                                                                                 ACCEPTED
                                                                             01-13-00377-CV
                                                                  FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                         5/1/2015 1:34:37 PM
                                                                       CHRISTOPHER PRINE
                                                                                      CLERK

               NO. 01-13-00377-CV
           IN THE COURT OF APPEALS
FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS
                                           FILED IN
                                     1st COURT OF APPEALS
                HOUSTON, TEXAS           HOUSTON, TEXAS
                                                     5/1/2015 1:34:37 PM
                                                     CHRISTOPHER A. PRINE
                                                             Clerk
                     JAMES THOTTAM
                           Appellant

                               v.

                   ELIZABETH JOSEPH
                          Appellee


  Appeal from the 311th District Court of Harris County, Texas
                    Cause No. 2007-75702


            APPELLANT’S MOTION FOR REHEARING


                            /s/ Bradley W. Tilton II ________________
                            BRADLEY W. TILTON II,
                            Texas State Bar No. 24035538
                            TILTON & TILTON LLP
                            3730 Kirby Drive, Suite 1020
                            Houston, Texas 77098
                            (713) 774-8600 (office)
                            (713) 222-2124 (facsimile)
                                           TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... ii

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

I. Statement of the Case ...........................................................................................2

II. Issues Presented ..................................................................................................3

Issue 1: The Court of Appeals erred in finding that the trial court did not abuse its
  discretion when it did not include the term “domicile” in the amended divorce
  decree.. ....................................................................................................................3

Issue 2: The Court of Appeals erred in finding that the terms of summer
  possession were moot and the trial court did not abuse its discretion in not
  including the terms from the MSA in the amended final decree of divorce. .........3

Issue 3: The Court of Appeals erred in granting Appellee’s Motion to Dismiss the
  property related issues under the acceptance of benefits doctrine. ........................3

III. Argument & Authorities ...................................................................................3

   1. Child Related Issues ...........................................................................................4

     a. The Court of Appeals erred in Overruling Appellant’s issue related to the
   domicile restriction and the omission of the word “domicile” in the Amended
   Final Decree of Divorce .........................................................................................4

     b. The Court of Appeals erred in overruling Appellant’s issue related to the
   summer periods of possession finding that the issue is moot .................................5

   2. Property Related Issues ......................................................................................7

     a. The Court of Appeals erred in granting Appellee’s Motion to Dismiss under
   the acceptance of benefits doctrine ........................................................................7

     b. The Court of appeals erred in stating there is no evidence of financial
   hardship on the part of Appellant ...........................................................................8


                                                               ii
      b. The Court of Appeals erred in finding that there is no indication of the
   effect of a reversal of judgment on the rights to benefits accepted ........................9


IV. Conclusion ........................................................................................................11

Certificate of Compliance ........................................................................................12

Certificate of Service ...............................................................................................13




                                                           iii
                                         INDEX OF AUTHORITIES
State Cases

Cauble v. Gray, 604 S.W2d 197, 198 (Tex. Civ. App.—Dallas 1979, no writ) .......4

Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002) .................................7, 8

Leedy v. Leedy, 399 S.w.3d 335, 339 (Tex. App.—Houston [14th Dist.] 2013, no
  pet.) .........................................................................................................................8

Gathe v. Gathe, 376 S.W.3d 308, 313 (Tex. App.—Houston [14th Dist.] 2012, no
 pet.). ........................................................................................................................8


State Statutes

TEX. FAM. CODE ANN §153.312 (Vernon 2015).........................................................7




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                              NO. 01-13-00377-CV

                   IN THE COURT OF APPEALS
        FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS
                        HOUSTON, TEXAS



                              JAMES THOTTAM
                                    Appellant

                                         v.

                             ELIZABETH JOSEPH
                                    Appellee



          Appeal from the 311th District Court of Harris County, Texas
                            Cause No. 2007-75702



                     APPELLANT’S MOTION FOR REHEARING




      TO THE HONORABLE FIRST COURT OF APPEASL”

      JAMESON LUKE THOTTAM, Appellant, files this Motion for Rehearing in

response to the opinion issued by the Court on April 9, 2015, and respectfully shows

the following:


                                                                                   1
                                   I. Statement of the Case


       Nature of the Case:            This is an appeal brought by Appellant, Jameson

Luke Thottam (“Appellant”) of a ruling by the 311 th Judicial District Court of Harris

County, Texas Ordering the Parties to be named Joint Managing Conservators of the

child born during the marriage, Ariyanna Thottam, Awarding terms of visitation and

child support for the child, and dividing the community estate of the parties,

Appellant Jameson Luke Thottam and Appellee Elizabeth Joseph (“Appellee’). CR

633-6891.

       Course of proceedings and disposition:                 Appellant, Jameson Luke Thottam,

filed his Brief of Appellant requesting this Honorable First Court of Appeals to

remand the division of the entire community estate of Appellant and Appellee to the

trial court for redetermination and to remand the Order of the Court regarding the

child the subject to the suit to comply with the terms of the mediated settlement

agreement of the parties. Appellee, Elizabeth Joseph, filed a reply brief, and the


1
 Citations to the Court Clerk’s Record (CR) are abbreviated as follows: CR pages numbers. If a
paragraph number is specified on a page within the Clerk’s Record the paragraph number will then
be identified following the colon. For example, citation to line 4 on page 00014 of the court clerk’s
record would be shown as “CR00014:4” Citations referenced the Court Reporter’s Record for the
Arbitration on Property Issues with Reginald Hirsch, which has been supplemented to the Clerk’s
Record, will be abbreviated as follows: ARR:Page Number:Line. For Example, citation to line 4 on
page 14 of the Arbitrator’s Court Reporter’s Record will be listed as ARR:14:4.

                                                                                                   2
Court issued its Memorandum Opinion on April 9, 2015 affirming in part and

dismissing in part. Appellant now files this Motion for Rehearing asking the Court to

reconsider Appellant’s arguments.


                               II. Issues presented


      Issue 1.     The Court of Appeals erred in finding that the trial court did not
                   abuse its discretion when it did not include the term “domicile” in
                   the amended divorce decree.

      Issue 2.     The Court of Appeals erred in finding that the terms of summer
                   possession were moot and the trial court did not abuse its
                   discretion in not including the terms from the MSA in the
                   amended final decree of divorce.

      Issue 3.     The Court of Appeals erred in granting Appellee’s Motion to
                   Dismiss the property related issues under the acceptance of
                   benefits doctrine.

                          III. Argument & Authorities


      The Court of Appeals divided its memorandum opinion into two separate

sections: 1. Child Related Issues and 2. Property Related Issues.




                                                                                     3
      1.      Child Related Issues


      a.      The Court of Appeals erred in Overruling Appellant’s issue related to
           the domicile restriction and the omission of the word “domicile” in the
           Amended Final Decree of Divorce.
      Under child related issues, the Court Overruled Appellant’s issues related to

the domicile restriction and period of possession. Regarding the domicile restriction,

Courts have determined different definitions relating to the word “domicile” and

“residence.” The Court in Cauble v. Gray listed the elements of the legal concept of

“domicile” as 1. An actual residence; and 2. The intent to make it the permanent

home. Cauble v. Gray, 604 S.W2d 197, 198 (Tex. Civ. App.—Dallas 1979, no writ).

The Court further noted that “while a person may have only one domicile, he may

have several residences away from the domicile. Id. While this Court found that

removing the word domicile does not affect any change to Appellee’s right to

establish the child’s primary residence, the issue is that of the permanency

requirement attached to the word domicile.


      Appellant, in entering into the mediated settlement agreement, placed the word

domicile in the MSA to ensure that Appellee intended for the residence of the child to

become permanent. By doing so, it would effectively prevent Appellee from moving

the child’s “residence” across country between Harris County, Texas and Maryland.
                                                                                     4
By removing the word “domicile” from the restriction, there is no requirement for the

residence designated by Appellee to make it a permanent home for the child, which is

extremely important in both effectuating the rights and duties of the parties and the

possession and access of the parties due to the fact that Appellee residing with the

child in Harris County, Texas, would then initiate the 100 miles or less possession

schedule, while establishing the child’s residence and domicile in Maryland would

cause Appellant to have possession pursuant to the 100 miles or more possession

schedule. The major issue would be in the summertime, in which Appellee, without

the requirement of “permanency” in making her decision as to where the child lives,

could change the child’s “residence” from Maryland to Texas, causing Appellant’s

extended summer possession be reduced from 42 days to 30 days.           By omitting the

word “domicile” in the final decree of divorce, the Court essentially did significantly

alter the original terms of the MSA and undermined the parties’ intent. The omission

destroyed the permanency requirement inherent in the word domicile. As such, this

Court should grant Appellant’s Motion for Rehearing.


      b.      The Court of Appeals erred in overruling Appellant’s issue related to the
           summer periods of possession finding that the issue is moot.
      Further, the Court should Grant Appellant’s Motion for Rehearing because the

summer period of possession discussed by Appellant is not moot. Appellant’s issue
                                                                                      5
is not moot due to the fact that the final decree of divorce as drafted essentially

prevented Appellant from having any weekend period of possession in the Summer if

the parties reside over 100 miles from each other. Under the terms of the mediated

settlement agreement, Appellant’s summer period of possession for the child was “per

the family code on within or over 100 miles.” CR 611-612. Under the terms of the

Final Decree of Divorce, Appellant received summer periods of possession, however,

Appellant’s weekend period of possession was absent during the summer. CR 167.

Summer periods of possession included both the extended summer periods of

possession as well as the summer periods of possession on the weekends. Under the

terms of the mediated settlement agreement, the mediated settlement agreement stated

that the terms of the summer periods of possession should be “as per the family

code.”


      However, the mediated settlement agreement did not designate whether the

summer periods of possession only included Appellant’s extended summer period of

possession only. The absence of the term extended is important in the mediated

settlement agreement in indicating that it was the intent of the parties to include both

weekend periods of possession and the extended summer period of possession. The

Texas Family Code’s summer period of possession constitute two separate periods of
                                                                                       6
possession: one dealing with extended summer possession for a period of time of

either 42 days or 30 days depending on whether the parties reside 100 miles apart of

each other, and weekend periods of possession during the summer. Tex. Fam. Code

§153.312 (Vernon 2015). By omitting the word “extended” the summer periods

should have included weekend and extended periods. However, the Final Decree of

Divorce only included extended summer periods of possession and does not include

any weekend periods by Appellant. As such, this Court should Grant Appellant’s

Motion for Rehearing and Reverse the Trial Court’s Judgment and Remand because

the Trial Court committed reversible error in Entering a Final Decree of Divorce

which did not have any weekend summer periods of possession pursuant to the Texas

Family Code.


      2.      Property Related Issues


      a.      The Court of Appeals erred in granting Appellee’s Motion to Dismiss
           under the acceptance of benefits doctrine.
      The applicable law in this case centers on the “Acceptance of Benefits”

Doctrine, which states that a party who accepts the benefits of a judgment may not

appeal that judgment. Tex. State Bank v. Amaro, 87 S.W.3d 538, 544 (Tex. 2002);

Waite v. Waite,150 S.W.3d 797 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).

                                                                                   7
It is the Appellee’s burden to prove that an acceptance of benefits of a judgment has

taken place. Leedy v. Leedy, 399 S.w.3d 335, 339 (Tex. App.—Houston [14th Dist.]

2013, no pet.). If the appellee proves that an acceptance of benefits exists, it then

becomes the Appellant’s burden to demonstrate that either the doctrine does not apply

or that the acceptances falls within one of two well settled exceptions to the rule. See

Leedy, 399 S.W.3d at 339. The first exception allows for a party to accept the

benefits of a judgment without penalty due to economic necessity. See Gathe v.

Gathe, 376 S.W.3d 308, 313 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The

second exception applies if a reversal of the judgment would not affect the appellant’s

right to the benefit accepted. Amaro, 87 S.W.3d at 544.


      b.      The Court of appeals erred in stating there is no evidence of financial
           hardship on the part of Appellant.
      In its Memorandum Opinion, the Court states that no evidence has been

identified in the record to prove that Appellant has suffered any financial hardship.

This, however, is not the case. Regardless of the outcome of the divorce proceedings,

Appellant had little options other than to file for bankruptcy due to a surge of

outstanding debts and tax liabilities. A great deal of taxes were owed to the IRS,

including outstanding property taxes on eight of the parties’ real estate property, that

sum being upwards of $96,000.00, which was emptied from the parties’ E-Trade
                                                                                       8
Account. Much of the unpaid tax liability stemmed from Appellee’s failure to pay

taxes on her separate estate corporation, Zeon Corporation. ARR: 160:2-160:12,

ARR: 85:4-85:22.


      Additionally, throughout the arbitration, evidence and testimony established

Appellant’s dire economic circumstances. On more than one occasion, Jameson

Thottam described various bank accounts being either in the negative or holding

funds that amounted to less than five cents. ARR: 157:13-157:17, ARR: 49:5.

Furthermore, much of Appellant’s evidence in the arbitration focuses on the large

sums of money in accounts which had to be liquidated to satisfy outstanding debts,

including 529 accounts owned by Appellant, leaving Appellant with very little money

and a great deal of debt. ARR:1162:1-1162:16.


      c.       The Court of Appeals erred in finding that there is no indication of the
           effect of a reversal of judgment on the rights to benefits accepted.
      Further, in its Opinion, the Court notes that if the case were remanded for a

new division of the marital estate, there is a chance the arbitrator could award the

interests in the properties differently than was done originally. The Court’s opinion

does not take into account that all of Appellant’s tracing testimony was not admitted

by the arbitrator. In several instances when Appellant proceeded to discuss the

                                                                                      9
tracing of the various pieces of community and separate property at hand in the

divorce, the arbitrator sustained Appellee’s objections, thereby not allowing that

evidence to come into the record. ARR: 1114:18-1117:14, ARR:1120:15-1130:19,

Ex. 168. It is Appellant’s position that had the arbitrator allowed Appellant’s tracing

testimony and correctly divided the property among the parties in the original

proceedings, the property division would have to be the same upon reversal.

Furthermore, it is undisputed that Appellant brought a large separate estate to the

community, and in fact, Appellee admitted she used funds from Appellant’s separate

estate family trust account to enrich her separate estate corporation. Additionally,

Appellee admitted that she regularly used community funds for her separate estate

corporation. ARR: 845:21-847:22, Ex.49. If this was taken into account in the

original proceedings, along with Appellant’s evidence of tracing, the Court, upon

reversal, would have to divide the estate in a such a way that Appellant would be

reimbursed for Appellee’s use of the community estate and Appellant’s separate

estate to enrich Appellee’s own separate estate. It is therefore likely that much of the

properties sold to satisfy Appellant’s creditors would have been awarded to him upon

re-division of the estate.



                                                                                     10
      Furthermore, the arbitrator in his ruling found that the parties’ real estate,

including the Oboe, Dumbarton and Sarong properties, were Elizabeth Joseph’s

separate property. Appellant has contended that the Oboe and Dumbarton properties

are owned equally with Elizabeth Joseph as the parties’ separate property based on

grant deeds originally withheld and only produced by Elizabeth Joseph a few days

prior to the arbitration hearings in 2012. Regardless of whether the Court would find

that Elizabeth Joseph owns the properties as her sole and separate property, the

community estate would have been entitled to a reimbursement claim for the principal

reduction of the mortgage balance on the properties. Furthermore, several assets

which were exempt from the bankruptcy court’s jurisdiction, including the properties

discussed above, would have surely been awarded to Appellant, including a fifty

percent share in the Dumbarton property, along with Appellant’s retirement accounts.

CR 48-106. It is therefore clear that much of the property sold to satisfy Appellant’s

creditors, in addition to property exempt from the bankruptcy court’s jurisdiction

which was incorrectly awarded to Appellee, would likely have been awarded to

Appellant due to the sheer disproportionate division of the parties’ estate in favor of

Appellee.



                                                                                     11
                                  IV. Conclusion


      WHEREFORE, PREMISES CONSIDERED, Jameson Thottam prays this

Court grant Appellant’s Motion for Rehearing, withdraw its opinion, revers the trial

court judgment, and either render judgment for Appellant or reverse and remand for a

new trial.

                                       Respectfully submitted,

                                       TILTON & TILTON LLP
                                       3730 Kirby Drive, Suite 1020
                                       Houston, TX 77098
                                       Tel: (713) 774-8600
                                       Fax: (713) 222-2124

                                       By: /s/ Bradley W. Tilton II
                                         Bradley W. Tilton II
                                         State Bar No. 24035538
                                         Attorney for Jameson Thottam



                      CERTIFICATE OF COMPLIANCE

     I certify this document contains 2,723 words (counting all parts of the
document). The body text is 14 point font, and the footnote text is 12 point font.

                                       /s/ Bradley W. Tilton II_________________
                                       Bradley W. Tilton II




                                                                                     12
                          CERTIFICATE OF SERVICE

        A copy of this motion was served on the persons shown below and attached
 at the addresses reflected on April 30, 2015 by prepaid United States first class
 mail or electronic service.
                                         /s/ Bradley W. Tilton II_________________
                                         Bradley W. Tilton II

Sallee S. Smyth
Attorney at Law
800 Jackson Street
Richmond, Texas 77469
Telephone: 281.238.6200
Facsimile: 281.238.6202
smyth.sallee@gmail.com




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