Effect. Thi~ agree~ent shall be f~lly

effective and bindi~g upori the paiti~s and their personal rep- resentati;es,. estates, . and assig9s. as of .the date the .last .party·

actually signed thl.s agreement. Any .property acquired by either .·· . .. .

. party after. the effective date of. this. agreement shall be t:he

sole and separate property of the .party_ acquiring such property.

12. C6nsent to Judgment. ~Wife hereby acknOwledges that Husband is represented by Marek & Yarbro, P.A.,. and that she

has employed Dickerson, Fisk & Vandiver to represent her in this.

·proceeding. Wite hereby consents- to t.he entry of a Final Decree

20 of ~issolution of Mar~iage incorporatinq this Child_ Custody,

Sup~- )rt and Property Settlement A-greement as the Order of the

Court, and consents to entry of a Final Decree of Dissolution of

Marriage, at any ti~e, without ariy further ~ppearance by her in

this matter.and without any further notice to her.

IN .WITNESS WHEREOF, the parties have executed this

agreement on the ; 9'-!.}:;- -day of _--~.!~•A.'+.·.£./,o· ·-~-,_-_ _ _ , 1987 •

... . 'lJ ·.· . '/"l< .. /. / ./ ··./. ·7 ~-/., ·' .· . . . . . .. . ~-. . g ·.J/dz ·. .·.... · .· -~ccu.L------.---.~ -Ttl:~~~ ~F·s1~re====-" _-. Paul_ o. Simmons, Husband _· ·

STATE OF·OKLAHOM:A. ) )ss. COUNTY · OF. OKLAHOMA .·} . .

The foreg~instrument was acknowledged ?ef_ore_ me this /? day of ?Z;L:iA·L. , 1987, by Teresa A. S1mmons. , (} 4 .?Z~~ . N~ry"'P"ubl1c M~ycommission expires; ·~--.--Ye4· . '/ 5; 12R'.:?: '· .. .; . ~-- ~ ··--· .. S'IATE OF NEW MEXICO } . ) ss .. COUNTY OF . . EDDY . -. . ) .· .. . .

·. . The foregoin-g . instrument was acknowledged< before me· this · /.:;r ·_·. day of .. _J4!tflte: --_·. ·._ , 1987, by· Paul D~ Simmons.·

. : . . -·. My commjssion expires: .. H~~··.z,t;..tff_ . • . . .•..