CAUSE NO. 13-15-00081-CV

IN THE THIRTEENTH COURT OF APPEALS OF TEXAS 

STATE OF TEXAS 

____________________________________________________________

APPEAL FROM COUNTY COURT AT LAW NO. 2 

HIDALGO COUNTY, TEXAS 

PRESIDING JUDGE JAY PALACIOS 

___________________________________________________________

JUAN GABRIEL ESPRONCEDA, Appellant 

VS.

SYLVIA SUE HANDY, Appellee 

____________________________________________________________

APPELLEE’S FIRST BRIEF

____________________________________________________________ 

 Respectfully submitted, 

 Victoria Guerra 

 3219 N. McColl Rd. 

 McAllen, Texas 78501 

 (956) 618-2609

 (956) 618-2553 (fax) 

 State Bar Number: 08578900 

 Appellee’s Attorney

ACCEPTED

13-15-00081-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

11/23/2015 4:08:14 PM

Dorian E. Ramirez

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 11/23/2015 4:08:14 PM DORIAN E. RAMIREZ Clerk
ii

IDENTITY OF PARTIES AND COUNSEL

Pursuant to rule 38.1(a) of the Texas Rules of Appellate Procedure, 

Mr. Serrano offers the following names of all parties, trial, and appellate 

counsel:

APPELLANT: Juan Gabriel Espronceda

TRIAL COUNSEL Oscar Alvarez

600 South 11th Street

McAllen, Texas 78501

(956)686-6330

APPELLATE COUNSEL Victoria Guerra 

3219 N. McColl Rd.

McAllen, TX 78501

(956) 618-2609 (phone)

(956) 618-2553 (fax)

vguerralaw@gmail.com (email)

 

APPELLEE: Sylvia Sue Handy

TRIAL COUNSEL Robert J. Salinas

Roel Gutierrez

2101 Wood Avenue

Donna, Texas 78537

APPELLATE COUNSEL Pro se
iii

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL......................................ii

TABLE OF CONTENTS.............................................................iii

INDEX OF AUTHORITIES..........................................................iv

STATEMENT REGARDING ORAL ARGUMENT.............................vi

STATEMENT OF THE CASE......................................................vii

ISSUES PRESENTED...............................................................viii

STATEMENT OF FACTS............................................................1

SUMMARY OF THE ARGUMENT.................................................1

ARGUMENT AND AUTHORITIES.................................................3

CONCLUSION..........................................................................16

CERTIFICATE OF SERVICE.......................................................16

CERTIFICATE OF COMPLIANCE.................................................17
iv

INDEX OF AUTHORITIES

CASES

Armstrong v. Manzo, 380 U. S. 545 (1965).................................................4

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276

(Tex. 1998) ..............................................................................................7

CA Partners v. Spears, 274 S.W.3d 51 (Tex. App.—Houston [14th Dist.] 

2008, pet. denied.)...................................................................................6

Chafino v. Chafino, 228 S.W.3d 467

(Tex. App.—El Paso 2007, no writ)........................................................14

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)..............................5, 6

Crisp v. Security National Insurance Company, 369 S.W.2d 326

(Tex. 1963). .....................................................................................11, 13

Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983) .....................3

Domangue v. Domangue, No. 12-04-00029-CV, 2005 Tex. App. LEXIS 

6097 (Tex. App.—Tyler Aug. 3, 2005, no pet.).........................................8

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238

(Tex. 1985). ...........................................................................................14

Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 

960 S.W.2d 41 (Tex. 1998)......................................................................7

Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80 (Tex. 1992)..................6

J.W.T., 872 S.W.2d 189 (Tex. 1994) ..........................................................4

Michigan v. Long, 463 U.S. 1032 (U.S. 1983).............................................4

Micklethwait v. Micklethwait, 2007 Tex. App. LEXIS 5086 

(Tex. App.—Austin June 27, 2007, pet denied)......................................15
v

Mullane v. Central Hanover B. & T. Co., 339 U.S. 306 (1950) ................4, 5

Murray v. O & A Express, Inc., 630 S.W.2d 633 (Tex. 1982) ......................3

Peralta v. Heights Medical Center, Inc., 485 U.S. 80 ( 1988) ......................4

Ragsdale v. Progressive Voters League,

801 S.W.2d 880 (Tex. 1990)....................................................................8

Roark v. Allen, 633 S.W.2d 804 (Tex. 1982)...........................................3, 4

Roberson v. Robinson, 768 S.W.2d 280 (Tex. 1989)..................................7

Rosenfield v. White, 267 S.W.2d 596 (Tex. Civ. App.—Dallas 1954, writ 

ref’d n.r.e. ........................................................................................11, 13

Shaw Tank Cleaning Co. v. Texas Pipeline Co., 442 S.W.2d 851

(Tex. Civ. App.—Amarillo 1969, writ ref’d n.r.e.) ..............................11–13

Tiller v. McLure, 121 S.W.3d 709 (Tex. 2003).............................................5

Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) ......................................7

World-Wide Volkswagen Corp. v. Woodson, 444 U. S. 286 (1980).............4

Zeifman v. Michels, 212 S.W.3d 582

(Tex. App.—Austin 2006, pet. denied). ..................................................15

RULES

Texas Rules of Civil Procedure

Rule 9.4(i)(l)..............................................................................................17

Rule 22 .......................................................................................................3

Rule 301 .................................................................................................3, 5

Texas Rules of Appellate Procedure 

9.4(i)(3).....................................................................................................17
vi

STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument. 
vii

STATEMENT OF THE CASE

Nature of the case: This is an appeal from a final divorce decree 

after a bench trial. (CR 146–63). 

Course of Proceedings: The final decree of divorce in this case 

was signed on November 21, 2014. (CR 146–63). On December 19, 2014, 

Appellant filed a motion for new trial. (CR 166–67). Appellant’s motion for 

new trial was overruled by operation of law on or about February 4, 2015.

Appellant filed a notice of appeal on February 18, 2015 and an amended 

notice of appeal on March 2, 2015. 

Trial Court Disposition: The trial court rendered judgment by 

signing the final divorce decree at issue on November 21, 2014. (CR 146–

63). 
viii

ISSUES PRESENTED

ISSUE 1 (Restated): Due process of law under the Texas 

Constitution and the United States Constitution was 

violated when the Trial Court heard and ordered child 

support arrearages in the amount of $ 4,000.00.

ISSUE 2 (Restated): Due process of law under the Texas 

Constitution and the United States Constitution was 

violated when the Trial Court heard and ordered that 

Appellant pay to Appellee an amount of $ 300,000 which 

represents the replacement value of property that 

Appellant purportedly took. 

ISSUE 3: The Uncontradicted Testimony of Appellee at the 

Hearing of August 11, 2014 (2R), which Served as the Sole 

Basis for the Final Decree of Divorce, Entered on 

November 21, 2014 (C146–63), Did Nothing More Than 

Raise a Fact Issue Because the Testimony was Confusing, 

Unreasonable and Its Credibility was Questionable and the 

Lower Court’s Reliance on it as the Basis for the Final 

Decree of Divorce Not Only Constitutes Error, it 

Constitutes a Fundamental Abuse of its Discretion 

ISSUE 4: The evidence was legally insufficient to support 

the Trial Court’s judgment that Appellant should pay to 

Appellee $ 300,000.00 within three (3) months of the 

signing of the decree. 

ISSUE 5: Because the Record is Devoid of any Reliable 

and Credible Testimony by Appellee, There Was 

Insufficient Evidence Upon Which the Trial Court Could 

Exercise Its Discretion, Compelling the Conclusion that the 

Trial Court Abused Its Discretion, as a Matter of Law, by 

Entering the Final Divorce Decree
STATEMENT OF FACTS

Appellant and Appellee were married on April 12, 1997. They had 

one child during their marriage—Gabriel Roy Espronceda born April 3, 

1998. 2R10. Appellee testified that the parties stopped living together in 

August 2011. 2R9. Appellee served time in the federal penitentiary from 

October 2010 and was released on December 21, 2012. She was away 

from her son for a period of two years and two months. 2R36. While 

Appellee was in prison, Appellant stopped visiting her around June 2011 

and he moved out of the house in August 2011. 2R39. 

Appellant did not appear at the bench trial of this cause. Appellee 

testified at said trial. The issues before this Court are whether Appellee’s 

testimony and the documentary evidence admitted into evidence in trial are 

credible and reliable and whether there exists legal and factually sufficient 

evidence to support the judgment of the Trial Court. 

SUMMARY OF THE ARGUMENT

Due process of law under the United States Constitution and the 

Texas Constitution were violated when the Court proceeded to hear a trial 

on issues of retroactive child support and replacement value of property 

that was purportedly taken by Appellant. Appellant had not received notice 

of said arguments as they were not plead in Appellee’s pleadings. 
2

Appellee’s testimony, though uncontradicted, was so confusing, 

unreasonable, and lacking in credibility, that it did nothing more than raise a 

fact issue was error and a fundamental abuse of discretion, and could not 

serve as basis for the Trial Court’s judgment. The evidence was legally 

insufficient to support the judgment of the Trial Court.

The Trial Court abused its discretion in ordering retroactive child 

support in the amount of $ 4,000 and in ordering that Appellant pay to 

Appellee an amount of $ 300,000 which represents the replacement value 

of the property that Appellant purported took. Said amount of $ 300,000 is 

an unfair measure of Appellee’s purported losses in that it gives to Appellee 

an unfair windfall. 
3

ARGUMENT AND AUTHORITIES

ISSUE 1 (Restated): Due process of law under the Texas 

Constitution and the United States Constitution was 

violated when the Trial Court heard and ordered child 

support arrearages in the amount of $ 4,000.00.

ISSUE 2 (Restated): Due process of law under the Texas 

Constitution and the United States Constitution was 

violated when the Trial Court heard and ordered that 

Appellant pay to Appellee an amount of $ 300,000 which 

represents the replacement value of property that 

Appellant purportedly took. 

In Texas, "a civil suit in the district or county court shall be 

commenced by a petition filed in the office of the clerk." Cunningham v. 

Parkdale Bank, 660 S.W.2d 810, 812 (Tex. 1983) citing TEX. R. CIV. P. 22. 

"The office of pleadings is to define the issues at trial," Murray v. O & A 

Express, Inc., 630 S.W.2d 633, 636 (Tex. 1982) and to "give the opposing 

party information sufficient to enable him to prepare a 

defense." Cunningham, 660 S.W.2d at 812 citing Roark v. Allen, 633

S.W.2d 804, 810 (Tex. 1982). Also, the judgment of the court must conform 

to the pleadings of the parties. Cunningham, 660 S.W.2d at 812 citing TEX.

R. CIV. P. 301 

“Notice” under the meaning of due process of law under the 

Fourteenth Amendment to the United States Constitution and due course of 

law article I, section 19 of the Texas Constitution includes notice of the 
4

allegations brought against Appellant and the opportunity to present his 

defenses against those charges. See Mullane v. Central Hanover B. & T. 

Co., 339 U.S. 306, 314 (1950). Failure to give notice violates "the most 

rudimentary demands of due process of law." Peralta v. Heights Medical 

Center, Inc., 485 U.S. 80, 84-85 ( 1988) citing Armstrong v. Manzo, 380 U. 

S. 545, 550 (1965); see also World-Wide Volkswagen Corp. v. Woodson, 

444 U. S. 286, 291 (1980). Texas Due Court of Law under the Texas 

Constitution can provide greater protections than the due process clause of 

the United State Constitution. See J.W.T., 872 S.W.2d 189, 198 (Tex. 

1994). It is well established that the Texas Constitution can provide greater 

protections that those under the United States Constitution. See Michigan

v. Long, 463 U.S. 1032, 1068 (U.S. 1983). 

In the instant case, there is no pleading that asserts a tort action for 

conversion or retroactive child support. It can be inferred that not knowing 

that these allegations were going to be tried, Appellant bothered not to 

appear at said bench trial. 2R5,7. The issues were not defined for trial. 

Murray, 630 S.W.2d at 636. The Appellee’s pleadings did not give 

Appellant information sufficient to enable him to prepare a 

defense." Cunningham, 660 S.W.2d at 812 citing Roark v. Allen, 633 

S.W.2d 804, 810 (Tex. 1982). Further, the judgment in this cause did not 
5

conform to the pleadings. Cunningham, 660 S.W.2d at 812 citing Tex. R. 

Civ. P. 301. Appellee failed to provide Appellant with “notice” under 

the meaning of due process of law under the United States Constitution 

and due court of law under the Texas Constitution. Mullane, 339 U.S. 306, 

314 (1950). Appellee has violated "the most rudimentary demands of due 

process of law." Peralta, 485 U.S. at 84-85. Appellant was deprived of due 

course of law and due process when he was forced to defend against the 

allegations of retroactive child support and the order that Appellant pay to 

Appellee $ 300,000.00 which purportedly represents the value of the 

property that was purportedly taken by Appellant. 

As such, reversing and remanding this case to the Trial Court would 

be proper, with an order mandating compliance with federal and Texas due 

process of law. 

LEGAL SUFFICIENCY

Standard of Review:

Legal Sufficiency: The test for legal sufficiency is "whether the 

evidence at trial would enable reasonable and fair-minded people to reach 

the verdict under review." AIMS ATM, LLC v. Sanip Enters., 2014 Tex. 

App. LEXIS 2261, *3–7 citing City of Keller v. Wilson, 168 S.W.3d 802, 827 

(Tex. 2005); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (holding 
6

that, in reviewing "no evidence" point, court views evidence in light that 

tends to support finding of disputed fact and disregards all evidence and 

inferences to contrary). In making this determination, a reviewing court 

must credit favorable evidence, if a reasonable fact-finder could, and 

disregard contrary evidence, unless a reasonable fact-finder could not. City 

of Keller, 168 S.W.3d at 827. So long as the evidence falls within the zone 

of reasonable disagreement, an appellate court may not substitute its

judgment for that of the fact-finder. Id. at 827-28. The fact-finder is the sole 

judge of the credibility of the witnesses and the weight to give their 

testimony. Id. at 819. Although an appellate court considers the evidence 

in the light most favorable to the challenged findings, indulging every 

reasonable inference that supports them, it may not disregard evidence 

that allows only one logical inference. Id. at 822. If there is more than a 

scintilla of evidence supporting a finding of fact, an appellate court will 

overrule a legal-sufficiency challenge. CA Partners v. Spears, 274 S.W.3d 

51, 69 (Tex. App.—Houston [14th Dist.] 2008, pet. denied.).

When, as here, no findings of fact or conclusions of law are 

requested or filed, an appellate court implies all necessary findings in 

support of the trial court's judgment. Holt Atherton Indus., Inc. v. Heine, 835 

S.W.2d 80, 83 (Tex. 1992). However, because a reporter's record has been 
7

provided, the implied findings may be challenged for legal and factual 

insufficiency the same as jury findings or a trial court's findings of fact. 

Roberson v. Robinson, 768 S.W.2d 280, 281, 32 Tex. Sup. Ct. J. 337 (Tex. 

1989). A reviewing court must affirm the judgment on any theory of law that 

finds support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 

(Tex. 1990).

Under a legal sufficiency standard reviewing courts must consider all 

evidence in the light most favorable to the prevailing party, indulging every 

reasonable inference in that party's favor. Associated Indem. Corp. v. CAT 

Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). The findings are 

legally sufficient if they are supported by more than a scintilla of evidence. 

Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 

S.W.2d 41, 48 (Tex. 1998).
8

ISSUE 3: The Uncontradicted Testimony of Appellee at the 

Hearing of August 11, 2014 (2R), which Served as the Sole 

Basis for the Final Decree of Divorce, Entered on

November 21, 2014 (C146–63), Did Nothing More Than 

Raise a Fact Issue Because the Testimony was Confusing, 

Unreasonable and Its Credibility was Questionable and the 

Lower Court’s Reliance on it as the Basis for the Final 

Decree of Divorce Not Only Constitutes Error, it 

Constitutes a Fundamental Abuse of its Discretion 

The testimony of an interested witness, such as a party to the suit, 

though not contradicted, does no more than raise a fact issue to be 

determined by the jury if the testimony was unreasonable or incredible, or 

its credibility was questionable, then such testimony only raised a fact issue 

to be determined by the trier of fact. Ragsdale v. Progressive Voters 

League, 801 S.W.2d 880, 882 (Tex. 1990); see also Domangue v. 

Domangue, No. 12-04-00029-CV, 2005 Tex. App. LEXIS 6097 (Tex. 

App.—Tyler Aug. 3, 2005, no pet.).

At the trial of this cause,1 Appellee testified that she received a FenPhen settlement which Appellee classified as her sole and separate funds 

and property. 2R16. Appellee also had a settlement from an accident at 

 

1 Appellee requests that this Court take judicial notice of Appellant’s convicted crimes of moral turpitude

which should have a bearing on her lack of credibility in this case. In the United States District Court of the 

Southern District of Texas, McAllen Division in cause number 7:09-CR-00396-1, the Appellee served a 30-month 

term in the Federal Bureau of Prisons with a 1-year term of supervised release for the charges of making a false 

statement on a tax return and conspiracy to conceal or harbor aliens. 

Appellee also received a probated sentence in the 139th Judicial District Court of Hidalgo County, Texas in 

cause number CR-469111-C wherein she was charged and convicted in a multi-count indictment of offenses 

including: theft of property less than $200,000 (1st degree felony) and several counts of securing execution of a 

document by deception.
9

Maverick Market in Donna. 2R15. All the property was missing when she 

returned. 2R20. Exhibit 4 contains a list of all of Appellee’s separate 

property. 1R, Pl’s Ex.4. Appellee thought that a burglar had taken all of her 

property so her sister called the Sheriff’s office. 2R21; 1R, Pl’s Ex. 3. A 

report was made indicating that someone had broken into Appellee’s

house. Nowhere in the report does it state that all the properties listed in 

Exhibit 4 had been taken by Appellant. 2R58; 1R, Pl’s Ex. 4. Yet, Appellant 

asserts that Appellee told her that he had all of her property and was 

holding it in storage, but he did not tell her what storage. 2R58. Appellee 

purchased the home with her Fen-Phen money for $ 335,000. 2R59. She 

had just as much invested in personal property as she had in the home. 

2R59. All of the items were purchased in 2000 when they moved into the 

house. 2R59. They were purchased over time. 2R59. Appellee does not 

recall the last time that she purchased an item for the house that was 

taken—she left to prison in 2010 and was gone until 2012. 2R60. Some 

items are at least over 10 years old. 2R60. Appellee is not depreciating 

any of the items and does not know the depreciation value. 2R63. She is 

using replacement value to come to the figure of $ 300,000. 2R62. 

Appellee wants Appellant to have supervised visits even though the child, 
10

who was 16 years old at the time of the trial of this cause, was a very smart 

person who was an honor student. 2R77. 

It is unbelievable that Appellee spent almost equal amounts of money 

on house furnishings as she did to purchase the home. 2R59. Appellee 

states that Appellant took her property (2R58), yet the police report does

not mention Appellant as the one who took the property. 2R58. Appellee 

expects a windfall in seeking payment of a lump sum of $ 300,000 when 

some of the property she states that Appellant took is over 10 years old. 

Appellee’s testimony in this regard was incredulous and does not serve as 

an appropriate basis for the final divorce decree in this case. 

Because the Appellee’s testimony was riddled with inaccuracies and 

permeated with contradictions, her testimony at the August 11, 2014, 

hearing, as a whole, is not credible and does not merit any deference by 

this Court and further demonstrates that the court below, by basing its final 

decree of divorce on this testimony, not only committed error, it abused its 

discretion. It was an abuse of discretion and plain error for the trial court to 

base the entirety of the final decree of divorce on this testimony. As such, 

this case should be reversed and remanded to the Trial Court for further 

proceedings.

ISSUE 4: The evidence was legally insufficient to support 

the Trial Court’s judgment that Appellant should pay to 
11

Appellee $ 300,000.00 within three (3) months of the 

signing of the decree. 

Without notice to Appellant, the Trial Court tried an issue in the nature 

of tort, wherein Appellee alleged that Appellant Appellee’s separate 

property from the marital estate while Appellee was in prison, and the total 

value of the lost or stolen property was $300,000.00. 

Replacement value is defined as the cost of replacing the injured 

property, minus any offset necessary to prevent a windfall to the plaintiff. 

This offset represents any benefit to the plaintiff gained from using the 

replacement, which may be a newer and less depreciated article than the 

original. Shaw Tank Cleaning Co. v. Texas Pipeline Co., 442 S.W.2d 851, 

854–855 (Tex. Civ. App.—Amarillo 1969, writ ref’d n.r.e.). Replacement 

value is recoverable only if the property has no market value. Shaw Tank 

Cleaning Co., id. at 854. If the property has no market value and can be 

replaced, replacement costs are the proper measure of damages 

(Rosenfield v. White, 267 S.W.2d 596, 599 (Tex. Civ. App.—Dallas 1954, 

writ ref’d n.r.e.)), unless replacement costs do not represent a fair measure, 

as when replacement might provide an economic gain to the plaintiff. See

Crisp v. Security National Insurance Company, 369 S.W.2d 326, 328–329 

(Tex. 1963).
12

It is unlikely that the replacement value will exactly equal the value of 

the injured article. When the replacement cost might provide some 

economic gain, as, for example, when a used article is replaced with a new 

one, the cost of restoration may be reduced by any betterment that might 

result. Factors considered in determining any offset to an article’s 

replacement value include whether the replacement will last longer than the 

original article would have lasted; whether the replacement was in better 

condition than the original article, which may have been in a deteriorated 

condition; and the fact that the original article may have been obsolete and 

the replacement up-to-date. Shaw Tank Cleaning Co., 442 S.W.2d at 854–

855.

In the instant case, Appellee purchased the home with her Fen-Phen 

money for $ 335,000. 2R59. She had just as much money invested in 

personal property as she had in the home. 2R59. All of the items were 

purchased in 2000 when they moved into the house. 2R59. They were 

purchased over time. 2R59. Appellee does not recall the last time that she 

purchased an item for the house that was taken—she left to prison in 2010 

and was gone until 2012. 2R60. Some items are at least over 10 years old. 

2R60. Appellee is not depreciating any of the items and does not know the 

depreciation value. 2R63. She is using replacement value to come to the 
13

figure of $ 300,000. 2R62. Appellee wants Appellant to have supervised 

visits even though the child, who was 16 years old at the time of the trial of 

this cause, was a very smart person who was an honor student. 2R77. 

Appellee expects brand new items to replace the items that went 

missing from her home. 2R60. As previously stated, replacement value is 

defined as the cost of replacing the injured property, minus any offset 

necessary to prevent a windfall to the plaintiff. See Shaw Tank Cleaning 

Co., 442 S.W.2d at 854–855. Appellee failed to establish that the items 

taken had no market value or that no windfall would have occurred. See 

Shaw Tank Cleaning Co., 442 S.W.2d at 854. Appellee also failed to show 

that the items taken had no market value and could be replaced, therefore 

replacement value is proper. See Rosenfield, 267 S.W.2d at 599. Rather,

applying the replacement value standard does not represent a fair measure 

because would result in an unfair windfall to Appellee because some of the 

items are 10-14 years old. 2R60. See also Crisp, 369 S.W.2d 326. 

As a result of the foregoing, the Trial Court’s orders that Appellant 

pay back $ 300,000 to the Appellee was an abuse of discretion and was 

not founded on any reliable and credible evidence. As such, this Court 

should reverse the judgment of the Trial Court and remand this case for a 

new final trial, with orders that the proper measure of damages be applied. 
14

ISSUE 5: Because the Record is Devoid of any Reliable 

and Credible Testimony by Appellee, There Was 

Insufficient Evidence Upon Which the Trial Court Could 

Exercise Its Discretion, Compelling the Conclusion that the 

Trial Court Abused Its Discretion, as a Matter of Law, by

Entering the Final Divorce Decree

The Abuse of Discretion standard of review is the generally 

applicable standard of review in family law appeals. Most of the appealable 

issues in a family law case are evaluated against an abuse of discretion 

standard, be it the issue of property division incident to divorce or partition, 

conservatorship, visitation, or child support." Chafino v. Chafino, 228 

S.W.3d 467, 472 (Tex. App.—El Paso 2007, no writ) citing Garcia v. 

Garcia, 170 S.W.3d 644, 648 (Tex. App.—El Paso 2005, no pet.). An 

abuse of discretion is not determined according to whether the reviewing 

court would have decided the issues in the same way as the trial court, but 

whether the trial court acted without reference to any guiding rules and 

principles. Id. at 649 citing Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 242 (Tex. 1985). In other words, the appropriate inquiry is 

whether the ruling was arbitrary or unreasonable. Chafino, 228 S.W.3d at 

472. 

To determine whether an abuse of discretion occurred, a reviewing 

court engages in a two-pronged inquiry: whether the trial court had 

sufficient information upon which to exercise its discretion and whether the 
15

trial court erred in its application of discretion. Zeifman v. Michels, 212 

S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied). The traditional 

sufficiency review comes into play with regard to the first question; a 

reviewing court then proceeds to determine whether the trial court made a 

reasonable decision based on the evidence. Id. See also Micklethwait v. 

Micklethwait, 2007 Tex. App. LEXIS 5086 (Tex. App.—Austin June 27, 

2007, pet denied). 

Here, the Trial Court abused its discretion when it ordered retroactive 

child support in the amount of $ 4,000.00. There was discussion had about 

the parties having entered into an agreement that Appellee’s claim for 

retroactive child support and Appellant’s claim for child support while 

Appellee was in prison was a “wash.” The claims cancelled each other out. 

2R40. It certainly seems like the fair and equitable thing to do.

The Trial Court also abused its discretion when it ordered that 

Appellant pay $ 300,000 to Appellee when, as discussed above, said 

amount is not a fair measure of the purported loss by Appellee and clearly 

constitutes a windfall to Appellee.

As a result of the foregoing, this Court should reverse the judgment of 

the Trial Court and remand this case for further proceedings as to the 

issues at hand.
16

CONCLUSION AND PRAYER

Appellant prays that this Court reverse the judgment of the Trial 

Court. Appellant prays that this Court order that the Trial Court apply the 

correct measure of damage and remove the retroactive child support order 

all together. Appellant also prays for such other relief in which he is justly 

entitled.

Respectfully Submitted,

Law Office of Victoria Guerra

320 W. Pecan Avenue

McAllen, Texas 78501

(956) 618-2609

(956) 618-2553 (fax) 

By: /s/ Victoria Guerra

Victoria Guerra 

State Bar No. 08578900

Attorney For Appellee, Ms. Ibarra

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the above and 

foregoing Appellant’s brief was forwarded by email to Sylvia Sue Handy at 

her email address: sylviasuehandy@aol.com on this 23rd day of

November, 2015.

/s/ Victoria Guerra

Victoria Guerra
17

CERTIFICATE OF COMPLIANCE

In compliance with TRAP 9.4(i)(3), the undersigned certifies that the 

number of words in this brief, excluding those matters listed in Rule 9.4(i)(l), 

is 3,408.

/s/ Victoria Guerra

Victoria Guerra