Ttie*.-urtotAppeals "' sbAhDistrict KOV1 82015 

### Tixarkana,Texas * 

### DebraAudrey,ClerK 

# ORIGINAL
NO. 06-15-00038-CV

TRIAL COURT NO. 2013-09-482-CCL

IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT TEXARKANA, TEXAS

IN THE MATTER OF THE MARRIAGE OF AMANDA CHERI BRADSHAW, 

### Petitioner/Appellant

AND
BARNEY SAMUEL BRADSHAW, 

### Respondent/Appellee FILE0M 

### TneCotiTtSJA^ate Sixth©fsWfet 

## NOV1$2015 Texarka'na,te'x'a's 

### DebraK.Aufray,"6fe'rk

Appeal in Cause Number 2013-09-482-CCL From the County Court at Law Rusk County, Texas The Hon. Chad Dean, Presiding Judge

BRIEF FOR APPELLEE

BARNEY SAMUEL BRADSHAW RESPONDENT/APPELLEE TDCJ No. 01942978 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886



### ORAL ARGUMENTREQUESTEDTABLE OF CONTENTS Page Index of Authorities ii Statement Of The Case 2 

### Statement RegardingOralArgument ... 3 SummaryOfAppellee's Replies 3 Appellee's ReplyToAppellant's First Issue 3 Appellant's Contention 1 3 Appellee'sReply 3 Argument AndAuthorities... 4 I. No Error Was Preserved. .. 5
II. There Was No Error In The Characterization Of The House And Real Property 5 

### Appellee's ReplyToAppellant's Second Issue 8 Appellant's Contention. •••\ 8 Appellee's Reply 8 Argument AndAuthorities 8 Prayer 9 Certificate Of Compliance 10 Certificate Of Service 10INDEX OF AUTHORITIES 

### CASES . Page In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373 

### (Tex. App.-Dallas 2013, nopet.) 6 Neylandv. Raymond, 324 S.W.3d 646 (Tex. App.-Fort Worth2010)..6 Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997) 6 

### Tolesv. Toles, 45 S.W.3d252 (Tex. App.-Dallas 2001) 6 Von Hohnv. VonHohn, 260 S.W.3d 361 (Tex. App.-Tyler 2008)...5,6 Wells v. Wells, 251 S.W.3d 834 (Tex. App.-Eastland 2008) 6 Worfordv. Stamper, 801 S.W.2d 108 (Tex. 1990) 6 CODES, STATUTES & RULES TEX. R. APP. P. 33.1(a) 5 

### TEX. FAM. CODEANN. § 7.001 (Vernon 2006) 5

liNO. 06-15-00038-CV

TRIAL COURT NO. 2013-09-482-CCL

IN THE COURT OF APPEALS FOR THE SIXTH SUPREME JUDICIAL DISTRICT TEXARKANA, TEXAS

IN THE MATTER OF THE MARRIAGE OF
AMANDA CHERI BRADSHAW, Petitioner/Appellant

AND
BARNEY SAMUEL BRADSHAW, 

### Respondent/Appellee

Appeal in Cause Number 2013-09-482-CCL From the County Court at Law Rusk County, Texas The Hon. Chad Dean, PresidingJudge

BRIEF FOR APPELLEE

TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: COMES NOW BARNEY SAMUEL BRADSHAW, Respondent/Appellee, and submits this brief pursuant to the provisions of the Texas Rules 

### ofAppellate Procedure inopposition of the appeal incause number 2013-09-482-CCL.STATEMENT OF THE CASE nal Decree of Divorce entered on This is an appeal from a Fi June 17, 2015, by the County Court at Law of Rusk County, Texas, 

### the Honorable Chad DeanPresiding Judge. (CR1:48-51). Petitioner/ 

### Appellant filed anOriginal Petition for Divorce onSeptember 10, 2013. (CRl:5-7). The original trial was held on November 12, 2013. The trial court made its ruling, signed and entered the Final De 

### cree of Divorce on the same day. (CRl:12-20). Appellee appealed the original decision of the trial court to the Twelfth Court of Appeals at Tyler, Texas. Appellee chal 

### lenged the trial court's division of the marital estate, the award of seperate property toAppellant, and the refusal to allowAppel lee to appear in court after a request. The judgment of the Twelfth Court of Appeals was that the case be reversed and remanded to the 

### trial court forfurther proceedings. (CR1:26). Petitioner/Appellant filed a First Amended Petition for Div 

### orce on May12, 2015. (CRl:56-58). A hearing was held onMay 4, 2015. (RR1). On May 5, 2015, the trial court entered Judge's Rul ing of Property of Parties, awarding each party equal one-half 

### interest. (CR1:30-31). OnJune 9, 2015, the trial court judge en tered a ruling awarding 80% of the estate to Appellant and 20% to Appellee, based on a finding of fault in the breakup of the mar 

### riage. (CR1:63). The trial court made its ruling, signed and en tered the Final Decree of Divorce on June 17, 2015. (CRl:64-67). Appellee requested appointment of counsel on appeal, which 

### the trial court denied on July 21, 2015, because he is an indigent inmate in the Texas Department of Criminal Justice. (CR1:70).STATEMENT REGARDING ORAL ARGUMENT Appellee believes that oral argument would assist the Court 

### indiscerning the applicable case law andpertinent facts. Appel lee, therefore, requests oral argument. SUMMARY OF APPELLEE'S REPLIES The trial court correctly characterized and confirmed the house and real property at 78 Florey Lake, Kilgore, Texas, as community property. Appellant failed to preserve for review her complaint that the trial court erred by failing to characterize and confirm the house and real property at 78 Florey Lake, Kil gore, Texas, as the seperate property of Amanda Bradshaw. Appel lant did not object to the evidence and she failed to present some of her argument to the trial court. The trial court judge did not abuse his discretion in the division of the marital estate of the parties. Additionally, Ap pellant failed topresent some of her argument to the trial court. APPELLEE'S REPLY TO APPELLANT'S FIRST ISSUE Appellant's Contention 

### "The trial court erred in failing to characterize and confirm the house and real property at 78 Florey Lake, Kilgore, Texas as 

### the seperate property of AmandaBradshaw." (Appellant's Brief at 

# 7). j Appellee's Reply |

i Appellant failed to preserve her issue for reviewbecause she did not object to the evidence and she failed to present some of her arguments to the trial court. Alternatively, the trial court did not err by failing to characterize and confirm the house andon the motion to reopen evidence real property at 78 Florey Lake, Kilgore, Texas as the seperate property of Amanda Bradshaw. Argument And Authorities 

### After the trial court entered a finding that the property purchased on June 22, 2012, 78 Florey Lake, Kilgore, Texas, was communityproperty, Appellant filed a Motion to Reopen Evidence. 

### (CR1:30-31; CRl:32-33). Appellee acknowledges that Appellant "disagree[d] with the Court's ruling characterizing the FloreyLake property as community property." (CR1:33). Afterwards, ahearing was held on June 9, 2015. (RR3). 

### At the beginning of saidhearing, Appellant restatedher disagree 

### ment with the trial court's characterization of saidproperty. (RR3:4-5). Appellant then entered evidence as to the asserted fault 

### on thepart ofAppellee. (RR3:5-19). Appellant allowed thehearing to conclude without obtaining a ruling from the trial court that 

### the property at 78 FloreyLake, Kilgore, Texas, was either commun 

### ity orseperateproerty of Appellant. (RR3). In fact, Appellant 

### clearly stated "[t]hat's all wehave, Your Honor," at the conclu sion of thehearing. (RR3:25). That same day, the trial court is 

### suedaruling "findfing] the real estate at 78 Florey [Lake,] Kil gore, TX is communityproperty." (CR1:63). Due to a finding of fault in the breakup, 80% of the.housewas awarded toAppellant 

### and 20% toAppellee. (Crl:63). The trial court's rulingwas deliveredviafax toAppellant's trial counsel that day. (CR1:63). An entire weekpassedprior to the trial court entering the Final Decree ofDivorce. (CRl:64-67). Appellant failed to file amotion

i 

### to reconsider the characterization of the communitypropertybeforethe final decree was filed. (CR1> I. No Error Was Preserved To preserve a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint and that the trial court ruled on the request, objection, or motion. See TEX. R. APP. P. 33.1(a). 

### Appellant's argument onappeal, that the action of a third party insurance company cannot alter the seperate property character of real estate and that Appellee produced no documentation to corroberate his claims for reimbursement or contribution, was not men tioned at the hearings and is not the same argument to the trial court. Nothing in the record suggests that these legal arguments 

### were apparent to the trial court. (CRl; RR2; RR3; RR4). The trial court had no opportunity to consider or rule on these arguments. 

### (CRl; RR2; RR3; RR4). Therefore, Appellant failed to preserve these arguments for review and they should be overruled.
II. There Was No Error In The Characterization Of The House And Real Property In a decree of divorce, a court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party. TEX. FAM. 

### CODEANN. §7.001 (Vernon2006). A trial court's division of prop erty is reviewed under an abuse of discretion standard. See Von 

## Hohnv. VonHohn, 260S.W.3d631j 640 (Tex.App.-Tyler2008, no pet.). Indetermining whether the trial court abused its discre tion, the entire record is reviewed to determine if the trial court 5acted arbitrarily and unreasonably. See Toles v. Toles, 45 S.W.3d 

### 252, 266 (Tex. App.-Dallas 2001, pet. denied). Legal and factual sufficiency challenges are not independent grounds for asserting error in the division of property, upon divorce, but instead are relevant factors in determining whether the trial court abused its discretion. See In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 

### 373, 383 (Tex. App.-Dallas 2013, 

### nopet.). Anappellate court en gages "in a two-pronged inquiry to determine whether the trial court abused its discretion: (1) did the trial court have suffic 

### ient evidence upon which to exercise its discretion and (2) did the trial court err in its application of that discretion?" Ney 

### landv. Raymond, 324 S.W.3d 646, 649 (Tex. App.-Fort Worth 2010, nopet.). The trial court must have an evidentiary basis for its find 

### ings. SeeSalinas v. Rafati, 948 ,S.W.2d 286, 289 (Tex. 1997). A trial court does not abuse its discretion if there is some evi dence of a substantive and probative character to support the de cision. Von Hohn, 260 S.W.3d at 640. When no findings of fact or conclusions of law are filed or requested, it is implied that the trial court made all the necessary findings to support,its judg ment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the 

### trial court's implied findings are supportedbythe evidence, an appellate court must uphold the judgment on any theory of law ap plicable to the case. See Wells v. Wells, 251 S.W.3d 834, 838-39 

### Tex. App.-Eastland 2008, nopet.). On May4, 2015j the trial court held a final hearing on the 

### divorce. (RR2). During this hearing, Appellant testified that she

### wanted a no fault divorce granted. (RR2:6). She also testified that the parties were married on November 13, 2010. (RR2:5). Appellant further testified that the houseion Nolan Street caught fire in 

### February 2012. (RR2:7). Claculating the time betweenthe marriage and the fire, without consideration of the amount of time the part- 

## ! ' ies lived together before marriage, indicates the parties lived together on Nolan Street as husband and wife for at least one year 

### and three months. j When asked what she did with the insurance check, Appellant 

### responded "I paid off the remaining mortgage balance off on that, and thenpurchased a new home and furniture." (RR2:7). This was a 

### clear indication to the trial court that Appellant did not com 

### pletely "own" the house on Nolan Street when she marriedAppellee, that Appellee was also vested in the house. Appellee testified that 

### whenAppellant's ex-husband left, thehusband took everthing out of the house on NolanStreet. (RR2:13). Appellee refurnished the house on Nolan Street, purchasing TVs, furniture and even dishes. 

### (RR2:13). Inaddition, Appellee testified that therewas $40,000 owed on thehouse on NolanStreet. (RR2:15). Appellant never con tradictedAppellee's assertion, whichindicates that Appellee did make a contribution to the house on Nolan Street. On cross-exam ination Appellant testified that the check from the insurance set 

### tlement was issued in both parties names and that the proceeds 

### fromthat checkis whatbought the property at 78Florey Lake, Kil 

### gore, Texas. (RR2:10). Appellant further testified that saidhome was bought during the marriage. (RR3:19-20).For the foregoing reasons, Appellee respectfully asserts that 

### Appellant's first issue should be overruled. APPELLEE'S REPLY TO APPELLANT'S SECOND ISSUE Appellant's Contention 

### "The trial judge abused hisdiscretion inthe division of the 

### marital estate of theparties." (Appellant's Brief at 9). Appellee's Reply 

### The trial judge did not abuse his discretion in the division of the marital estate of the parties. Argument And Authorities 

### Once again, Appellant is dissatisfied with the division of the communityproperty. After having been, awarded 100% of the house 

### at FloreyLake, the Twelfth Court of Appeals reversed the trial 

### court's judgment based onthe trial court's abuse of discretion in the division of the property. :(CR1:26). Onremand, and after a i 

### hearing, the trial court found that the property at 78 Florey Lake
was community property and awarded each party equal one-half inter 

### est. (RR2; CRl:30).Appellant then filed a motionto reopen evii dence and amended her petition for divorce, this time claiming i 

### there was fault inthe breakup of the marriage. (CRl:32-33; CR1:56- 58). The trial court then ruled that the house and property at 78 Florey Lake was still community property, but due to a finding of fault in thebreakup of themarriage the court awarded 80% of the 

### house to Appellant and 20% toAppellee. (CR1:63). Still not satis fied, Appellant now claims an abuse of discretion by the judge. While Appellee disagrees with the division of the community property, he asserts that the trial judge did not abuse his dis-cretion.

i The argument and authorities cited in the II. subsection of Issue One is incorporated hereto For these reasons, Appellant ruled.
PRAYER I For the reasons stated herein, Appellee prays that the trial 

### court's judgment be in all things affirmed. Dated: November 13, 2015. Respectfully submitted, and applies to this issue also. 's second issue should be overBARNW SAMUEL BRADSHAW APPELLEE TDCJ No. 01942978 Mark W. Michael Unit 2664 FM 2054 Tennessee Colony, Texas 75886
CERTIFICATE OF COMPLIANCE i I hereby certify that this brief contains 193 lines of text.

BARNEY SAMUEL BRADSHAW i CERTIFICATEI OF SERVICE I hereby certify that a true and correct copy of the fore going brief has been served by placing same in the United States Mail, postage prepaid, on the 13thday of November, 2015, addressed toAppellant's Counsel at: Ebb B. Mobley Attorney At Law P.O. Box 2309 Longview, Texas 75606 

## Js^^l^lm^Js^jj—- BARNEY SAMUEL BRADSHAW