                                                                                     ACCEPTED
                                                                                 05-15-01345-CV
                    05-15-01345-CV                                    FIFTH COURT OF APPEALS
                                                                                 DALLAS, TEXAS
                                                                            11/4/2015 9:37:24 AM
                                                                                      LISA MATZ
                                                                                          CLERK


    No

                   INTHE                                        FILED IN
                                                         5th COURT OF APPEALS
         COURT OF APPEALS FOR THE                            DALLAS, TEXAS
          FIFTH DISTRICT OF TEXAS                        11/4/2015 9:37:24 AM
                                                               LISA MATZ
                                                                 Clerk


   INRE: JOHN JEFFREY MCCAFFERTY,
            RELATOR




    PETITION FOR WRIT OF MANDAMUS
to the 254th Judicial District Court of Dallas County, Texas


                Cause No. 08-05932-R




                          LAW OFFICES OF FRANK SHOR
                          FRANK SHOR
                          State Bar No.. 18294700
                          1620 E Belt Line Road
                          Canollton, Texas 75006
                          (972) 242-8887
                          (972) 446-7976 FAX
                          FiankShoiLawFiim@gmail.com


                          Attorney for Relator




                             i
                   IDENTITY OF PARTIES AND COUNSEL

        Relator: John Jeffrey McCafferty, certifies that the following is a complete
list of the names and addresses of all parties and their counsel.,

Relator's Lead Counsel:

                          Frank Shor
                          State Bar No , 18294700
                          Law Offices of Frank Shor
                          1620 E Belt Line Rd,
                          Carrollton, Texas 75006
                          FrankShor lawfirm@gmail.com

Respondent:

                          Hon, Susan Rankin
                          Judge of the 254th Judicial District Court
                          Dallas County, Texas
                          George L, Allen Sr., Courts Building
                          600 Commerce Street
                          Dallas, Texas 75202

Real Parties in Interest:

                          John Jeffrey McCafferty
                          Mary Micheline McCafferty

Attorney for Mary Micheline McCafferty:

                          Reagan K, Vernon
                          State Bar No,. 24081192
                          Koons Fuller, P,C.
                          1717 McKinney Avenue
                          Suite 1500
                          Dallas, Texas 75202
                          Reagan@koonsfuller.com




                                          il
                            RECORD REFERENCES

      Relator, John Jeffrey McCafferty, will refer to the Appendix by Exhibit and

page number , as follows (Ex. [exhibit letter], P, [page number])., By way example,

if Relator is citing to page 4 of Exhibit D, the citation will be Ex. D, P., 4. As for

the Reporter's Record, Relator will refer to it as "(RR [page number], Ln„ [line

number(s)])."




                                         iii
                            TABLE OF CONTENTS


IDENTITY OF PARTIES and COUNSEL                                               ii

RECORD REFERENCES                                                            iii

TABLE OF CONTENTS                                                           iv-v

TABLE OF AUTHORITIES                                                       vi-vii

STATEMENT OF THE CASE                                                       viii

STATEMENT OF JURISDICTION                                                     ix

ISSUE PRESENTED                                                               x

INTRODUCTION                                                                   2

STATEMENT OF FACTS                                                             3

SUMMARY OF ARGUMENT

I, The Trial Court Erred in Appointing a Receiver, Because:

      A,. The Trial Court Lacked Authority to Enter
                                                                     ...
                                                        the Order Appointing a
      Receiver (but abused its discr etion if it had the power to rule)
                                                                               7

                                                                               7


                                                                               7

      B . Petitioner Failed to Present the Requisite Evidence to Support the

      of a Receiver'

II Ther e is No Adequate Remedy by Appeal

PRAYER
                                                      —            ....
      Trial Court's Decision to Grant Petitioner's Request for an Appointment
                                                                             10

                                                                              11

                                                                              12

CERTIFICATION                                                                 13

CERTIFICATE OF COMPLIANCE                                                     13


                                        iv
CERTIFICATE OF SERVICE       13-14

APPENDIX                       15




                         v
(Tex.2000)




           .             TABLE OF AUTHORITIES


BlandIndependent School Distr ict v Blue, 34 S.,W,3d 547, 554




Cox v Johnson, 638 S„W,2d 867, 868 (Tex. 1982) (per curiam). ..

Craddockv Sunshine Bus Lines, 134 Tex, 388, 133 S,W.,2d 124, 126
(Tex.Comm.App,— 1939, opinion adopted)




Harris County v. Sykes, 136 S W 3d 6.35, 638 (Tex,2004)




proceeding)          .........
                          ......
                                                                ....
Carl J Battaglia, MD, P A v Alexander , 177 S.W,3d 893, 907 (Tex,
2005)

Claxton v (Upper) LakeFork Water Control, 220 S.W 3d 537, 541
(Tex, App,—Texaikana 2006, no pet)




In re Brookshire Grocery Co , 250 S.W„3d 66, 68 (Tex, 2008) (orig,
proceeding)
                                                                        .-


Downer v Aquamarine Operators, Inc , 701 S ,W.2d 238, 241-42 (Tex,, 1985) ,10

Everett v Everett,421 S,W,3d 918, 921 (Tex, App,—El Paso 2014, no
pet)

Harrington v Schuble, 608 SW2d 253, 256 (Tex. Civ, App. 1980)




In re Jacobs, 300 S ,W,3d 35, 40 (Tex, App —Houston [14th Dist ] 2009, orig.
                  .  ..     .......
                         ....  .....
In re McAllen Med Ctr , Inc , 275 S,W.3d 458, 464 (Tex 2008) (orig,,
proceeding)                                               ..
In re Olshan Found Repair Co , 328 S .W,3d 883, 888 (Tex. 2010)

In re Prudential Ins Co v Am ., 148 S„W, 3d 124, 135-36 & n,47 (Tex .
2004)


                                       vi
                                                                        ..
                                                                         7
                                                                             - -7




                                                                             9

                                                                             8
                                                                              9


                                                                              6

                                                                              7


                                                                             10




                                                                              7


                                                                             11


                                                                             11


                                                                             11




                                                                              7
In re RFC., 282 S.W 3d 722, 728 (Tex.. App—Dallas 2009, no pet,)

In re Sw Bell Tel Co , 35 S.W 3d 602, 605 (Tex, 2000)


denied).        .. .                   .....
                                   ..........




Tex Ass'n ofBus v.. Tex Air Control Bd, 852 S ,W,2d 440, 446
(Tex,.1993)

Texas Indus, Traffic League v Railroad Comm'n, 633 SW,2d 821, 82,3
(Tex.1982) (per curiam)



Tex. R. App,. R. 52.1
                                          ..



Tex,, Fam. Code Ann,, § 9.002 (Vernon 2006)

Tex, Fam. Code Ann, § 9 006(a) (Vernon 2006)
                                              ..
Walker v Packer,827 S,W.2d 833, 840 (Tex, 1992)




Tex,. Fam., Code Ann, § 9..007(a) (Vernon 2006)




                                       vii
                                                    ...
                                                       ....




                                                        ...
                                                          2
                                                                ...
                                                                   .
In re WL W , 370 S..W.3d 799, 807 (Tex App,—Fort Worth 2012, mandamus




                                                                   ..
                                                                      12




                                                                            8


                                                                            7

                                                                            7

                                                                            1

                                                                            8

                                                                            8
                                                                             9

                                                                            11




In re Weekley Homes, L P , 295 S .W,3d 309, 322 (Tex, 2009) (orig. proceeding)


Mayhew v Town ofSunnyvale, 964 S,W.2d 922, 928 (Tex,,1998)          ...
                                                                      .8

O'Carolan v Hopper, 71 S ,W.3d 529, 534 (Tex, App,—Austin 2002, no pet,
hist)      ..
Smithsonv Cessna Aircraft Co , 665 S, W.2d439, 443 (Tex. 1984)..
                                                                             11




                                                                             9

                                                                            10
                          STATEMENT OF THE CASE

Nature of the Case:

       This mandamus proceeding challenges an order appointing a receiver to
handle all portions of the sale of Relator, John Jeffrey McCafferty's, homestead
(and Real Party in Interest's real estate) because the trial court lacked jurisdiction
to enter such an order under the Texas Family Code..

Respondent:        Honorable Susan Rankin
                   Judge of the 254th Judicial District Court of Dallas County,
                   Texas.

Course of Proceedings and Respondent's Challenged Action:

       Respondent did not have the power to enter the October 15, 2015 Order on
Motion to for Appointment of Receiver (her eafter the "Or der ") because the Order
was based on a pr eviously entered order—the December 12, 2013 Interim Or der on
Petition for Enforcement (hereafter the "Interim Order")., The Trial Court's
enforcement of the Interim Or der violated Section 9.007 of the Texas Family Code
(hereafter the "Statute"). In addition, Petitioner, Mary M. McCafferty (Relator's
ex-wife), failed to present the evidence which was called for by the Interim Order
for the Court to grant the requested relief of the appointment of a Receiver
(assuming the Court had the jurisdiction to do so).

       Because the Interim Order amended, modified, altered, and/or changed the
division of property, the trial court was without jurisdiction to enter an Order
enfor cing same..

       Further, the Interim Order required that Petitioner present evidence to
Relator's counsel and to the trial court that Relator failed to pay the sums due
under the Interim Order,, Petitioner failed to present any evidence that Relator
failed to pay the sums due under the Interim Order, Hence, there is insufficient
evidence to the support the Respondent's Order (assuming arguendo, that said
Order is, or was, enforceable).




                                         viii
                       JURISDICTIONAL STATEMENT

      This Court has original jurisdiction to issue extraordinary relief pursuant to

Rule 52. 1 of the Texas Rules of Appellate Pr ocedure,




                                        ix
                      ISSUES PRESENTED

1, Didthe trial court err when it enforced an Order which amends, modifies,
   or alters the division of property contained in a previously signed
   Divorce Decree?

2.. Didthe trial court err when it enforced an order, even though the Movant
    failed to prove the necessary elements as set forth in the order?




                                 x
                           No.


                                    In the
                           Court of Appeals for the
                            Fifth District of Texas


                       In Re John Jeffrey McCafferty,
                                  Relator


                On Petition for Writ of Mandamus to the
          254th Judicial District Court of Dallas County, Texas

                PETITION FOR WRIT OF MANDAMUS

To   the Honorable Court of Appeals for the Fifth District of        Texas
at Dallas:

       Pursuant to Rule 52 of the Texas Rules of Appellate Procedure,

Relator seeks mandamus relief from the trial court's order appointing a

receiver to sell the Relator's homestead, Tex, R. App P. 52,1, Relator would

show that Respondent did not have the power to enter the complained of

Order, but that even in the unlikely event that the Respondent did, that the

Trial Court abused its discretion in granting the complained of Order

(because Petitioner [Real Party in Interest, Mary Micheline McCafferty]

failed to present the evidence required under the terms of said Order to

obtain her requested relief),




                                      1
                              INTRODUCTION

      On October 15, 2015, the trial court signed an Order Appointing a

Receiver (to sell Relator 's homestead). The Order is attached hereto as Ex.

A in the Appendix, which contains a true and correct copy of each of the

original of Relator's exhibits and the Reporter's Record, This Order is based

on an order —to wit, the Interim Order (Ex, B) which amended, modified,

altered, and/or changed the division of property contained in the parties'

Divorce Decree. Thus, the trial court was without jurisdiction to enter the

October 15, 2015 Order, because an order that amends, modifies or alters a

division of property in a divorce decree may not be enforced, F.C., §9 007.

      Further, the Interim Order (upon which the Order appointing the

Receiver was based) contains the following: "If [Relator] fails to deposit or

wire the money in the amounts or on the dates listed above, upon proof

provided to his attorney and to the Court, a receiver will immediately be

appointed to list the [Property]      for sale "   The Reporter 's Record shows

that Petitioner failed to present any evidence that Relator failed to pay the

sums due under the Interim Order. Hence, there is no evidence establishing

that the terms of the Interim Or der were satisfied,

      As a result of the trial court's order, Relator's ability to sell his

homestead is severely constrained, This may detrimentally impact the


                                       2
amount that Relator will recover as his share from the proceeds of the sale of

the property (and may ultimately result in a forfeiture).. Relief from this

Court is therefore necessary.,

      There is no adequate remedy by appeal in this case, as Relator is

unable to file an interlocutory appeal challenging the trial court's order; This

Court should grant the petition for writ of mandamus and order the trial

court to vacate its order appointing a receiver to sale the Relator's

homestead.

                         STATEMENT OF FACTS

      On July 17, 2009, the trial court entered an Agreed Final Decree of

Divorce (hereafter the "Decree"), which stated, in relevant part, as follows:

      1.    IT IS FURTHER ORDERED AND DECREED that the
      property and all improvements located thereon at lot 40, block
      1/8175, Williamsburg at Preston An Addition to the City of
      Dallas, accor ding to the Plat ther eof r ecor ded in Volume 78090,
      Page 1397, map records of Dallas County, Texas, and more
      commonly known as 14327 Hughes Lane, Dallas, Texas 75254
      (hereafter the "Property"), shall be sold under the following
      conditions:

      2.    The Property shall be sold for a price as determined by
      [Relator], [Petitioner] shall receive $509,000 as her share of the
      community pr operty .

      4     The net sales proceeds (defined as the gross sales price
      less the cost of sale and full payment of any mortgage
      indebtedness or liens on the property) shall be distributed as
      follows:



                                       3
       a.    $509,000 to [Petitioner] „ . , Notwithstanding the
       foregoing language, [Relator] shall be reimbursed from the
       $509,000 due [Petitioner] limited to the following amounts:

              1,.Monies paid [Petitioner] by [Relator] after date of
       divorce as an advance on her $509,000.. The advance on the
       $509,000 shall be defined by the amount [Relator] pays
       [Petitioner] after divorce in the contemplated amount of $4,000
       per month payable each 15th of the month,

Ex, C, P, 16-17,

       On July 25, 2013, Petitioner filed a Petition for Enforcement of

Property Division and Petition for Breach of Contract, Ex, D, P, 1„ In her

petition, Petitioner sought enforcement of the Decr ee alleging, inter alia,

that Relator had failed to comply with the Decree by failing to list the

Property for sale and failing to the pay the $4,000 monthly advance, Id at P..

2,   On December 18, 2013, the Court signed an Interim Order (Ex„ B, P, 1„)

The Interim Or der states, in relevant part, the following:

        1..
       [Petitioner's] bank account with Capital One Bank the
       following sums: $15,000 on November 12, 2013; $10,000 on
       December 15, 2013; and $10,000 on January 15, 2014      ...
              [Relator] will wire transfer or direct deposit into


                                                                    Until
       the [Property] is listed for sale, [Relator] will continue to pay
       [Petitioner] the sum of $10,000 on the 15th day of each month.

       2,    After the date the [Property] is listed for sale, [Relator]
       will wire transfer or direct deposit the sum of $6,000 per month
       on the 15th day of each month to [Petitioner].

       4.   If [Relator] fails to deposit or wire the money in the
       amounts or on the dates listed above, upon proof provided to



                                       4
       appointed to list the [Property]

Id at P. 1-2.
                                        ...
       his attorney and to the Court, a receiver will immediately be
                                         for sale,



       On September 9, 2015, Petitioner filed her Second Amended Petition

for Enforcement of Property Division and Petition for Breach of Contract

and for Enfor cement of Interim Or der on Petition for Enforcement , Ex. E, P,

1„ In this pleading, Petitioner sought to enforce the terms of the Inter im

Order by having a r eceiver appointed to handle the sale of the Property. Id

at P. 3-4.

       Relator objected to the appointment of a receiver based upon the

Interim Order , because an order enforcing the Interim Order would violate

Section 9.007 of the Texas Family Code. See Ex,. F (Relator's Response to

(Anticipated) Application for Receiver) & Ex. G. (Plea to the Jurisdiction),,

In his pleadings, Relator stated, in no uncertain terms, that the Interim Order

was unenforceable because it amended, modified and/or altered the division

of property contained in the Decree..

       On October 15, 2015, the trial court heard the Application to Appoint

a Receiver; At the hearing, Petitioner's counsel acknowledged that the

Interim Order modified the Decree, but argued that it was done by

agreement. RR. 5, Ln. 9-13. Petitioner argued, in essence, that the agreement

of the parties to modify the Decree granted the tr ial court the jur isdiction to

                                        5
enter the   Interim Order, However, under Texas law, "a party cannot confer

or waive jurisdiction by consent or agreement," Claxton v (Upper) Lake

Fork Water Control, 220 S,W,3d 537, 541 (Tex,, App,—Texarkana 2006, no

pet,,). Arguing in the alternative, Petitioner also took the position that the

orders were not substantial modifications such that they would violate the

Statute,, RR 5, Ln, 23-25; RR 11, Ln 21-22 ,

      After a short recess, to consider same, Respondent granted

Petitioner's request and entered the challenged Order appointing a receiver,,

RR 13, Ln 22-25 - RR 14, Ln 1-6. The Order states, in relevant part, as

follows:

      The Court, after hearing pleadings, evidence, and argument of
      counsel, is of the opinion that proper grounds exist for the
      immediate appointment of a receiver ,

      IT IS THEREFORE ORDERED that Eve Sullivan and Shelley
      Tillery are appointed Receiver to take charge and possession of
      the [Property ,]

      IT IS FURTHER ORDERED that Eve Sullivan or Shelley
      Tillery are authorized to manage, control, and dispose of the
      property as they see fit in their sole discretion in accordance
      with the listing agreement,

      IT IS FURTHER ORDERED that the parties fully cooperate
      with [sic] Receivers, including, without limitation, signing a
      real estate listing agreement that lists the [Property] initially at
      $L399m[J

Ex, A, P ,l,



                                       6
                                ARGUMENT

      Mandamus relief is available where (1) a court abuses its discretion

and (2) there is no "adequate r emedy by appeal. " In re Prudential Ins Co v..

Am.,, 148 S.W,3d 124, 135-36 & n.47 (Tex.. 2004) (citing Walker v Packer ,

827 S.W,2d 833, 840 (Tex, 1992)). A trial court clearly abuses its discretion

when it reaches a decision so arbitrary and unreasonable as to amount to a

clear and prejudicial error of law or if it clearly fails to correctly analyze or

apply the law. See In re Olshan Found Repair Co , 328 S.W 3d 883, 888

(Tex. 2010); see also Walker, 827 S.W,2d at 839.

   I The Trial Court Erred inAppointing a Receiver, Because:

      A.     The Trial Court Lacked Authority to Enter the Order
             Appointing a Receiver (but abused its discretion if it had
             the power to rule).

      A trial court commits fundamental error when it enters an order that is

beyond the trial court's jurisdiction. See Cox v Johnson, 638 S ,W,2d 867,

868 (Tex. 1982) (per curiam); Texas Indus Traffic League v Railroad

Comm'n, 63.3 S,W.2d 821, 82.3 (Tex 1982) (per curiam), A plea to the

jurisdiction is a dilatory plea by which a party challenges the court's

authority to determine the subject matter of the action. Harris County v

Sykes, 136 S.W„3d 635, 638 (Tex.2004); Bland Independent School District

v. Blue, 34 S W..3d 547, 554 (Tex,, 2000), The relief seeking party bears the



                                       7
burden of alleging facts that affirmatively show the trial court has subject

matter jurisdiction. Tex. Ass'n       of Bus     v Tex Air Control Bd, 852 S.,W,.2d

440, 446 (Tex 1993)., Because the question of subject matter jur isdiction is a

legal question, the trial court's ruling on a plea to the jurisdiction is reviewed

under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964

S.,W.,2d 922, 928 (Tex. 1998),

        A court that renders the decree of divorce r etains the power to enforce

the property division, See Tex., Fam,. Code Ann. § 9,002 (Vernon 2006).

Pursuant to the Family Code, a court may render further orders to                   enforce
the division of property made in the decree of divorce to assist in the

implementation of or to clarify the prior order . See id § 9. 006(a) (emphasis

added),, However, a court may not amend, modify, alter, or change the

division of property made or approved in the decree of divorce. See id §

9.007(a),

       Her e, the trial court relied upon the Interim Order, when it entered the

Order ,1 Under the Decree, Relator was only required to pay Petitioner

$4,000 a month, Under the Inter im Order , Relator was required to make one




1
  The trial court's reliance on the Interim Order is also apparent fr om the lack of evidence
to substantiate the appointment of a receiver ,as Texas law requires . See Harr ington v..
Schuble, 608 S.,W.,2d 25.3, 256 (Tex., Civ.. App. 1980).,

                                             8
payment for $15,000 and a payment of $10,000, or pay $6,000 a month,

depending on whether the property was listed for sale.

      This 50% to 250% increase in the amount due monthly to satisfy

Relator's debt obligations "amends, alters or changes the actual, substantive

property division made or approved in the divorce decree." Tex, Fam, Code

Ann § 9..007, Thus, "the order is beyond the trial court's power and is

unenforceable." See Everett v Everett, 421 S.,W,3d 918, 921 (Tex, App.,—El

Paso 2014, no pet); see also In re R F G , 282 S W.3d 722, 728 (Tex.,

App,—Dallas 2009, no pet ) (holding that a clarifying order amending a debt

obligation violates the statute) The increased monthly payments mean that

the Petitioner will receive more in value than the $509,000 debt obligation

set forth in the Decree based on the time value of money,, See O'Carolan v

Hopper, 71 S,W,3d 529, 534 (Tex. App.—Austin 2002, no pet. hist,,)

("Furthermore, the time value of money lessens the worth of support payable

over twenty-four months as compared to a lump sum realized from a sale of

the property ,"); see also Carl J Battaglia, MD, PA v Alexander , 177

S,W.3d 893, 907 (Tex, 2005),




                                     9
       B.     Petitioner Failed to Present the Necessary Evidence to
              Support the Trial Court's Decision to Grant the Petitioner's
              Request for an Appointment of a Receiver.

       Without waiving the argument that the Court lacked author ity to enter

the order to appoint a Receiver ,Relator argues that even if the Interim Or der

is enforceable, Petitioner failed to prove the predicate facts for the

Respondent to appoint a receiver , The Interim Order provides that as the

factual basis for the Application to Appoint a Receiver (pursuant to the

Interim Order) Petitioner must provide proof to Relator's counsel and to the

Court that Relator failed to deposit or wire the money (before a receiver may

be appointed),. Ex. C, P . 2,

      At the hearing on the request to appoint the Receiver, the only

evidence that was before the trial court was regarding attorney's fees.. RR

16, Ln. 23-25, The test for abuse of discr etion is not whether , in the opinion

of the reviewing court, the facts present an appropriate case for the trial

court's action. Downer v Aquamarine Operators, Inc , 701 S,W„2d 238,

241-42 (Tex, 1985), Rather, it is a question of whether the court acted

without reference to any guiding rules and principles, Craddock v Sunshine

Bus Lines, 134 Tex,, 388, 133 S.W.2d 124, 126 (Tex.Comm.App — 1939,

opinion adopted), Another way of stating the test is whether the act was

arbitrary or unreasonable, Smithson v Cessna Aircraft Co , 665 S ,W.2d 439,



                                      10
443 (Tex . 1984), The lack of proof shows an abuse of discretion in the trial
                                     '




court's order, because the trial court actions could not have been guided by

the evidence here, and thus were arbitrary and unreasonable

II.There IsNo Adequate Remedy By Appeal

       In determining whether appeal is an adequate remedy, courts consider

whether the benefits of mandamus relief outweigh the detriments,, In re

Jacobs, 300 S,W,3d 35, 40 (Tex, App —Houston [14th Dist ] 2009, orig,

proceeding), Appeal is not an adequate remedy when the appellate court

would not be able to cure the trial court's error In re Weekley Homes, LP ,

295 S.W,3d 309, 322 (Tex, 2009) (orig, proceeding). As this balance

depends heavily on circumstances, the analysis is guided by principles rather

than simple rules that treat cases as categories , In re McAllen Med Ctr , Inc.,

275 S,,W,3d 458, 464 (Tex,2008) (orig, proceeding). Typically, mandamus

relief is appropriate when a trial court issues an order after its plenary power

has expired,, In re Brookshire Grocery Co., 250 S.W,3d 66, 68 (Tex, 2008)

(orig,, proceeding); see In re Sw. Bell Tel Co , ,35 S.W„3d 602, 605 (Tex.

2000) (reasoning that mandamus is proper if a trial court issues an order

beyond its jurisdiction) ,

       The Fort Worth Court of Appeals recently held that mandamus was

proper when a court entered an order that violated Section 9,007 of the



                                         11
Texas Family Code See In re WL W , 370 S.W,3d 799, 807 (Tex. App —

Foit Worth 2012, mandamus denied). A trial court lacks subject-matter

jurisdiction to enter an order that divides community property in a manner

different than what is provided for in a final decree, Id Given that the trial

court had no jurisdiction to enforce the Interim Order, there is no adequate

remedy by appeal for Relator, Moreover, Relator may lose any interest he

has in the Property by the time a final, appealable judgment is entered in this

case. Respondent has ordered that the Property be sold at a fixed price,

which may be well below its market value, and Relator stands to lose any

money that he might have otherwise been entitled to


                                  PRAYER

      Respondent did not have the authority to enter the complained of

Order. However, in the unlikely event that the trial court did, the Court

abused its' discretion because Petitioner failed to present the evidence

required to obtain her requested relief For the foregoing reasons, this Court

should issue a writ commanding Respondent to vacate the Or der ,




                                      12
                                Respectfully submitted,
                                LAW OFFICES OF FRANK SHOR

                                /s/ Frank Shor _
                                FRANK SHOR
                                State Bar No,. 18294700
                                 1620 E. Belt Line Road
                                Canollton, Texas 75006
                                (972) 242-8887
                                (972) 446-7976 FAX
                                FiankShorLawFiim@gmail com

                                Attorney for Relator


                             CERTIFICATION

      Icertify that Ihave reviewed all of the factual allegations in the
foregoing petition and conclude that every factual statement in the petition is
supported by competent evidence, which is included herein as part of the
appendix and the reporter's record,

                                /s/ Frank Shor_
                                FRANK SHOR

                   CERTIFICATE OF COMPLIANCE

      Icertify that the foregoing document contains 2622 words total, and
was prepared in Microsoft WORD using 14-point typeface for body text and
12-point for footnotes , In making this certificate of compliance, Iam r elying
on the WORD count pr ovided by the softwar e used to pr epar e the document,,

                                /s/ Frank Shor _
                                FRANK SHOR


                      CERTIFICATE OF SERVICE

     Icertify that a true and correct copy of the for egoing Petition for Wr it
of Mandamus was served via first class mail on Respondent and via


                                      13
electronic service on the Real Party in Interest on the 3r d day of November ,
2015, upon:

      Respondent:               Honorable Susan Rankin
                                Judge of 254th Judicial District Court of
                                Dallas County, Texas
                                600 Commerce Street
                                Dallas, Texas 75202
                                (214) 653-6741

      Real Party in Interest:   Mary M. McCafferty

                                Attorney for Mary Micheline McCafferty:
                                Reagan K. Vernon
                                State Bar No., 24081192
                                Koons Fuller, P.C
                                1717 McKinney Avenue,Suite 1500
                                Dallas, Texas 75202
                                (214) 871-2727
                                Reagan@koonsfuller.com



                                Is/Frank Shor
                                FRANK SHOR




                                     14
                                APPENDIX

Exhibit A: Order on Motion for Appointment of Receiver

Exhibit B: Interim Order on Petition for Enforcement

Exhibit C: Agr eed Final Decr ee of Divorce

Exhibit D: Petition for Enfor cement of Pr operty Division and Petition for
           Breach of Contract

Exhibit E: Second Amended Petition for Enforcement of Property
           Division and Petition for Br each of Contr act and for
           Enforcement of Interim Order on Petition for Enforcement

Exhibit F: Relator 's Response to (Anticipated) Application for Receiver

Exhibit G: Plea to the Jurisdiction

Exhibit H: Reporter's Record




                                      15
EXHIBIT A
                                      CAUSE NO. 08-05932

MARY M. MCCAFFERTY,                                          INTHE DISTRICT COURT
ALANA MCCAFFERTY, AND
AMANDA MCCAFFERTY

V.                                                           254th JUDICIAL DISTRICT
JOHN JEFFREY MCCAFFERTY                                      DALLAS COUNTY, TEXAS

               ORDER ON MOTION FOR APPOINTMENT OF RECEIVER

       On the date indicated below, the Court considered the Motion fox Appointment of Receiver
of Mary M,, McCafferty for the immediate appointment of 'a receiver to take charge and possession
of property located at 14327 Hughes Lane, Dallas, Texas 75254.. The Court, after hearing
pleadings, evidence, and ar gument of counsel, is of the opinion that proper gr ounds exist for the
immediate appointment of a receiver .

        The Court finds that Eve Sullivangad Shelley T illery with Allie Beth Allman are qualified
to serve as Receivers and are registered voters in Texas ,

       IT IS THEREFORE ORDERED that Eve Sullivan and Shelley Tillery are appointed
Receiver to take char ge and possession of the pr operty and all impr ovements locatedthereon at lot
40, block 1/8 175, Williamsburg at Preston, an Addition to the City of Dallas according to the plat
thereof, recorded in Volume 78090, Page 1397, Map records of Dallas County, Texas, and more
commonly known as 14327 Hughes Lane, Dallas, Texas 75254. The necessity of a bond by
Receiver is waived.                                 ÿ                                ÿ  .      rs ij
                                                    * jSlo
                                                       t                                               /

        (ZUfaWv       JfM w ft*-
      IT IS FURTHER, ORDERED that Er4 Sullivan
                                                             fta
                                                                 Shelley Tillery are authorized to
manage, control, and dispose of the property as they see fit intheir sole discretionÿ; ÿcc<a

        IT IS FURTHER ORDEREu that the parties fully cooperate with Receivers, including,
without limitation, signing/anyTeal estate'lisiittg agreement, showing property to prospective
buyer s, and vacating prepfises, if necessary in the opinion of Receiver s..

       Reecivcrÿnray enforce tins ordcr by contempt if tho parties do not cooperated'

             3D on October         ,2015..


                                                                           -
                                              Judge Presiding


ORDER ONMOTIONFOR APPOINTMENT OF RECEIVER                                                   PAGE 1
EXHIBIT B
                           (                                                [       ÿ




11/25/2013 16:13        3724-*37376                        AW OFFICE            "                       PAGE 03/06




                                               NQi 08-05932-R

     MARY M.MCCAFFERTY,                           §        INTHE DISTRICT COURT
     ALANA MCCAFFJERTY ana                        §
     AMANDA MCCAFFERTY                            §
     V,                                           §        254TH JUDICIAL DISTRICT
                                                  §
     JOHN JEFFREY MCCAFFERTY                      §        DALLAS COUNTY, TEXAS

                      INTERIM ORDER ON PETITION FOR ENFORCEMENT


             On November 1 1,2013, the Court heard this matter end finds as fellows:
            Mary M, McCafferty appeared In person and through attorney of record, Holly R, Monk,

             John Jeffrey MoCafferty appeared in person and through attorney of record, Frank Shor.

     The parties agree as follows, and it is ordered:

            1. John Jeffrey MoCnffbrty will wire transfer or direct deposit Into Maty M,

                McCafferfy's bank account with Capital One Bank the following sums: $15,000,00

                on November 12, 2013; $10,000.00 on December 15, 2013; and $10,000.00 on

                January 15, 2014. John Jeffrey McCafferty anticipates that the home at 14327

                Hughes Latte, Dallas, Texas, will be listed for sale by February 1, 2014, Until the

                house is listed for sale, John Jeffrey McCafferty will continue to pay Mary M.
               McCafferfy the sum of $10,000.00 on the 15th day of each month,

           2. After the date the house is listed for sale, John Jeffery McCafferty wifi wire transfer
               or direct deposit the sum of $6,000.00 per month on the    15fh day of each month to
               Maty M. McCaf'feity. The account number was provided to John Jeffrey McCafferty

               in a separate document and will be used by him only for the purpose of the transfer of
               the money and no other purpose of any kind. John Jeffrey McCafferty will not share
              or publish the account number to anyone other than Bank personnel and solely for the


   INTERIM ORDER - Pftg* X
    11/25/2813 16!13      972<r*«7976                        LAW OFFICE
                                                                                C                        PA6E 04/06
t




                   pur pose of the transfer of the money, John Jeffrey McCafferty will pay any and all

                   costs associated with the transfer of the money.

                3. If'the I5tilday of any month Ms on a Saturday or a Sunday, John Jeffrey McCaffarty

                   will wire or direct deposit the money into Mary M, McCafferty*$ account on the
                   precedingFriday
               4, If'John Jeffrey McCafferty fails to deposit or wire the money in the amounts or on the

                   dates listed above, upon proof provided to his attorney and to the Court, a receiver
                   will immediately be appointed to list the house at 14327 Hughes Lane, Dallas, Texas,

                   for sale, No thither court hearings will be necessary to appoint tire receiver. Provided

                   that evidence has been provided to John Jeffrey MoCafferty's counsel that John

                   Jeffrey MeCaffeity has felled to deposit or wire the money in the amounts and/or on

                  the dates listed hereinabove, then, in that events Mwy McCafferty's attorney will be
                  fully authorized by this Order to present an Order Appointing Receiver to the Court

                  for signature without farther notice to or agreement by John Jeffrey MeCaffeity or by1
                  counsel for John Jeffrey McCafferty.

               5. All amounts .received by Maty McCafferty undct this Interim Order are to be credited

                  against the obligations owed by John JefferyMcCafiferty under the Decree of Divorce

                  dated July 17,200*),
        Da**
                                  M
                                                 ÿ2013




                                                           Presiding Judge oftlie254,h




       WIj&RIM ORDER     Page 2
11/25/2013   1&;13    9724*679 78      LAW OFF ICE
                                                         c                  PAGE   05/ 08




                                    BAILEY & GALYEN
                                    4131 N. Central Expressway, Suite 860
                                    Dallas, TX 75204
                                    let (214) 252-9099 r\
                                    Fax: (iff 520-9241




                                                      10511583
                                                     Petitioner

                                    LAW" OFFICES OF FRANK SHOE
                                    1620 East Belt Line Road
                                    Catrollton, Texas 75006
                                    Tel: (972) 242-8887
                                    Fax: (972) 446-7976



                                         Frank Shor
                                         State Barm 18294700
                                         Attorney for Respondent

     AGRBED:




     MaÿWMcCafferty
    Petrager




                     iafferty
                                                                  /

11/25/2313 IB: 13       S724'ho?97S             1 m OFFICE                    PAGE 35/05




                                      BAILEY &GALYEN
                                      4)31 N- Contra) Expressway, Suite 860
                                      Dallas, TX 75204
                                      Teh (214)25ÿ9099
                                      Fax:(214)520 0941



                                            Holly R, Monk
                                            State Bar No. 505 If 583
                                            Attorney for Petitioner


                                      LAW OFFICES OF FRANK SHOK
                                      1620 East Belt Line Road
                                      Carrollton, Texas 75006
                                      Teh (972) 242ÿ7
                                      Fax:(972)ÿj5W976



    AGREED:
                                      By:
                                               Prank $hor
                                                             --
                                               State Bar No. 18294700
                                               Attorney for Respondent




                *   ......
                      .....
                       ........
                         -fflWW

    John Jeffcry MeCqfferfy
                                  ÿ




    Respondent




   INTERIM ORDER Page 3

                                                                                           i
EXHIBIT C
                                        CAUSE NO.. 08 05932-R

 IN THE MATTER OF                                  §       INTHE DISTRICT COURT
 THE MARRIAGE OF                                   §
                                                   §
JOHN JEFFREY McCAFFERTY                            §
AND                                                §       254th JUDICIAL DISTRICT
MARY MICHELINE McCAFFERTY                          §
                                                  .§
AND IN THE INTEREST OF                             §
ALANA NICOLE McCAFFERTY                            §
MINOR CHILD                                        §       DALLAS COUNTY, TEXAS

                             AGREED FINAL DECREE OF DIVORCE

         On                   2009 the Court heard this case,.

Appearances

        Petitioner, JOHN JEFFREY McCAFFERTY, appealed in person and through attorney of
record, RANDY T ESSENBURG, and announced ready for trial .

         Respondentÿ MARY MICHELINE McCAFFERTY, has made a general appear ance and has
agr eed to the terms of this judgment to the extent permitted by law, as evidenced by the signatures of
Respondent appearing below,, The Court finds that MARY MICHELINE McCAFFERTY has had
throughout most of the divor ce process two attorney's representing her, Blaise Goimely and David
Carlock The Court further finds Respondent's attorneys of recor dhave withdr awn and Respondent
is pro se nevertheless Respondent has had advise of counsel .

Record

        The record of testimony was duly r eported by the court reporter- for the District Court.

Jur isdiction andDomicile

        The Court finds that the pleadings of Petitioner- are in due form andcontain all the allegations,
 information, and prerequisites required by law The Court, after receiving evidence, finds that it has
jurisdiction of this case and of all the parties and that at least sixty days have elapsed since the date the
suit was filed The Court finds that, at the time this suit was filed, Petitioner hadbeen a domiciliary of
 Iexas for the preceding six-month period and a resident of the county in which this suit was filed for
the preceding ninety-day period . All persons entitled to citation were properly cited

Jury


FINAL DECREE OF DIVORCE - Page 1
                                                                                 ')




)
            A jury was waived, and all questions offact and of law were submitted to the Court


    Agreement ofParties

            The Court finds that the parties have enter ed into a written agreement as to conservatorship of
    the child, the property and debt division to the extent permitted by law, the parties stipulate the
    agreement is enforceable as a contract

    Divorce

            IT IS ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY, Petitioner, and
    MARY MICHELENE McCAFFERTY, Respondent, ar e divorced and that the marriage between them
    is dissolved on the ground of insupportability..

    Child of the Marriage

            The Court finds that Petitioner and Respondent are the parents of the following children over
    18 years of age:

    Name: AMANDA LAUREN McCAFFERTY
    Sex: Female
)   Birth date: December 9, 1987

    Name: AMBER CARINA McCAFFERTY
    Sex: Female
    Birth date: December 9, 1987

            The Court finds that Petitioner and Respondent are the par ents of the following child over 3 8
    year s of age but still inHigh School:

    Name: ALANA NICOLE McCAFFERTY
    Sex: Female
    Birth date: May 9, 1990

           The Court finds no other children of the marriage are expected..

                                              Parenting Plan


    Conservatorship

           The Court, having consideredthe circumstances of the parents and of the child, finds that the


    FINAL DECREE OF DIVORCE - Page 2

J
following orders are in the best interest of the child.

     IT IS ORDERED that JOHN JEFFREY McCAFFERTY and MARY MICHELTNE
McCAFFERTY are appointed parent joint managing conservators of the following child: ALANA
NICOLE McCAFFERTY,

        IT IS ORDERED that, at all times, JOHN JEFFREY McCAFFERTY and MARY
MICHELINE McCAFFERTY, as parent joint managing conservators, shall eachhave the following
rights:

       1.     the right to receive information from the other parent concerning the health,
education, and welfare of the child;

       2      the right to confer with the other parent to the extent possible before making a
decision concerning the health, education, and welfar e of the child;

         3.     the right of access to medical, dental, psychological, and educational recor ds of the
child;

         4.     the right to consult with a physician, dentist, or psychologist of the child;

       5.      the light to consult with school officials concerning the child's welfare and
educational status, including school activities;

         6.     the right to attend school activities;

         7,,    the light to be designated on the child's records as a per son to be notified in case of
an emergency;

       8       the right to consent to medical, dental, and surgical treatment during an emergency
involving an immediate danger to the health and safety of the child; and

       9        the right to manage the estate of the child to the extent the estate has been created by
the parent or the par ent's family,

        IT IS ORDERED that, at all times, JOHN .JEFFREY McCAFFERTY and MARY
MICHELINEMcCAFFERIY, as parentjoint managing conservators, shall each have the following
duties:

       1      the duty to inform the other parent in a timely maimer of significant information
concerning the health, education, and welfare of the child; and

         2.     the duty to inform the other par ent if the par ent r esides with for at least thirty days,


FINAL DECREE OF DIVORCE - Page 3
marries, or intends to marry a person who the parent knows is registered as a sex offender under
chapter 62 of the Code of Criminal Procedure (as added by chapter 668, Acts ofthe 75th Legislature,
Regular Session, 1997) or is currently charged with an offense for which on conviction the person
would be required to register under that chapter1 IT IS ORDERED that this information shall be
tendered in the form of a noticemade as soon as practicable, but not later1thanthe fortieth day after
the date the parent begins to reside with the person or on the tenth day after the date the marriage
occurs, as appropriate.. ITIS ORDERED that the notice must include a description of the offense that
is the basis of the person's r equir ement to r egister as asex offender or of the offense with which the
person is charged . WARMING: A PERSON COMMITS AN OFFENSE PUNISHABLE AS A
CLASS C MISDEMEANOR IFTHE PERSON FAILS TO PROVIDE THIS NOTICE

        IT IS ORDERED that, during their respective periods of possession, JOHN JEFFREY
McCAFFERTY and MARY MICHELME McCAFFERTY, as parent joint managing conservators,
shall each have the following rights and duties:

        1.,     the duty of cane, control, protection, and reasonable discipline ofthe child;

        2..    the duty to support the child, including providing the child with clothing, food,
shelter, and medical and dental care not involving an invasive procedure;

        3..    the right to consent for the child to medicaland dental care not involving an invasive
procedure;

       4       the independent right to consent for' the child to medical, dental, and surgical
treatment during an emergency involving immediate danger to the health and safety of the child; and

       5.      the right to direct the moral and religious training of the child.

       IIIS ORDERED that MARY MICHELINE McCAFFERTY, as a parent joint managing
conservator, shall have the following rights and duty:

       1.     the exclusive right to establish the primary r esidence of the child within Dallas and
contiguous counties;

       2..    the independent right to consent to medical, dental, and surgical treatment involving
invasive procedures and to consent to psychiatric and psychological treatment ofthe child;

        3      the exclusive right to receive and give receipt forpeiiodic payments for the support
of the child and to hold or disburse these funds for the benefit of the child;

       4    the independent right to represent the child in legal action and to make other1
decisions substantial legal significance concerning the child;
         of



FINAL DECREE OF DIVORCE Page 4
       5.     the right, subject to the agreement of' the other parent conservator, to consent to
marriage and to enlistment in the aimed forces of the United States;

        6       the independent right to make decisions concerning the child's education;

        7.     the independent right to the services and earnings of the child, except as providedby
section 264 01 11 of the Texas Family Code;

        8        except when a guardian of the child's estate or a guardian or attorney ad litem has
been appointed for the child, the right, subject to the agreement of the other parent conservator, to
act as an agent of the child in r elation to the child's estate if the child's action is required by a state,
the U S ., or a foreign government;

    9    the right to manage the estate of the child to the extent the estate has beencreated by
MARY MICHELINE McCAFFERIY.

       3T IS ORDERED that JOHN .JEFFREY McCAFFERTY, as a parent joint managing
conservator, shall have the following rights and duty:

        1       the right to possession of the child as set forth in this order;

       2.     the independent right to consent to medical, dental, and surgical tr eatment involving
invasive procedures and to consent to psychiatric and psychological treatment of the child;

       3..      the independent right to represent the child inlegal action andto makeother decisions
of substantial legal significance concerning the child;

       4.     the right, subject to the agreement of the other parent conservator, to consent to
marriage and to enlistment in the armed forces of the United States;

        5       the independent right to make decisions concerning the child's education;

      6.,     the right to the services and earnings of the child, except as provided by section
264.0111 of the Texas Family Code;

        7         except when a guardian of the child's estate or a guar dian or attorney ad litem has
been appointed for the child, the right, subject to the agreement of the other parent conservator, to
act as an agent of the child in relation to the child's estate ifthe child's action is required by a state,
the U. S. ,or a foreign government;

       XI IS ORDERED that Petitioner and Respondent shall minimize disruption of the child's
education, daily routine, and association with friends.



FINAL DECREE OF DIVORCE - Page 5
       It has been represented to the Court that there has been no pattern of child neglect ox family
violence by any party to this case within two (2) years pr eceding the filing of this case or during the
pendency of this case


Possession Order

        The Court finds the child, AJLANA NICOLE McCAFFERTY, the subject of this suit, is
nineteen years old and graduating from High School by May 2009 IT IS ORDERED JOHN
JEFFREY McCAFFERTY shall have possession of the child at times mutually agreed to by Father'
and child.

Child Support

       IT IS ORDERED that JOHN JEFFREY McCAFFERTY is obligated to pay and shall pay to
MARY MICHELINEMcCAFFERTY child support of $ 1500.00 per month, with the first payment
being due and payable on May 1, 2009 and a like payment being due and payable on the 1st day of
each month thereafter untilthe first month following the date of the earliest occurrence o f one of the
events specified below:

        1       the child r eaches the age of eighteen years, provided that, if the child is fully enrolled
inan accredited secondary school ina program leading toward a high school diploma or enrolled in
courses for joint high school and junior college credit pursuant to section 130.008 of the Texas
Education Code, the periodic child-support payments shall continue to be due and paiduntilthe end
of the month in which the child gr aduates from high school;

        2        the child marries;

       3.        the child dies;

       4.        the child's disabilities are otherwise removed for general purposes; [or]

       5         MARY MICHELINEMcCAFFERTY and JOHN.JEFFREY McCAFFERTY remarry
each other; or

       6         further order modifying this child support

      IT IS ORDERED that all payments shall be paid directly to MARY MICHELINE
McCAFFERTY for the support of the child,. The Court finds good cause exists not to issue an
employer 's order to withhold

       IT IS ORDERED that medical support shall be provided for the child as follows:



FINAL DECREE OF DIVORCE - Page 6
                                                                                       )

    I   \




\
'       Health Care

                1       IT IS ORDERED that.JOHN JEFFREY McCAFFERIY is ORDERED to provide
        medical support andhealthinsurance coverage for the childthe subject of this suit as additional child
        support for as long as the Court may order JOHN JEFFREY McCAFFERTY to provide support for
        the child under sections 154 001 and 154 .002 of the Texas Family Code..

                Beginning on the day JOHN JEFFREY McCAFFERIY's actual or potential obligation to
        support a childunder sections 154.001 and 154.002 of'theFamily Code terminates, ITIS ORDERED
        that JOHN .JEFFREY McCAFFERTY is discharged from the obligations set forth in this medical
        support or der with respect to that child, except for any failure by a parent to fully comply with those
        obligations before that date. IT IS FURTHER ORDERED that JOHN JEFFREY McCAFFERTY
        shall provide medical support and health insurance coverage for each child as set out in this order'

                2..    Definitions -

               "Health Insurance" means insurance coverage that provides basic healtb-care services,
        including usual physician services, office visits, hospitalization, and laboratory, X-ray, and
        emergency services, that maybeprovided through a health maintenance organization or other private
        or public organization, other than medical assistance under chapter' 32 of the Texas Human
        Resources Code

               "Reasonable cost" means the cost of a health insurance premium that does not exceed 10
j       percent of the responsible patent's net income in a month..

               "Reasonable and necessary health-care expenses notpaid by insuranceand incurred by or on
        behalfof a child" include, without limitation, any copayments for office visits or prescription drugs,
        mental health-care services, dental, eye care, ophthalmological, orthodontic, and psychological
        charges These reasonable and necessary health-care expenses do not include expenses for travel to
        and from the health-care provider or for nonprescription medication,

               "Furnish" means:

               a       to hand deliver the document by a person eighteen years or older either to the
                       recipient or to a person who is eighteen years or older and permanently r esides with
                       the recipient;

               b       to deliver the document to the r ecipient by certified mail, return r eceipt requested, to
                       the recipient's last known mailing or r esidence address; or

               c       to deliver the document to the recipient at the recipient's last known mailing or
                       residence address using any person or entity whose principal business is that or a
                       courier or deliverer' ofpapers or documents either within or outside the United States


        FINAL DECREE OF DIVORCE - Page 7                                                                            I
                                                                                                                    !
          3    Obligations of JOHN .JEFFREY McCAFFERTY- .JOHN JEFFREY McCAPFERTY
    is ORDERED to include and maintain the child the subject of this suit in JOHN JEFFREY
    McCAFFERTY's health insurance available through the insurance company through JOHN
    .JEFFREY McCAFFERIY's employer no later than the date the Court signs this order..

          4      Obligations of JOHN JEFFREY                  McCAFFERTY         -   JOHN JEFFREY
                 McCAFFERTY is ORDERED            -
          a,     to furnish to each conservator of the child andthe child support registry the following
                 information no later than the thirtieth day after the date the notice of the rendition of
                 this order is received:

                I,       the Social Security number of the parent providing insurance;

                ii,      the name and address of the employer' of the parent providing insurance;

                iii     whether the employer is self- insured or has health insurance available;

                iv      proof that healthinsurance has been pr ovided for each child; and

                v       the name of the health insurance carrier, the number of the policy, a copy of
                        the policy and schedule of benefits, a health insurance membership card,
                        claim forms, and any other information necessary to submit a claim or, if the
                        employer is self-insured, a copy of the schedule of'benefits, a membership
                        card, claim forms, and any other information necessary to submit a claim;

          b.    to furnish to each conservator of the child a copy of any renewals or changes to the
                health insurance policy covering a child, or any additional information regarding
                health insurance coverage of the child, including any change in the actual cost of the
                healthinsurance for the child, nolater than the fifteenth day after the paityproviding
                the health insurance receives or is provided with the renewal, change, or additional
                information;

          c     to furnish each conservator of the child and the child support registry with all
                documentation accessible to JOHN JEFFREY McCAFFERXY of any termination
                or lapse of the health insurance coverage of a child no later than the fifteenth day
                after the date of the termination or lapse;

          d.    after termination or lapse of health insurance coverage, to furnish each conservator
                of the childandthe child supportregistiy with all documentation accessible to JOHN
                JEFFREY McCAFFERTY of the availability of additional health insurance for the
                child no later than the fifteenth day after the date the insurance becomes available;



    FINAL DECREE OF DIVORCE - Page 8

J
            e       after a termination or lapse of Health insurance coveiage, to furnish each conservator
                    of the child and the child support registry with all documentationaccessible to JOHN
                    JEFFREY McCAFFERTYof the availability of enrollment of the child ina medical
                    assistance program under chapter 32 of the Texas HumanResources Code 01 a state
                    childhealth planunder chapter 62 of the Texas Healthand Safety Code, no later than
                    the fifteenth day after the date the enr ollment in the program becomes available;

            f1      to enr oll the child at the next available enrollment period in a health insurance plan
                    that is available at reasonable cost after the previous health insurance has been
                    terminated or has lapsed; and

            g       to enroll the child in a medical assistance progr am under chapter 32 of the Texas
                    Human Resources Code or a state child health plan under chapter 62 of the Texas
                    Health and Safety Code ifthe child are eligible for enrollment in the program and no
                    healthinsurance plan is available at reasonable cost

            5 ..    SecondaryCoverage - IT IS ORDERED that nothing inthis order shall prevent either
    party from providing secondary health insurance coveiage for the child at that party's sole cost and
    expense,. IT IS FORT HER ORDERED that ifa party provides secondary healthinsurance coverage
    for the child, bothparties shall cooperate fully with regard to the handling and filing of claims with
    the insurance carrier providing the coverage in order to maximize the benefits available to the child
    and to ensure that the party who pays for health-care expenses for the child is reimbursed for the
    payment from both carriers to the fullest extent possible,.

7
            6.      Compliance with Insurance Company Requirements - Each party is ORDERED to
    conform to all r equir ements imposed by the terms and conditions of the policy of health insurance
    covering the child in order to assur e maximum reimbursement or direct payment by the insurance
    company of the incurredhealth-care expense, including but not limited to r equirements for advance
    notice to carrier, second opinions, and the like Each party is ORDERED to attempt to use
    "preferredprovideis", or services within the healthmaintenance organization, ifapplicable; however,
    this provision shall not apply if emergency care is required. Disallowance of the bill by a health
    insurer shall not excuse the obligation of either party to make payment, however, if a bill is
    disallowed or the benefit reduced because of the failure of a party to follow procedures or
    requirements of the carrier ,IT IS ORDERED that the party failing to follow the carrier 's procedur es
    or requirements shall be wholly r esponsible for the incr eased portion of that bill

           IIIS FURIHER ORDERED that no surgical procedure, other than in an emergency or one
    covered by insurance, shallbe performed on the child unless the parent consenting to surgery has first
    consultedwith at least two medicaldoctors, both of whom state an opinion that the surgery is medically
    necessary IT IS FURTHER ORDERED that a parent who fails to obtain the required medical
    opinions before consent to surgery on the child shall be wholly responsible for all medical and
    hospital expense incurred in connection therewith.



    FINAL DECREE OF DIVORCE - Page 9

)
             7       Claims Except as providedinthis paragraph, the party who is not carrying the health
                             ••


    insurance policy covering the child is ORDERED to furnish to the party carrying the policy, within
    fifteen days of receiving them, any and all forms, receipts, bills, and statements reflecting the health¬
    care expenses the party not carrying the policy incurs on behalfof the child Inaccordance with article
    3 .51-13 of the Texas Insurance Code, IT IS ORDERED that the party who is not carrying the health
    insurance policy covering the child may, at that party's option, file directly with the insurance carrier
    with whom coverage is provided for the benefit of the child any claims for health-care expenses,
    including but not limited to medical, hospitalization, and dental costs, and receive payments directly
    from the insurance company..

            The party who is carrying the health insurance policy covering the child is ORDERED to
    submit all forms required by the insurance company for payment or1 reimbursement of health-care
    expenses incurred by either party on behalf of a child to the insurance carrier within fifteen days of that
    patty's receiving any form, receipt, bill, or statement reflecting the expenses

            8.       Constructive Iiust for Payments Received - IT IS ORDERED that any insurance
    payments received by the party from the health insurance carrier as r eimbursement for health-care
    expenses incurred by or on behalf of a child shall belong to the party who incurred and paid those
    expenses.. IT' IS FURTHER ORDERED that the party receiving the insurance payments is designated
    a constructive trustee to receive any insurance checks or payments for health-care expenses incurred
    and paidby the other party, and the party carrying the policy shall endorse and forward the checks or
    payments, along with any explanation of benefits r eceived, to the other party within thr ee days of
    receiving them,

            9     Health-Care Expenses Not Paid by Insurance - Subject to the provisions in paragraph
    6 immediately above, IT IS ORDERED that, if health-care expenses are incurred for' a child, JOHN
    .JEFFREY McCAFFERTY shall pay all reasonable and necessary health-care expenses not paid by
    insurance andincurred by or on behalf of the child in the following portions:

                    a.      If the health-care expenses are incurred by using a HMO or PPO plan, in an
                            emergency, or with the written agreement of the other party, MARY
                            MICHELINE McCAFFERTY is ORDERED to pay 50 percent and JOHN
                            JEFFREY McCAFFERTY is ORDERED to pay 50 percent.

                    b.      Except inan emergency or if the other parent agreed inwriting, if a party incurs
                            health-careexpenses forthe childby usingtheservicesof health- careproviders
                            not employed by the HMO or approved fay the PPO, the party incurring the
                            services is ORDERED to pay 100 percent and the other party is ORDERED to
                            pay 0 percent

                   c„       If either parent pr ovides health insurance for the child thr ough an HMO or a
                            PPO that does not provide coverage for the child where the child resides or
                            have network providers in the area where the child resides, MARY


    FINAL DECREE OF DIVORCE - Page 10

)
                            MICHELINE McCAFFERTY is ORDERED to pay 50 percent and JOHN
                            .JEFFREY McCAFFERTY is ORDERED to pay 50 percent.

                    d       If' the child is enrolled in a health-caie plan that is not an HMO or a PPO,
                            MARY MICHELINE McCAFFERTY is ORDERED to pay 50 percent and
                            JOHN JEFFREY McCAFFERTY is ORDERED to pay 50 percent,,

                    e.      If the child was enrolled in a medical assistance program under1chapter 32 of
                            the T exas Human Resources Code or a state childhealth plan under chapter 62
                            of the Texas Health and Safety Code and is no longer eligible for coverage in
                            that plan or program, MARY MICHELINEMcCAFFERTY is ORDERED to
                            pay 50 percent and JOHN JEFFREY McCAFFERTY is ORDERED to pay 50
                            percent until health insurance is provided for the child or the child is again
                            eligible for enrollment in a medicalassistance program under chapter' 32 of die
                            Texas Human Resources Code or a state child healthplan under chapter 62 of
                            the Texas Health and Safety Code

            IT IS ORDERED that the party who pays for a health care expense on behalf of a child shall
    furnish to the other party, within thirty days of receiving them, all forms, receipts, bills, and
    explanations of benefits paid reflecting the uninsured portion of the health-care expenses the paying
    party incurs on behalfof the child,, ITIS FURTHER ORDERED that ifthe paying party furnishes all
    of these forms, receipts, bills, and explanations of benefits to the nonpaying party within thirty days
    of receiving them, the nonpaying party shall pay his or her share of the uninsuredportion of thehealth-
)   care expenses either by paying the health-care provider directly or by reimbursing the paying party at
    the paying party's last known mailing or' residence address for any advance payment exceeding the
    paying party's share of the expenses no later than thirty days after the nonpaying party receives the
    following documentation relating to the health-caie expense:

                    a       a receipt for a prescription

                    b       a receipt for a copayment for health-care services,

                    c       a receipt for' health-caie expenses of a type not covered by the healthinsurance
                            plan, or

                    d       an explanation of benefits stating the benefits paid for all other health-care
                            expenses

           If the paying party does not furnish to the nonpaying party ail of the forms, receipts, bills, and
    explanations of benefits paid reflecting the uninsuredportion of ahealth-care expense the payingparty
    incurred on behalf of the child within thirty days of receiving these documents, IIIS ORDERED that
    the nonpayingparty shallpay his or her share ofthe uninsuredportion ofthe health-care expense either
    by payingthehealth-care provider directly or byreimbursing the payingparty at the paying party1s last


    FINAL DECREE OF DIVORCE Page 11       ÿ




)
                                    ')                                                ")
                                                                                       .1




    known mailing or residence address for any advance payment exceeding the payingparty's share of
    the expense no later than 120 days after the nonpaying party receives the documentation listed above
    in this section relating to the health-care expenses ,

           If the paying party does not furnish to the nonpaying party all the forms, receipts, bills, and
    explanation ofbenefits paidreflecting the uninsuredportion of health care expenses within sixty (60)
    days then IT IS ORDERED the paying party shall have waived their right to r eimbursement for the
    uninsured portion of the health care expenses ftom the nonpaying party.,

             ITIS ORDERED that reasonableness of the charges for health-care expenses shallbepresumed
    when a party is furnished with the applicable documents for the charges and that disallowance of the
    bill by a health insurer shall not excuse that party's obligation to make payment or reimbursement as
    otherwise providedherein

          10   WARNING- APARENI ORDEREDTOPROVIDEHEALTHINSURANCEORTO
    PAY I HE OTHER PARENT ADDITIONAL CHILD SUPPORT POR THE COST OF HEALTH
    INSURANCE WHO FAILSTOIX) SO IS LIABLEFORNECESSARYMEDICALEXPENSES OF
    THE CHILDREN, WITHOUT REGARD TO WHETHER IHEEXPENSES WOULD HAVEBEEN
    PAID IF HEALTHINSURANCE HAD BEEN PROVIDED, AND FOR THE COST OF HEALTH
    INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID ON BEHALF OF THE
    CHILDREN.

            IT IS ORDERED that the child support as prescribed in this decree shall be exclusively
    discharged in the manner ordered and that any direct payments made by JOHN JEFFREY
    McCAFFERTY to MARY MICHELINE McCAFFERTY or any expenditures incurred by JOHN
    JEFFREY McCAFFERTY during JOHN .JEFFREY McCAFFERTY's periods of possession of or
    access to the child, as prescribed inthis decr ee, for food, clothing, gifts, travel, shelter, or entertainment
    are deemed in addition to and not in lieu of the support ordered in this decree

    Dispute Revolution under Texas Family Code 153.603

             The parties shall agr ee on a mutually agr eeable counselor in the event of a future dispute
    prior to filing any court action The parties shallattendanddiscuss the issue with a counselor within
    ten (10) days of one party's request. The parties shall use the counselor to resolve disputes prior to
    any court action In the event the other party fails to attend the counseling session within ten (10)
    then either party may pursue court action.. This provision shall not apply to enforcement actions of
    child support .


            Eachparty is ORDERED to inform the other party within four hours of any medical condition
    of the parties' child requiringsurgical intervention, hospitalization, or both




    FINAL DECREE OF DIVORCE - Page 12

J
                             }




Children 's Separ ate Property

        The Court finds AMANDA LAUREN McCAFFERTY shall own as her separate property and
shall have clear title to the 2005 White Volvo VIN# YVIC 7911551145 741 upon the Volvo beingpaid
oS:

        The Court finds an agreement of the parties regarding the purchase of a black Volvo for
ALANA NICOLE MCCAFFERTY.. Beginning on the day after the divorce is finalized ALANA
NICOLE MCCAFFERTY shall have exclusive use of the black 2005 Volvo for seven (7) days to
decide if she wants to buy the Vovlo for $25,000 The parties agree that Husband has contributed
$15,000 (included in the $509,000) towar ds a car of ALANA NICOLE MCCAFFBRTY's choice,. IT
JS THE AGREEMENT OF THE PARTIES and ALANA NICOLE MCCAFFERTY shall return the
2005 Volvo to the owner in the event she elects not to purchase it on or before the seventh (7,h) day  ,




       The Court finds AMBER CARINA McCAFFERTY shall own as her separate property and
shall have clear title to the 2004 Lexus VIN# JTJGA31UX40025683..             JOHN 1EFFREY
McCAFFERTY hereby agrees to repair the haildamag£g£l(ie 2004 Lexus at his sole cost and expense

College for the Children            .n
                                           XC&\
        Notwithstanding any language her ein to the contrary, JOHNJEFFREY McCAFFERTY shall
relinquish any andall control of the Texas Tomorrow Fundto MARY MICHELINEMcCAFFERIY
and she shallhavethe exclusive right to manage andmake any decisions to the Texas IomorrowFund
in her sole discretion                           '

         Additionally, JOHN JEFFREY McCAFFERIY and MARY MICHELINEMcCAFFERIY
her eby agr ee to pay 50 % each for any room and board of the children, not cover ed by the Texas
Tomorr ow Fund, while attending undergraduate college full time from September through May., IT
ISAGREED the cost for room and boardshall not exceed on-campus dormitory room and board cost,,

        While the children are attending undergraduate college foil time, JOHN JEFFREY
McCAFFERIY and MARY MICHELINE McCAFFERTY hereby agree to pay 50 % each for' the
childr en's health insurance

       Additionally, JOHN JEFFREY McCAFFERTY hereby agr ees to pay $500 per month to each
child, while attending undergraduate college full time, except during the summer session.. IT IS
AGREED by the parties the children shall pay for their car insurance from the $500 per- month

Life Insurancefor Benefit of Children
        Notwithstandingany language hereinto the contrary, JOHN JEFFREY McCAFFERTY hereby
agrees to maintain a life insurance policy with a death benefit of $1,000,000 for the benefit of his
children shar e and share alike until the youngest child has graduated from college or May 14,2014,


FINAL DECREE OF DIVORCE - Page 13
    )   whichever occurs first..

               The informationrequired for each party by section 105 006(a) of the Texas Family Code is as
        follows:
               Name: JOHN JEFFREY McCAFFERTY
               Social Security number :       XXX XX 72 69
               Driver 's license number and issuing state: XXXX0813 Iexas
               Current residence address:     14327 Hughes Lane, Dallas, Texas 75254
               Mailing address:       same
               Home telephone number: N/A
               Name of employer: Abacus Equipment Inc.,
               Address of employment:         1805 John Connally Drive, Canollton, Texas 75006
               Work telephone number:         972-416-7275

               Name: MARY MICHELINBMcCAFFERTY
               Social Security number:       XXXX XX 9228
               Driver's licensenumber' and issuing state:    XXXX 0943 Texas
               Current residence address:    15137  King  of Spain, Dallas, Iexas 75248
               Mailing address:      same
               Home telephone number :
               Name of employer : N/A
               Addr ess of employment: N/A
               Work telephone number :       N/A

J              Name: ALANA NICOLE McCAFFERTY
               Social Security number:       XXX-XX-
               Driver's license number and issuing state:   N/A
               Current residence address:
               Mailing address:      same
               Home telephone number:
               Name of employer : N/A
               Address of employment         N/A
               Work telephone number;        N/A

              EACHPERSONWHO IS APARIYTOTHISORDERIS ORDERED TO NOTIFYEACH
        OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN
        THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME
        TELEPHONE NUMBER, NAME OF EMPLOYER,ADDRESS OF EMPLOYMENT,DRIVER'S
        LICENSE NUMBER, AND WORK TELEPHONE NUMBER. THE PARTY IS ORDERED TO
        GIVE NOTICE OF AN INTENDED CHANGE INANY OF THE REQUIRED INFORMATION
        TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY ON OR
        BEFORE THE 60TH DAY BEFORE THE INTENDED CHANGE IF THE PARIY DOES NOT
        KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO


        FINAL DECREE OF DIVORCE - Page 14

)
    >   PROVIDE 60-DAY NOTICE, THEPARTY IS ORDEREDTO GIVENOTICE OF THE CHANGE
        ONOR BEFORE THE FIFTHDAYAFTER IHEDATE IHAT THE PARTY KNOWS OF THE
        CHANGE.

              IHEDUTYTOFURNISHIHIS INFORMATION IOEACHOTHERPARTY,THECOURT,
        AND 1HESTATE CASEREGISTRY CONTINUES AS LONGAS ANY PERSON, BY VIRTUE OF
        THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO
        POSSESSION OP OR ACCESS TO A CHILD

             FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH
        OTHER.PARTY, THE COURT,AND THE STATECASEREGISIRYWTIH THE CHANGEINTHE
        REQUIRED INFORMATION MAY RESULT IN FURTHER L2TTGAIION TO ENFORCE THE
        ORDER, INCLUDING CONTEMPT OF COURT.. A FINDING OF CONTEMPT MAY BE
        PUNISHEDBY CONFINEMENI INJAIL FORUP TO SIX MONTHS,A FINE OP UPTO $500 FOR
        EACHVIOLATION,AND AMONEY JUDGMENT FORPAYMENI OF ATTORNEY'S FEESAND
        COURT COSTS.

                 Notice shall be given to the other paity by deliveiing a copy of the notice to the party by
        registered or certified mail, returnreceipt requested, Notice shallbe given to the Court by delivering a
        copy of thenotice either inpersonto the cler k of this Court or by r egistered or certified mail addressed
        to the clerk.Notice shallbe given to tbe state case registrybymailing a copy of the notice to State Case
        Registry, Central File Maintenance, P..O. Box 12048, Austin, Texas 78711-2048..

\             WARNINGS TO PARTIES:FAILURETO OBEY A COURT ORDER FOR CHILD SUPPORT
J       ORFOR POSSESSIONOF OR ACCESS TO A CHILDMAY RESULT INFURTHERLITIGATION
        TO ENFORCEIHEORDER, INCLUDINGCONTEMPTOF COURT. A FINDINGOF CONTEMPT
        MAY BEPUNISHEDBY CONFINEMENT INJAIL FORUP 10 SDC MONTHS,A FINEOF UP TO
        £500 FOREACHVIOLATION, ANDAMONEYJUDGMENIFORPAYMENTOF ATTORNEY'S
        FEES AND COURT COSTS,,

             FAILURE OF A PARTY IOMAKEACHILDSUPPORIPAYMENTTO THE PLACEAND
        INTHE MANNER REQUIRED BY A COURT ORDER MAY RESULT INTHE PARTY'S NOT
        RECEIVING CREDIT FOR MAKING THE PAYMENT:

             FAILUREOF APARTYTOPAYCHILD SUPPORTDOESNOT TUSTIFYDENYINGTHAT
        PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD, REFUSAL BY A
        PARTY TOALLOW POSSESSIONOFOR ACCESS IOA CHILD DOESNOTJUSTIFY FAILURE
        TO PAY COURT-ORDERED CHILD SUPPORI 10 THAT PARTY

        Division ofMaritalEstate

               Tbe Court finds that tbe following is a just and right division of tbe parties' marital estate,
        having due r egard for the rights of each party


        FINAL DECREE OF DIVORCE - Page 15
    /

                                                MaritalResidence

               IT IS FURTHER ORDERED AND DEGREED that the property and all improvements
        located thereon at lot 40 block 1/8175, Williamsburg At Preston An Addition to the City of Dallas
        According to the Plat thereof recorded in Volume 78090 Page 1397, Map Records of Dallas County,
        Texas, and more commonLy known as 14327 Hughes lane Dallas, Texas 75254, hereinafter
        "Property," shall be sold under the following terms and conditions:

                1.     The JOHN JEFFREY McCAFFERTY shall list the pr operty with a duly licensed r eal
        estate broker having sales experience in the area wher e the property is located,

             2.,  The property shall be sold for a price as determined by JOHN JEFFREY
        McCAFFERTY,, MARY MICHELINE McCAFFERTY shall receive $509,000 as her share of the
        community property To ensure compliance of the monies due MARY MICHELINE
        McCAFFERTY, title to the Properly shall not transfer until such time as MARY MICHELINE
        McCAFFERTY has received her community property due or contemporaneous with a closing of the
        Property,, XT IS ORDERED MARY MICHELINE McCAFFERIY shall remove her name flora the
        title to the Property upon receipt of her community property due., IT IS ORDERED MARY
        MICHELINE McCAFFERTY shall sign a Special Warranty Deed removing her name flora title to
        the Property contempor aneous with the receipt of her share of the community property described
        herein.

ÿ               3.       JOHN JEFFREY McCAFFERTY shall continue to make all payments of principal,
/       interest, taxes, and insurance on the property during the pendency of the sale, and JOHN JEFFREY
        McCAFFERTY shall have the exclusive right to enjoy the use and possession of the premises until
        closing, All maintenance and minor repairs necessary to keep the property in its present condition
        shall be paid by JOHN JEFFREY McCAFFERTY         ,




              4.     The net sales proceeds (defined as the gross sales price less cost of sale and full
        payment of any mortgage indebtedness or liens on the property) shall be distributed as follows:

               a,.    $509,000 to MARY MICHELINE McCAFFERTY. (The parties agree the
                      $509,000 is compromised of Wife's share of the community property of $434,000
                      from the equity of the marital residence, $45,000 to help her pay her credit cards in
                      her name, $15,000 towards ALANA NICHOLE McCAFFERTY'S automobile and
                      $15,000towardsMARYMICHELINEMcCAFFERTY automobile).. Notwithstanding
                      the forgoing language, JOHN JEFFREY McCAFFERTY shall be r eimbursed from the
                      $509,000 due MARYMICHELINEMcCAFFERIY limitedto the following amounts:

                                     1      Monies paid Wife by Husband after1 date of divorce as an
                                            advance on her $509,000,. The advance on the $509,000 shall
                                            be defined by the amount Husband pays Wife after divorce in


        FINAL DECREE OF DIVORCE - Page 16
                                   )




                                            the contemplated amount of $4000 per' month payable each
                                            15th of the month, The parties hereby agree the intent of the
                                            parties is Wife havemonies untilshe receives her share of the
                                            community property from JOHN JEFFREY McCAFFERTY;
                                            and

                                       2.   Health insurance payments paid by Husband for Wife after
                                            divorce, and,

                                       3.   Only in the event ALANA McCAFFERTY elects to keep the
                                            blackVolvo, then $25,000 shall bededucted from the $509,000,,

                                       4    No other deductions from the $509,000 shall be allowed;

            b.      Any balance of the net proceeds from the sale of the Pr operty shall be paid to
                    JOHN JEFFREY McCAFFERTY                       IT IS ORDERED JOHN JEFFREY
                    McCAFFERTY may exercise his option to buy the Property , In the event JOHN
                    JEFFREYMcCAFFERTY exerciseshisright to buy the Property,MARYMICHELINE
                    McCAFFERTY nevertheless shall receive her share of the community property as
                    identified inparagraph 4 (a) of the par agraph titled "Marital Residence" but subject to
                    said deductions identified therein IT IS ORDERED MARY MICHELINE
                    McCAFFERTY shall cooperate in the refinancing or purchase of the marital r esidence
                    by JOHN JEFFREY McCAFFERTY in the event he chooses to exercise the option to
                    buy

            c.      It is the agreement of the parties that JOHN JEFFREY McCAFFERTY shall pay
                    MARY MICHELINE McCAFFERTY four thousand dollars ($4,000,00) per month
                    untilthe Pr operty is sold oi she r eceives her1share of the community property identified
                    herein and such $4,000,00 per month shall be an offset against the $509,000 due
                    MARY MICHELINE McCAFFERTY,,

    Property ofHusband

            IT IS ORDERED AND DECREED that the husband, JOHN JEFFREY McCAFFERTY, is
    awarded the following as his sole and separate property, and the wife is divested of all light, title,
    interest, and claim in and to that property:

             H- l. All stocks and ownership of Abacus Crane and Hoist, a division of Abacus
    Equipment Incorporated, and Abacus Equipment Incorporated which shall delude but not limited
    to all stocks, furniture, fixtures, machinery, equipment, inventory, cash, receivables, accounts, goods,
    and supplies; real property, all personal property used in connection with the operation of the
    business; and all rights and privileges, past, present, or future, arising out of or in connection with
    the operation of the business and shall include the real estate commonly known as 1805 John


    FINAL DECREE OF DIVORCE Page 17

)
                                                                              )



Connaily Cairollton Texas 75006 more particularly described as set forth in Exhibit A, attached
hereto and incorporated by reference.

        H-2 All householdfurniture, furnishings, fixtures, goods, art objects, collectibles, appliances,
and equipment inthe possession of the husband or subj ect to his sole control including but not limited
to the following:

        Laundry room: Kenmore washer and dryer;
        Dining Room: 3 Pictures;
        Garage: contents and tools;
        Kitchen and Pantry: Marble Tables, 8 leather chairs, bar stools, brass table, painting, T V;
        Den: Sofa, 2 chairs, end tables, mirror, brass lamps, bar glasses, liquor, stereo, Sony TV and
                Surround sound system;
        Game Room: Brunswick Pool I      able;
        Master Bedroom: King bed, dresser, desk, 4 chairs, 2 end tables, IV, coffee table, 2 night
                stands, 5 lamps, 3 paintings;
        Exercise Room: 4 exercise machines;
        Upstairs 3 Bedrooms: 2 queen beds, lamps, 4 chairs;
        Other :Dell Laptop computer, entry table with mirror, plants, vases, minor;
        Living Room: square carpet, two couches, one table;
        Yard: 2 tables, chairs, bar stools
        Office: desk, drafting table, copying machine, fax, credenza, 3 chairs, computer with
                engineering program, miscellaneous office items..

        H-3 , All clothing,jewelry, and other personal effects in the possession of the husband or
subject to his sole control

        H 4.. All sums of cash in the possession of the husband or subject to his sole control,
including funds on deposit, together with accruedbut unpaid interest, inbanks, savings institutions, or
other financial institutions, which accounts stand in the husband's sole name or from which the
husbandhas the sole right to withdraw funds or which are subject to the husband's sole control

        H-5. All sums, whether matured or' unmatured, accrued or unaccrued, vested or otherwise,
together with all increases thereof, the proceeds therefrom, and any other rights r elated to any profit-
sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan,
employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason
of the husband's past, present, or future employment

      H-6 . All individual retirement accounts, simplified employee pensions, and annuities in the
husband's name, unless otherwise stated herein to the contrary including but not limited to the
following:
                Compass Bank IRA 863585
                Compass Bank IRA 1000507128


FINAL DECREE OF DIVORCE - Page 18
]                      Compass Bank IRA 10028858847
                       Compass Bank IRA 2000002673
                       Compass Bank IRA 2000020193
                       Compass Bank IRA 0000857242
                       InwoodBank IRA S6595

               H-7 .   All inter ests and ownership in Conseco Annuity Acct # 0N266767;

            H-8., All policies of life insurance (including cashvalues) insuring the husband's life unless
    expr essly stated herein to the contrary which shall includebut not be limited to the following:

                       Berkshire Life/ Guardian L0874706
                       Prudential Life 93 138 540
                       Prudential Life 38 853 834
                       Prudential Life 61 082 147
                       Prudential Life 38 995 500

           H-9     All brokerage accounts, stocks, bonds, mutual funds, and securities r egistered inthe
    husband's name, together with all dividends, splits, and other rights and privileges in connection with
    them, including but not limited to: Abacus Crane and Hoist, a division of Abacus Equipment
    Incorporated, and Abacus Equipment Incorporated,

            H-10 The 2000 FordF350Truck,VIN# 1GCGC34RGYR153859, inPetitioner'spossession,
    together with all prepaid insurance, keys, and title documents

           H-ll. The 2002 GMC Denali, VIN# 1GKFK66U325278636, inRespondent's possession,
    together with all pr epaid insurance, keys, and title documents.,

    Property of Wife

            IT IS ORDERED AND DECREED that the wife, MARY MICHELINE McCAFFERTY, is
    awarded the following as her sole and separate property, and the husbandis divested of ah right, title,
    interest, and claim in and to that property:

           W- 1. $509,000 due as her share of the communityProperty underthe terms more particularly
    described inthe paragraph aboveentitled "Marital Residence" andsubject to the deductions described
    therein,

               W-2 All householdfurniture, furnishings, fixtures, goods, art objects, collectibles, appliances,
    and equipment inthe possession of the wife or subject to her sole control IT IS ORDERED MARY
    MICHELINEMcCAFFERTY shall be entitled to enter' 14327 Hughes Lane, Dallas, Texas to retrieve
    any other personal property remaining at the Hughes LaneDallas r esidence not all ready r emoved by
    her The parties shall agree on a time to remove the remainder of her personal property .


    FINAL DECREE OF DIVORCE - Page 19
        W-3 . All clothing,jewelry, and othei personal effects inthe possession of the wife or subject
to her sole control

         W- 4 All sums of cash in the possession of the wife or subject to her sole control, including
funds on deposit, together with accrued but unpaid interest, in banks, savings institutions, or other
financial institutions, which accounts stand in the wife's sole name or from which the wife has the sole
right to withdraw funds or which are subject to the wife's sole control, includingbut not limited to:

                          ankof      erica Acct#W 8.360
                                        caACcrrÿSKhÿSSÿ 0

        W-5 All sums, whether matured or unmatured, accrued or' unaccrued, vested or otherwise,
together with all increases thereof, the proceeds therefrom, and any other' rights related to any profit-
sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan,
employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason
of the wife's past, present, or future employment unless otherwise statedherein to the contraiy,

        W-6 All individual retirement accounts, simplified employee pensions, annuities, and
variable annuity life insurance benefits in the wife's name unless otherwise stated herein to the
contrary

     W-7 All insurance,pensions,retirement benefits, and other benefits arising out of the wife's
membership in any union unless otherwise statedherein to the contrary..

        W-8     All policies of life insurance (including cash values) insuring the wife's life.

Liabilities

        ITIS ORDERED AND DECREED that the husband, JOHN.JEFFREY McCAFFERTY, shall
pay, as a part of the division of the estate of the parties, and shall indemnify andholdthe wife and her
property harmless from any failure to so discharge, these items:

         H-l The balance due, including principal, interest, tax, and insurance escrow, on the
promissory note executed by JOHN JEFFREY McCAFFERTY, in the original principal sum of
$7 75,000 dated August 25,2003, payable to WAMU and/or assignee, and secur ed by deed of trust on
the real properfy awarded in this decree to the husband, whichis recorded inDeed of Trust Records of
Dallas County, Texas on the pr operty commonly known as 14327 Hughes Lane, Dallas,Texas 75254.

        H-2. The balance due, includingprincipal, interest, andallother charges, on the promissory
note payable to lender and given as part of the purchase price of and secured by a lien on the motor
vehicles awarded to the Husband, if any.



FINAL DECREE OF DIVORCE - Page 20
       H-3 . Any and all debts, charges, liabilities, and other obligations incurred solely by the
husband from and after March 26, 2008, including but not limited to their respective credit cards and
attorney fees, unless express provision is made in this decree to the contrary.

       H-4 The following specific debts, charges, liabilities, and obligations, unless express
provision is made herein to the contrary:

        American Express xxx 92005 with an approximate balance of $38,439 as of 9/10/2008;
        Capital One xxx 0502 with an approximate balance of $4,899
        Citibank Visa xxx 0083 with an approximate balance of $22,567 as of 4/10/09;
        Bank of America xxx 549 1 with an approximate balance of $9,529 as of 4/10/09;
        Chase Visa xxx 1887 with an approximate balance of $15,439 as of 4/10/09;
        Chase Visa xxx 75 79 with an approximate balance of $9626 as of 4/10/09;
        Bank of America (MC)xxx 7252 with an approximate balance of $32,825 as of 4/10/09;
        First Equity Visa xxx 8448 with an approximate balance of $4183 as of 4/10/09;
        Chase Visa xxx 5459 with an approximate balance of $19,694 as of 4/10/09
        GMCard xxx 0169 with an approximate balance of $20,20515 as of 4/10/09;
        Capital One Visa xxx 8912 with an approximate balance of $2,116
        Advanta(MC) xxx 8014 with an approximate balance of $18607 as of 4/10/09;
        Chase Visa xxx 5159 with an approximate balance of $24,035 as of 4/10/09
        Chase Visa xxx 0601 with an approximate balance of $16,895 as of 4/10/09

        * The appr oximate total of the above cr edit card liability is $248,662.00.
      H-5 All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to
become due including electricity, gas, water, phone, cable, sewage on the real and personal property
awarded to the husband in this decree unless express provision ismade in this decree to the contrary ,.

       H-6. Any and all debts held in the individualname of the Husband unless expressly stated
otherwise herein

       H-7     Any and all debts or liabilities associated with Abacus Crane and Hoist, a division
               of Abacus Equipment Incorporated, and Abacus Equipment Incorporated and any
               other corporation in Husband's name.

       H-8     Any and all debts due "The IIMcCafferty Trust" and debts due "B .J. McCafferty
               Trust"      The Court finds JOHN JEFFREY McCAFFERTY has represented to
               MARY MICHELINE McCAFFERTY that the Trusts identified herein shall not
               demand payment of any debts until MARY MICHELINE McCAFFERTY has been
               paid in fhll her share of the community property due under this decree..

       H-9     Any attorneys' fees incurred by JOHN JEFFREY McCAFFERTY;



FINAL DECREE OF DIVORCE - Page 21
5   1   1
                .1                                 )




            )                H-10 Any balance due Shelton School

                             H-ll Reimbursement of moving expense incurred by MARY MICHELINE
                                  McCAFFERTY on January 20, 2009 JOHN JEFFREY McCAFFERTY shall pay
                                  MARY MICHELINE McCAFBERIY within thirty days (30) of request by MARY
                                  MICHELINE McCAFFERrY..

                             H-l2 Fifty (50 %} per cent of medical,dental, optical, and counseling for the childrensince
                                  August 10, 2008 to the present.. Any payments under this paragraph by JOHN
                                  JEFFREY McCAFFERTY to MARY MICHELINEMcCAFFERTY shall be an offset
                                  against any child support due or paid during this period


                             ITIS ORDERED AND DECREED that the wife, MARY MICHELINEMcCAFFERTY, shall
                     pay, as a part of the division of the estate of the parties, andshall indemnify and holdthe husbandand
                     his property harmless fiom any failure to so discharge, these items:

                             W- 1,  The balance due, includingprincipal, interest, and all other charges, on any credit car ds
                     inMARYMICHELINEMcCAFFERXY name or1any other cr edit cards wherein MARYMICHELINE
                     McCAFFERTY has incurred credit card charges whether as principal party on a credit card or as
                     secondary party to a credit card and including but not limited to the following:

                             a,      MasterCard Acct 5424 1806 3044 7602
        \                    b..     Visa Acct xxxx xxx xxxx 1:375
    J                        c       Visa Acct xxxx xxx xxxx. 0086

                            W-2 . Any and all debts, char ges, liabilities, and other obligations incurred solely the wife
                     fiom and after March 26, 2008, including credit cards and attorney fees, unless express provision is
                     made inthis decree to die contrary,

                           W-3.. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to
                     become due including electricity, gas, water, phone, cable, sewage on the real and personal property
                     awarded to the wife in this decree unless express provision is made in this decree to the contrary,.

                            W-4. Any and all debts held in the individual name of the wife unless expressly stated
                     otherwise herein

                            W-5      Any attorneys' fees incurred by MARY MICHELINE McCAFFERTY..


                     FederalIncome Taxes

                            ITIS ORDERED AND DECREED for the calendar year 2.008, the parties shall file ajoint tax


                     FINAL DECREE OF DIVORCE - Page 22

    )
                                                                                   1



    )   return. Any deficiencies for the tax year 2008 shall be paid by TOHN JEFFREY McCAFFERTY and
        any refunds shall be the separate property of ' JOHN .JEFFREY McCAFFERTY..
                IT IS ORDERED AND DECREED MARY MICHELINE McCAFFERTY shall be solely
        responsible and hold JOHN JEFFREY McCAFFERTY harmless for any federal income taxes,
        penalties, andinterest on any incomeearned attributable to MARY MICHELINE McCAFFERTY on
        or before December 3 1, 2008

        Injunctive Relief

                The permanent mutual injunction granted below shall be effective immediately and shall be
        binding on JOHN JEFFREY McCAFFERTY and MARY MICHELINE McCAFFERTY on their
        agents, servants, employees, and attorneys; and on thosepersons inactive concert orparticipation with
        them who receive actual notice of this order by personal service or otherwise,.

             IT IS ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY and MARY
        MICHELINE McCAFFERTY are permanently enjoined from:

               Maligningthe other parent inthe auditorypresence of the child, nor permit any other individual
               or family member from maligning the other par ent inthe pr esence of the child

               Petitioner and Respondent waive issuance and service of the writ of injunction,by stipulation
               or as evidencedby the signatures below.. IIIS ORDERED that Petitioner and Respondent shall
               be deemed to be duly served with the writ of injunction

J       Tax Exemptions

                IT IS FURTHER ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY shall
        have the right, in accordance with section 152(e) (2) of the Internal Revenue Code of 1954, as
        amended, to claimthe dependency exemptions for1the child, ALANA NICOLEMcCAFFERTY, for
        the purposes of federal income taxes for 2009 and all subsequent years..

              IT IS FURTHER ORDERED AND DECREED that MARY MICHELINEMcCAFFERTY
        and TOHN .JEFFREY McCAFFERTY shall sign any tax forms necessary to claimthe child as JOHN
        .JEFFREY McCAFFERTY's respective tax dependant including but not limited to tax form 8332.

        Court Costs

               ITIS ORDERED AND DECREED that costs of court are to be bomeby the party who incurred
        them

        Discovery Retention Requirement

               ITISORDERED AND DECREEDthat theparties andtheir' respective attorneys are discharged

        FINAL DECREE OF DIVORCE - Page 23

)
    from the requirement of keeping and storing the documents produced in this case in accordance with
    rule 191 4(d) of the Texas Rules of Civil Procedure.

    Decree Acknowledgment

            Petitioner, JOHN JEFFREY McCAFFERTY, and Respondent, MARY MICHELTNE
    McCAFFERTY, each acknowledge that before signing this FinalDecree of Divorce they haveread
    this Final Decr ee of Divorce fully and completely, have had the opportunity to ask any questions
    regarding the same, and fully understand that the contents of this FinalDecree of Divorce constitute
    a full and complete resolution of this case Petitioner and Respondent acknowledge that they have
    voluntarily affixed their signatur es to this Final Decree of Divorce, believing this agr eement to be
    ajust and right division of the marital debt and assets, and state that they have not signed by virtue
    of any coercion, any duress, or any agreement other than those specifically set forth in this Final
    Decr ee of Divorce ,

    Indemnification
             Each party represents and warrants that he or she has not incurred any outstanding debt,
    obligation, or other liability on which the other party is or may be liable, other than those described
    in this decree. Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is
    hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or
    an omission of the other party liable for such debt, obligation, liability, act or omission of the other
    party, that other party will, at his or her sole expense, defend the party not assuming the debt,
    obligation, liability, act, or omission of the other party against any such claim or demand, whether
    or* not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or
    omission of the other party and hold him or her harmless from all damages r esulting from the claim
    or demand

           Damages, as used inthis provision, includes any r easonable loss, cost, expense, penalty, and
    other damage, including without limitation attorney's fees and other costs and expenses reasonably
    and necessarily incurred in enforcing this indemnity,

            IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on
    demand, for any payment made by the indemnified party at any time after the entry of the divorce
    decree to satisfy a judgment of any court of competent jurisdiction or inaccordance with a bona fide
    compromise or settlement of claims, demands, or actions for any damages to which this indemnity
    relates,

            The parties agree and IT IS ORDERED that each party will give the other party prompt
    written notice of any litigation thr eatened or instituted against either party that might constitute the
    basis of a claim for indemnity under this decree

    No Longer Attorney ofRecord


    FINAL DECREE OF DIVORCE - Page 24



V
                                                                                 "N*

                                                                                       )




           IIIS ORDERED Attorney for Petitioner is hereby released as attorney of record after the
    Decree of Divorce is signed by the Court

    Clarifying Orders

             Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves the
    right to make orders necessary to clarify and enforce this decree,

    ReliefNot Granted
            IIIS ORDERED AND DECREED that all relief requested in this case and not expressly
    gr anted is denied

    Date ofJudgment

            SIGNED on      _              _£Z
                                                __                 ,2009,,
                                                       A
                                                               Associate Judge
                                                                  iam.lyI.SsU-' Courto
                                    JUDGE



)




    FINAL DECREE OF DIVORCE - Page 25
EXHIBIT D
                                      (                                          f
>
    '




                                                   NO 08 05932 R

          MARY M. MCCAFFERTY,                                    IN THE DISTRICT COURT
          ALANA MCCAFFERTY and
          AMANDA MCCAFFERTY
          V.                                                     254TH JUDICIAL DISTRICT

          JOHN JEFFREY MCCAFFERTY                                DALLAS COUNTY, TEXAS

                       PETITION FOR ENFORCEMENT OF PROPERTY DIVISION
                            AND PETITION FOR BREACH OF CONTRACT

                        Discoveiy in this case is intended to be conducted undei level 2 of rule 190 of the

         Texas Rules of Civil Procedure

                2       This suit is brought by Mary M McCafferty, Alana Nicole McCafferty, and

        Amanda McCafferty, Petitioners           Respondent, John Jeffrey McCafferty, should be served

        with process at 14327 Hughes Lane, Dallas, Texas, or at whatever location he may be found.

                3      On July 17, 2009 this Court tendered an "Agreed Final Decree of Divorce" a copy

        of which is attached hereto as Exhibit "A " The Decree provides in relevant part for the future

        action as follows: "IT IS FURTHER ORDERED AND DECREED that the property and all

        improvements located thereon at      .    ,14327   Flughes Lane, Dallas, Texas 75254, hereinafter

        "Property," shall be sold under the following terms and conditions:          1   The [sic] JOHN

        JEFFREY McCAFFERTY shall list the property with a duly licensed real estate broker having

        sales experience in the area where the property is located "

               Petitioner was the Respondent and Respondent was the Petitioner in the prior

        proceedings

               4.     Respondent has failed to comply with the decree described above as follows:


                                                                                                  V'Fag&T
                                C-


         JOHN JEFFREY MCCAFFERTY to date has not listed the piopeity at 14327 Hughes

 Lane, Dallas, Texas for sale

         5.      Petitioner Mary M McCafferty prays that the Court order Respondent to comply

 with the terms of the divorce decree by a date certain or order that a receiver be appointed to sell

 the proper./ in compliance with the terms of the decree..

         6.      Additionally, under the terms of the Decree, it was the agreement of the parties

 that "JOHN JEFFREY MCCAFFERTY shall pay MARY MICHELINE MCCAFFERTY four

 thousand dollars ($4,000 00) per month until the Property is sold or she receives her share of the

 community property identified herein         " Respondent has failed       to pay the $4,000 00 per

month as agr eed and Petitioner r equests enfor cement of this provision.

        7        JOHN JEFFREY MCCAFFERTY agreed under the Divorce Decree to pay 50%

of any college room and board of the children not covered by the Texas Tomorrow Fund while

attending college full time from September through May             Additionally JOHN JEFFREY

MCCAFFERTY agreed to pay $500 per month to each child while attending undergraduate

college full time, except duiing the summer session.         JOHN JEFFREY MCCAFFERTY has

failed to pay these expenses, and Petitioners request that he be ordered to pay these funds and

that Petitioners have judgment against Respondent for these expenses

        8.       In the Final Decree of Divorce, the Court found that the 2005 White Volvo was

Amanda McCafferty's separate property and that she should have clear title to the vehicle upon it

being paid off     Amanda McCafferty has never received the title to the vehicle and requests that

JOHN JEFFREY MCCAFFERTY be ordered to provide proof of payment of the vehicle and that

the title be provided to her
                                         f                                         c
                  9         All conditions precedent have been performed or have occurred Petitioners

        request that, if the Court finds that any part of the order sought to be enforced is not specific

        enough to be enforced, the Court enter a clarifying order restating the terms ofth.Q order, decree,

        or judgment in a manner specific enough to allow enforcement and specifying a reasonable time

        within which compliance will be required

                  10        It was necessary to secure the services of Holly R Monk, a licensed attorney, to

       enforce and protect the rights of Petitioners       Respondent should be ordered to pay reasonable

       attorney's fees, expenses, and costs, and a judgment should be rendered in favor of the attorney

       and against Respondent and be ordered paid directly to the undersigned attorney, who may

       enforce the judgment in the attorney's own name. Petitioner requests postjudgment interest as

       allowed by law.

                 Petitioner prays that citation and notice issue as required by law, that the Court grant the

       Petition for Enforcement of Property Division and Petition for Breach of Contract, for attorney's

       fees, expenses, costs, and interest, and for all further relief authorized by law


                                                        Respectfully submitted,
                                                        Bailey & Galyen
                                                        4131 N. Cental Expressway, Suite 860
                                                        Dallas, TeStte 75204   ]




.   '''WfifiphT6fÿnforce.nfi;i[it    ...........
                                    .....
                                     ..... ,                            '727           7         _   .   .. 7£age_3
Form #329 - NOTICE OF HEARING
            CAUSE NO PF-08-05932                           SERVICE OFFICER:               ATTY
                                                           Clerk's fees                   $8 00
         STYLE                                             Officer's fees collected       $
   INTHE MATTER OF THE MARRIAGE OF                         Officer's fees not collected   sxxx
          JOHN MCCAFFERTY                                  Costs not complied with        $
                           vs.
                                                           Affidavit Inability to Pay     s
              MARY MCCAFFERTY
                                            THE STATE OF TEXAS

TO: JOHN JEFFREY MCCAFFERTY

YOU ARE HEREBY NOTIFIED OF A HEARING SET FOR SEPTEMBER 30. 2013 AT 9:30AM IN
THE 254th District Court LOCATED AT 600 COMMERCE STREET PALLAS TEXAS 75202 SEE
ATTACHED

HEREIN FAIL NOT, but of this writ make due return showing how you have executed the same.
WITNESS: GARY FITZSIMMONS, Clerk of the District Courts, Dallas County, Texas..
GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at office in the City of Dallas, ON THIS THE




                                        _______
25th DAY OF JULY, 2013




                                        ______
Issued at request of:                                  ATTEST:         GARY FITZSIMMONS
 HOLLY R MONK                              ÿ\»uiiii//;//Clerk of the District Courts
4131 N CENTRAL EXPRESSWAY          SUITK&k)                    County, Texas
DALLAS TEXAS 75204
                                                                           r              ,Deputy
                                                                         SACHEEN      AÿTTHUNY""""""


Came to hand on the
and executed on the
delivering to
                                 _„day of
                                 _day of|
                                             O'fÿMt&ÿTURN
                                                               __
                                                             ,20
                                                             , 20
                                                                        , at_
                                                                        ,at_
                                                                 the within named
                                                                                     .o'clock.
                                                                                      o'clock     M.,

                                       in per son, a true copy of this Notice
FEES:
Serving Notice:       $_                             Officer                        .County.
Mileage:              $
IOTAL:                $[                            By:.
Deputy
EXHIBIT E
                                                                                                                      FILED
                                                                                                          DALLAS COUNTY
                                                                                                       9/17/2015 3:19:30 PM
                                                                                                             FELICIA PURE
                                                                                                          DISTRICT CLERK

                                                                                                            Jeffery White

                                        CAUSE NO. 08-05932

MARY M,. MCCAFFERTY                                     §       m THE DISTRICT COURT
ALANA MCCAFFERTY, AND                                   §
AMANDA MCCAFFERTY                                       §
                                                        §
V„                                                      §       254th JUDICIAL DISTRICT
                                                        §
JOHN JEFFREY MCCAFFERTY                                 §       DALLAS COUNTY, TEXAS

  SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISION
   AND PETITION FOR BREACH OF CONTRACT AND FOR ENFORCEMENT OF
            INTERIM ORDER ON PETITION FOR ENFORCEMENT

Discovery

          Discoveiy in this case is intended to be conducted under level 2 of rule 190 of the Texas

Rules of Civil Procedure

Parties

          This suit is brought by Mary M, McCafferty, Alana McCafferty, and Amanda McCafferty,

Petitioners.. The last three numbers of Petitioner's driver's license number are 943,, The last three

numbers of Petitioner's Social Security number are 228

          Respondent, John Jeffrey McCafferty, should be served with process in accordance with

T exas Rule of Civil Pr ocedur e 21a by serving Counter -Respondent's attorney of r ecor d, Fr ank Shot ,

Law Offices of Frank Shor, 1620 East Belt Line Road, Canollton, Texas 75006

Enforcement
          Agreed final   Decree of Divorce

          On July 17, 2009, this Court tendered an Agreed Final Decree of Divorce providing in

relevant part as follows:

SECOND AMENDED FETITIONFOR ENFORCEMENT OF PROPERTY DIVTSION AND PETITION FOR
BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR
ENFORCEMENT
PAGE 1
                               I

                          (




       "The Court finds Amanda Lauren McCaffeity shall own as her separate property and shall
       have clear title to the 2005 White Volvo VIN#YVIC7911551145 741 uponthe Volvo being
       paid oft:

       "Additionally, John JeffreyMcCaffeity and Mary Micheline McCaffeity hereby agree to pay
       50 % each for any room and board of the children, not covered by the Texas Tomorrow
       Fund, while attending undergraduate college full time from September through May IT IS
       AGREED the cost for room and board shall not exceed on-campus dormitory room and
       board cost.

       "Whilethe children are attendingundergraduate college full time, John Jeffrey McCaffeity
       and Mary Micheline McCaffeity hereby agree to pay 50% each for the children's health
       insurance

       "Additionally, John Jeffrey McCaffeity hereby agrees to pay $500 per month to each child,
       while attending undergraduate college full time, except during the summer1 session IT IS
       AGREED by the parties the children shall pay for their car insurance from the $500 per1
       month

       "IT IS ORDERED AND DECREED that the husband, John Jeffrey McCaffeity, shall pay,
       as apart of the division of the estate of the parties, and shall indemnify and holdthe wife and
       her property harmless from any failure to so discharge, these items:

               "H-12 Fifty (50%) percent of medical, dental, optical, and counseling for the
                     children since August 10, 2008 to the present, Any payments under this
                     paragraphby John Jeffrey McCaffeity to Mary Micheline McCaffeity shall
                     be an offset against any child support due or paid during this period "

       Respondent has failed to comply with the terms of the Agreed Final Decree of Divorce as

follows:

       1       Respondent has failed to pay the college expenses for room and board as agreed to
               in the Agreed Final Decree of Divorce Petitioner respectfully requests that
               Respondent be ordered to pay these funds and that Petitioner s beawaided a judgment
               against Respondent for these expenses

       2       Respondent has failed to pay for his portion of the children's health insurance
               premiums as agreed to inthe Agreed Final Decree of Divorce Petitioner respectfully
               requests that Respondent be ordered to pay these funds and that Petitioners be
               awar ded a judgment against Respondent for these expenses

SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISIONAND PETITION FOR
BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ONPETITIONFOR
ENFORCEMENT
PAGE 2
I                   1


                              (



           3       Respondent failed to pay $500 per month to each child while the children were in
                   college as agreed to inthe Agreed Final Decree of Divorce Respondent r espectfully
                   requests that Respondent be ordered to pay these funds and that Petitioners be
                   awar ded a judgment against Respondent.

           4       Respondenthasfailedtopaytiftypeicentofmedical, dental, optical, and counseling
                   for the children from August 10, 2008 through the entry of the Agreed Pinal Decree
                   of Divorce.. Petitioner respectfully requests that Respondent be ordered to pay these
                   funds and that Petitioners be awarded a judgment against Respondent for these
                   expenses.

           5.      Respondent has failed to provide Amanda McCafferty with the title to the vehicle
                   Petitioner requests that Respondent be ordered to provide proof of payment of the
                   vehicle and that the title be provided to Amanda McCafferty by a date and time
                   certain

           Interim Order on Petition for Enfor cement

           On December 18, 2013, this Court rendered an Interim Order on Petition for Enforcement

    providing in relevant part as follows:

            "2     After the date the house is listed for sale, John Jeffery McCafferty will wire tr ansfer
                   or direct deposit the sum of $6,000 00 per month on the 15th day of each month to
                   Mary M.. McCafferty. .

            "4     If John McCafferty fails to deposit or wire the money inthe amounts or on the dates
                   listed above, upon proof pr ovided to his attorney and to the Court, a receiver will
                   immediately be appointed to list the house at 14327 Hughes Lane, Dallas, Texas for
                   sale No further court hearings will be necessary to appoint the receiver Provided
                   that evidence has been provided to John Jeffrey McCafferty's counsel that John
                   Jeffrey McCafferty has failed to deposit or wire the money inthe amounts and/or on
                   the dates listed hereinabove, then, in the event, Mary McCafferty's attorney will be
                   fully authorized by this Order to pr esent an Order Appointing Receiver to the Court
                   for signature without further notice to or agreement by John Jeffrey McCafferty or
                   by counsel for John Jeffrey McCafferty"

           Respondent has failed to comply with the terms of the Interim Order on Petition for

    Enforcement as follows:


    SECOND AMENDED PETITIONFOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR
    BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ONPETIIIONFOR
    ENFORCEMENT
    PAGE 3
                           (




        1.      Respondent has failed to pay Petitioner the $6,000 00 per month as ordered by the
                Couitfor the months of May, Tune, and July 2015 Respondent respectfully requests
                that the Court order Respondent to pay the funds owed to Petitioner by a date and
                time certain In addition, Petitioner respectfully requests that the Court appoint a
                receiver to facilitate the sale of the 14327 Hughes Lane residence

       Petitioner was the petitioner and Respondent was the respondent in the prior proceedings

Breach of Contract

       Respondent, without just excuse, has demonstrated a clear ,pr esent, and unconditional

intention not to pay Petitioner the funds due to her pursuant to the terms of the Agreed Final Decree

of Divorce As a r esult of this anticipatory breach of contract, Petitioner was forced to cash out a

life insurance policy inPetitioner 's name andincur credit card debt and accruedinter est on such debt

due to delays in Respondent's monthly payments to Petitioner'           Petitioner seeks to recover

consequential damages she was subjected to as a result of Respondent's breach of contract

Clarification
       Petitioner requests that, if the Court finds that any part of the orders sought to be enforced

is not specific enough to be enforced, the Court enter a clarifying order restating the terms of the

order, decree, or judgment in a manner specific enough to allow enforcement and specifying a

reasonable time within which compliance will be required,

Attorney's Fees

       It was necessary for Petitioner to secure the services of Reagan K Vernon and KoonsFuIler,

PC     licensed attorneys, to enforce and protect the rights of Petitioner Respondent should be

ordered to pay reasonable attorney's fees, expenses, and costs, and a judgment should be rendered

in favor of the attorney and against Respondent and be ordered paid directly to the undersigned

SECOND AMENDED PETITIONFOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR
BREACH OF CONTRACT AND FORENFORCEMENI OF INTERIM ORDER ON PETITION FOR
ENFORCEMENT
PAGE 4
                           (




attorney, who may enforce the judgment in the attorney's own name                  Petitioner requests

postjudgment interest as allowed by law

Prayer

         Petitioner prays that citation and notice issue as required by law, that the Court grant the

Petition for Eiiiorcement of Property Division and Petition for Breach of Contract and for'

Enforcement of Interim Order on Petition for Enforcement, for attorney's fees, expenses, costs, and

interest, and for all further relief authorized by law

                                               Respectfully submitted,

                                               KoonsFuller, PC..
                                               1717 McKinney Avenue
                                               Suite 1500
                                               Dallas, Texas 75202
                                               Tel: (214) 871 2727
                                               Fax: (214)8710196


                                               By:_      I            :
                                                  Reagan K. Vernon
                                                  State Bar No., 24081192
                                                  reagan@koonsfuller com
                                                  Attorney for Petitioner

                                  CERTIFICATE OF SERVICE

         Icertify that a true copy of the above was served on each attorney of record or party in

accordance with the Texas Rules of Civil Procedure on September'          _13?2015

                                                         Reagan K Vernon
                                                         Attorney for Petitioner

SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISIONAND PETITION FOR
BREACH OF CONIRACI AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR
ENFORCEMENT
PAGE 5
EXHIBIT F
                            r                                            r                                      Fl -ED
                                                                                                    DALLAS coutlITY
                                                                                                 10/1/2015 4:35:22 PM
                                                                                                       FELICIA PI 'RE
                                                                                                    DISTRICT CLI:RK
                                                                                                             ÿ




                                                                                                  Adrenna James


                                    CAUSE NO. 08-059,32 R

MARY M. MCCAFFERTY,                           S             INTHE DISTRICT COURT
ALANA MCCAFFERTY and
AMANDA MCOAFFERTY

V.                                                          254th DISTRICT COURT OF

JOHN JEFFREY MCCAFFERTY                                     DALLAS COUNTY, TEXAS

           RESPONSE TO (ANTICIPATED) APPLICATION FOR RECEIVER

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, RespondentfCounteÿetitioner, JOHN JEFFREY MCCAFFERTY ,

hereinafter referred to herein as Respondent, and fries this his Response to (Anticipated)

Application for Receiver, and for same would respectfully show the Court as follows:

                                                      I.

       It is anticipated that Petitioner, Mary M McCafferty is going to present an Application

for the appointment of a r eceiver in this matter Pr esumably this will be based upon the
                                                  ,




instrument signed by the Court on December 18, 2013 (entitled "Interim Order on Petition for

Enforcement")

                                                      II.

       Respondent would show the Court that the appointment of a receiver here would be

violative of law, Inthis regard, Respondent would show the following:

       A) The Divorce Decree in this case provides in pertinent part as follows:

       "MaritalResidence

      ITISFURTHER ORDERED AND DECREED that the pr operty andall improvements
      locatedthereon at lot 40 block 1/8175, Williamsburg At Preston An Addition to the City
      of Dallas According to the Plat thereof recordedin Volume 78090 Page 1397, Map
      Records of Dallas County, Texas, and more commonly known as 14327 Hughes Lane
      Dallas, Texas 75254, hereinafter "Property" shall be soldunder the following terms and
      conditions


Response to (Anticipated) Application for Receiver Page 1    -
                          (



       I The JOHNJEFFREY McCAFFERTY shalllist the property -with a duly licensedteat
          estate broker having sales experience in the area where the property is located
       2 The property shall besoldfor aprice as determined by JOHNJEFFREY
          McCAFFERTY. MARYMICHEL1NEMcCAFFERTY shall receive $509,000. 00 as
          her share of the community property To ensure compliance of the monies due MARY
          MICHELINE McCAFFERTY, title to the Proper ty .shall not tr ansfer untilsuch time as
          MARYMICHELINEMcCAFFERTYhas received her communityproperty due or
          contemporaneous with a Nosing of the Property. ITISORDERED MARY
          MICHELINEMcCAFPERTYshall remove her name from the title to the Property
          upon receipt of her community property due ITISORDERED MARYMICHELINE
          McCAFFERTY shall sign a Special Warranty Deedremoving her name from title to
          the Property contemporaneous with the receipt of her share of the community
          property describedherein
       3. JOHNJEFFREY McCAFFERTYshall continue to make allpayments ofprincipal,
          interest, taxes andinsurance on the property during the pendency of the sale and
          JOHNJEFFREY McCAFFERTY shall have the exclusive right to enjoy the use and
          possession of the premises until closing All maintenance and minor repairs
          necessary to keep the property in its present condition shall be paid by JOHN
          JEFFREY McCAFFERTY
       4. The net sales proceeds (defined as the gross sales price less cost of sale andfull
          payment of any mortgage indebtedness or liens on the property) shall be distributed
          as follows
              a $509, 000 00 to MARYMICHELINEMcCAFFERTY (The parties agree the
                  $509, 000, 00 is comprised (sic) of Wife 's share of the community property of
                  $434,000.00from the equity of the marital residence, $45,000 00 to help her
                  pay her credit cards in her name, $15, 000 00 towards ALANA NICOLE
                  McCAFFERTY's automobile and $15,000 00 towards MARYMICHELINE
                  McCAFFERTY automobile) Notwithstanding the forgoing language, JOHN
                  JEFFREY McCAFFERTY shall be reimbursedfrom the $509,000 00 due
                  MARYMICHELINE McCAFFERIY limitedto the following amounts

                     1 Monies paid Wife by Husbandafter divorce as an advance on her
                       $509,000. 00 The advance on the $509,000 00 shall be defined by the
                       amount Husbandpays Wife after divorce in the contemplated amount
                       of$4, 000 00per monthpayable each 15th of the month The parties
                       hereby agree the intent of the parties is Wife have monies until she
                       receives her share of the communityproperty from JOHNJEFFREY
                       McCAFFERTY, and
                     2 Health insurance payments paidby Husbandfor Wife after divorce,
                       and
                     3 Only in the event ALANA McCAFEERTY elects to keep the black
                       VOLVO, then $25,000. 00 shall be deductedfrom the $509,000 00
                     4 No other deductions from the $509, 000 00 shall be allowed,

             b   Any balance of the netproceedsfrom the sale of the Property shall be paidto
                 JOHNJEFFREY McCAFFERTY ITIS ORDEREDJOHNJEFFREY


                                                     -
Response to (Anticipated) Application for Receiver Page 2
                 McCAFFERTYmay exercise his option to buy the Property. In the event
                 JOHNJEFFREY McCAFFERTYexercises his right to buy the Property,
                 MARY M1CHELINEMcCAFFERTY nevertheless shall receive her share of
                 the community property as identified inparagraph 4(a) of the paragraph
                 titled "MaritalResidence " but subject to said deductions identifiedtherein IT
                 IS ORDERED MARYMICHELINE McCAFFERTYshall cooperate in the
                 refinancing or purchase of the marital residence by JOHNJEFFREY
                 McCAFFERTY in the event he chooses to exercise the option to bÿy
               c It is the agreement of the parties that JOHNJEFFREY McCAFFERTY shall
                 pay MARYMICHELINEMcCAFFERTYfour thousanddollars ($4,000 00)
                 per month untilthe Property is sold or she receives her share of the
                 community property identifiedhereinand such $4,000. 00per month shall be
                 an offset against the $509, 000 00 due MARYMICHELINE McCAFFERY "

       B) The instrument signed by the Court on December 18,2013 (entitled "Interim Order
          on Petition foi Enforcement") provides as follows:

          "i John Jeffrey McCafferty will wire transfer or direct deposit into Mary M
             McCafferty 's bank account with Capital One Bankthe following sums
             $15,000 00 on November 12, 2015, $10,000 00 on December 15, 2015, and
             $10,000 00 on January 15, 2014 John Jeffrey McCafferty anticipates that the
             home at 15527 Hughes Lane, Dallas, Texas, will be listedfor sale by February 1,
             2014 Untilthe house is listedfor sale, John Jeffrey McCafferty will continue to
             pay Mary M McCafferty the sum of $10, 000, 00 on the 15 day of each month
          2 After the date the house is listedfor sale, John Jeffery McCafferty will wire
             transfer or direct deposit the sum of $6,000 00 per month on the 15th day of each
             month to Mary M McCafferty The account number was providedto John Jeffrey
             McCafferty in a separate document and will be used by him only for the purpose
             of the transfer of the money and no other purpose of any kind John Jeffrey
             McCafferty will not share or publish the account number to anyone other than
             Bankpersonnel and solely for the purpose of the transfer of the money. John
            Jeffrey McCafferty willpay any and all costs associated with the transfer of the
               money.
          5,   Ifthe 15th day of any monthfalls on a Saturday or a Sunday, John Jeffr ey
            McCafferty will wire or direct deposit the money into Mary M McCafferty 's
            account on the precedingFriday
          4 IfJohn Jeffrey McCafferty fails to deposit or wire the money in the amounts or on
            the dates listedabove, uponproofprovidedto his attorney and to the Court, a
            receiver will immediately be appointed to list the house at 14527 Hughes Lane,
            Dallas, Texas for sale Nor further court hearings will be necessary to appoint
            the receiver Providedthat evidence has beenprovidedto John Jeffrey
            McCafferty *s counsel that John Jeffrey McCafferty has failed to deposit or wire
            the money in the amounts and/or on the dates listedher einabove, then, in that
            event Mary McCafferty's attorney will be fully authorized by this Order to present
            an Order Appointing Receiver to the Court for signature without further notice to
            or agreement by John Jeffrey McCafferty or by counselfor John Jeffrey



                                                      -
Response to (Anticipated) Application for Receiver Page 3
                                                                         f




              McCafferty.
            5 All amounts received by Maty M McCafferty under this Interim Order are to be
              credited against the obligations owed by John Jeffr ey McCaffer ty under the
              Decree ofDivorce datedJuly 17, 2009. "

       C) Family Code § 9 007 provides as follows:

           "(a) A court may not amend, modify, alter, or change the division ofproperty made or
           approved in the decree of divorce or annulment An order to enforce the division is
           limitedto an order to assist in the implementation of or to clarify the prior order and
           may not alter or change the substantive division ofproperty
           (b) An order under this section that amends, modifies, alter, or changes the actual,
           substantive division ofproperty made or approved in afinal decree of divorce or
           annulment is beyond the power of the divorce court and is unenforceable "

       As the December 18, 2013 instrument amends, modifies, alters and changes the division

of pr operty made and approved in the decree of divorce, that same is beyond the power of the

divorce Court and is unenforceable

       WHEREFORE PREMISES CONSIDERED, Respondent respectfully requests that the

Court deny an application for the appointment of a receiver, and for such other and further relief,

at law or equity general or special, to which Respondent may show himself justly entitled.

                                             Respectfully submitted,
                                             LAW OFFICES OF FRANK SHOR

                                             /s/ Frank Shor
                                             Frank Shor
                                             State Bar No 18294700
                                             1620 East Belt Line Road
                                             Caxrollton, Texas 75006
                                             (972) 242-8887 OFC
                                             (972)446-7976 FAX
                                             FrankShorLawFirm@gmail.com


                                             ATTORNEY FOR
                                             TOHN JEFFREY MCCAFFERTY




                                                       -
Response to (Anticipated) Application for Receiver Page 4
                            (




                                      Certificate of Service

          I'ias is to certify that a true and correct copy of the above and foregoing was forwarded
 via e-frle to Ms. Reagan Vernon, attorney for Petitioner/Counter-Respondent, at 1717 McKinney
 Avenue, Suite 1500, Dallas, Iexas 75202,on this the   fr          day of October, 2015

                                              /$/ Frank Shot
                                              Frank Shoi




                                                       -
Response to (Anticipated) Application for Receiver Page 5
EXHIBIT G
                                                                                                                     FILED
                                                                                                          DALLAS COUiHTY
                                                                                                       10/9/20151:09:02 PM
                                                                                                             FELICIA PI RE
                                                                                                          DISTRICT CLIRK

                                                                                                       Paul Eagle

                                     CAUSE NO. 08-05932-R

MARY M. MCCAFFERTY,                            §          INTHE DISTRICT COURT
ALANA MCCAFFERTY and                           §
AMANDA MCCAFFERTY                              §

V.                                                        254th DISTRICT COURT OF

JOHN JEFFREY MCCAFFERTY                        §          DALLAS COUNTY, TEXAS

                                 FLEA TO THE JURISDICTION

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, Respondent/Countex-Petitionei, JOHN JEFFREY McCAFFERTY,

hereinafter referred to herein as "Movant", and files this his Piea to the Jurisdiction and for same

would respectfully show the Court as follows:

                                                    L

         Ostensibly, Petitioner, Mar y McCafferty, is requesting the Court to appoint a Receiver

for purposes of facilitating the sale of apiece of real estate owned jointly by Petitioner, Mary

McCafferty and Movant



                                                   II.

         It is further presumed that Petitioner, Mary McCafferty's request (for the application of

the appointment of a Receiver) is predicated upon the instrument entitled "Interim Order on

Petition for Enforcement" and dated December 18, 2013



                                                   III.

        It will be shown to the Court that the terms of that instrument amends, modifies, alters or

changes the terms of the Movant and Petitioner, Mary McCafferty's Divorce Decree



Plea to the Jurisdiction                                                                      Pagel
                              f




                                                 IV.

         As a result thereof, the instrument entitled "Interim Older on Petition for Enforcement: is

unenforceable. Iherefore, the Court lacks jurisdiction to giant the relief requested in Petitioner,

Mary McCaffeity's application for the appointment of a Receiver

         WHEREFORE PREMISES CONSIDERED, Movant prays that the Court deny

Petitioner, Mary McCaffeity's application for the appointment of a Receiver and grant Movant

such other and further relief, at law or in equity, general or special, to which Movant may show

himself justly entitled

                                               Respectfully submitted,
                                               LAW OFFICES OF FRANK SHOR

                                              A/ Frank Shor
                                              Frank Shor
                                              State Bar No 18294700
                                              1620 East Belt Line Road
                                              Canollton, Texas 75006
                                              (972)242-8887 OFC
                                              (972) 446-7976 FAX
                                              FrankShorLawFirm@gmail.com


                                              ATTORNEY FOR IEFF McCAFFERI Y



                                       Certificate of Service

         This is to certify that a true and correct copy of the above and foregoing was forwarded
via e-file to Ms Reagan Vernon, attorney for Petitionei/Counter-Respondent, at 1717 McKinney
Avenue, Suite 1500, Dallas, Texas 75202,on this the 3ÿ' day of October, 2015.

                                              A/ Frank Shor
                                              Frank Shot




Plea to the Jui isdiction                                                                     Page 2
EXHIBIT H
                                                              1


 1                         REPORTER'S RECORD
                         VOLUME 1 OF 1 VOLUME
 2                 TRIAL COURT CAUSE NO. DF-08-05932

 3   MARY MCCAFFERTY, ET AL                IN THE JUDICIAL

 4   vs.                                   DISTRICT COURT NO. 254

 5   JOHN JEFFREY MCCAFFERTY               DALLAS COUNTY, TEXAS

 6
 7
 8
 9
10                           STATEMENT OF FACTS

11

12                       MOTION TO APPOINT RECEIVER

13

14
15
16
17

18
19         On the 15th day of October, 2015, the following

20   proceedings came on to be held in the above-titled
21   and numbered cause before the Honorable Susan
22   Rankin, Judge Presiding, held in Dallas, Dallas
23   County, Texas   .
24         Proceedings reported by computerized stenotype
25   machine   .
                                              2



 1                        APPEARANCES

 2
     MS. REAGAN VERNON
 3   SBOT NO. 24081192
     KoonsFuller, P.C.
 4   1717 McKinney Avenue
     Suite 1500
 5   Dallas, Texas 75202
     (214) 871 - 2727
 6   FOR THE PETITIONER

 7
 8   MR. FRANK SHOR
     SBOT NO. 18294700
 9   Law Offices of Frank Shor
     1620 E. Belt Line Road
10   Carrollton, Texas 75006
     (214) 242 - 8887
11   FOR THE RESPONDENT/ COUNTER PETITIONER

12

13
14

15
16

17
18

19

20

21
22
23

24
25
 1

 2
 3
 4

 5

 6
 7

 8

 9

10

11
12
13
14

15
16
17
18
19
20

21
22
23

24

25
     October 15, 2015


     Argument by Ms. Vernon

     Argument by Mr     .
     Response by Ms. Vernon

     Response by Mr. Shor

     Court's Ruling
     PETITIONER'S WITNESSES
     REAGAN VERNON
                            Shor




                          Direct
                            14
     Court's Ruling on Attorney's Fees
     Petitioner Rests and Closes
     Argument by Mr     . Shor
     Argument by Ms. Vernon

     Court ' s Ruling       .......
                                 ...
                                ......
     Court Reporter's Certificate..




     REAGAN VERNON
                                      Cross
                                       —




                                            .
                               CHRONOLOGICAL INDEX
                              VOLUME 1 OF 1 VOLUME
                            MOTION TO APPOINT RECEIVER




                                              .


                                                    .


                            ALPHABETICAL WITNESS INDEX

                                   Direct
                                     14
                                            Cross
                                              —
                                                         VD
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                                                              15

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                                                              Page Vol.




                                                                   Vol.
                                                                   1




                                                                   Vol.
                                                                   1
                                                                       4


 1                        PROCEEDINGS
 2                     (October 15, 2015; 8:04 a.m.)

 3                     THE COURT:    Okay.   We're here on the     —       the
 4   issue regarding the receivership, correct?
 5                     MS. VERNON:    Yes, your Honor.
 6                     THE COURT:    Okay.   So that would be      —
 7   let's just go ahead and announce        —   for the record,

 8   counsel   .
 9                  MR. SHOR:        Judge, I'm Frank Shor here on
10   behalf of respondent/counter petitioner

11   John Jeffrey McCafferty.
12                  And, Judge, if Ican just ask for a little
13   more precision.     Ibelieve it's an application for

14   receiver predicated upon an instrument labeled "Interim
15   Order" that was signed in December of 2013.         That's what I
16   understand we're here on today.
17                  THE COURT:       Counsel, your appearance for
18   the record and then a comment.
19                  MS. VERNON:       Reagan Vernon here on behalf

20   of Mary McCafferty, the petitioner in this case.         And,
21   yes, it's my understanding that this hearing is to

22   determine the enforceability of that interim order.
23                  THE COURT:       Are you in agreement with the

24   way that was phrased, Mr. Shor?

25                 MR. SHOR:        Yes, your Honor.
                                                                 5



 1                     THE COURT:    Okay.   Go ahead and proceed.

 2   I'm going to call you Reagan.

 3                    MS.. VERNON:    That's fine, your Honor.

 4                     THE COURT:    Go ahead.

 5                    MS. VERNON:     Your Honor, the interim order

 6   in question is enforceable because this is an agreed
 7   order.     It was agreed to by the parties.     It specifically

 8   says in the order "the parties agree and it is ordered."

 9                    And unless the provisions that are
10   applicable to my appearance here today, which is to get a
11   receivership over the house, the parties agree to modify
12   their decree and they outline those modifications in that
13   order.
14                     They both signed the decree, they're both
15   represented by counsel, and their counsel signed that
16   order.     The allegations that it is unenforceable or that
17   it's void based on 9.007 of the Family Code is wholly
18   unapplicable in this case because that's based on if the
19   Court modifies or does more to change the provisions in

20   a party's decree, then, yeah, it would be void if it

21   really was a substantial modification that the Court
22   ordered.

23                    But in this case, Idon't even believe that

24   even if the Court had patently ordered what was in the
25   interim order that it would be void under that section.
                                                            6


 1   But, nevertheless, they agreed to it. And so that 9.007

 2   discusses that the Court can't make those modifications,
 3   but here we have an agreement by the parties, an agreement
 4   by Mr. McCafferty to make certain payments.

 5                  He has failed to make payments, not only

 6   under the decree which gave rise to this action, but also
 7   under these interim orders.   And as a result, the
 8   punishment is coming down.
 9                  You don't make the payments, I'm permitted

10   to come down here without the necessity of the hearing,

11   which is what we're doing here today because he's trying
12   to fight this agreement he made and the modifications he

13   made to the decree for me to come down here and get
14   a receivership if he misses these payments.   And so under
15   that agreement, I'm allowed to come down here and present

16   you with an order.

17                  And that's the end of it, so that my client

18   doesn't have to continue to incure fees to come and

19   enforce orders that we knew he would end up violating,
20   which is why we have those provisions in that order that
21   allows me to come down here without the necessity of
22   a hearing, without the necessity of a motion, to just have
23   an order appointing a receiver.

24                  And that was agreed to by his client.   And
25   _
     now that he's missing payments, he's corning here to
                                                                    7



 1   complaint to you, Judge, saying, "No, the order is void-
 2   It's unlawful modification- 11      But no, no, no, no, you

 3   agreed to this.     And this is an agreement made two years
 4   ago, and this is the first time we're hearing him complain
 5   today.
 6                     And now my client is incurring fees, which

 7   I'm requesting here today, your Honor.

 8                     THE COURT:     Do you have an extra copy of

 9   the order that you're going to enforce, Counsel?

10                     MS. VERNON:     Yes, your Honor, Ido.        Ialso

11   have a brief that Ican provide you because Ithink it was
12   e-filed today..    And so I'm sure it's not on your system
13   yet.

14                     THE COURT:     You were up early if you

15   e-filed it today.
16                     MS. VERNON:     Iknow you probably have that

17   order, too.
18                     May Iapproach, your Honor?

19                     THE COURT:     Yes, please.    Thank you.
20                     MS,. VERNON:    Here's the    — here's the
21   brief.
22                     THE COURT:     Thank you.
23                     MS. VERNON:    And, Judge, the brief just
24   goes into more detail on what Ijust argued today,

25   provides the case law; but if you'd like me to go further
                                                                 8


 1   into why 9.007 doesn't apply, regardless if there was an
 2   agreement or not, Ijust went ahead and briefed that issue

 3   for you as well.

 4                       THE COURT:    Okay.   Thank you.
 5                       Mr. Shor, your response.

 6                       MR. SHOR:    May Iplease the Court.

 7                       Judge, we filed a plea to the jurisdiction

 8   on October 9th, 2015.       The basis of that plea to the
 9   jurisdiction is certainly 9.007 of the Family Code that
10   says, in essence, an order that alters, amends, modifies
11   the terms of a property division in a divorce decree is

12   unenforceable   .
13                       There are no ifs, ands, buts, or however s.
14   Following the language, the order is unenforceable.         There

15   hasn't been any pleading from the petitioner subsequent to

16   the pleading of the jurisdiction.         And the case law is
17   that one of the ways to raise that which 9.007 provides is
18   by a plea to the jurisdiction that the Court does have the

19   power to enforce an order that alters, amends, or modifies

20   property division in the divorce decree.

21                       And you raise that by a plea to the
22   jurisdiction.       We haven't heard anything from Ms. Vernon

23   as to how this Court has jurisdiction to do that which she

24   is requesting the Court to do based upon the document
25   labeled "Interim Order".
                                                               9


 1                    And Ithink the Court understands this.

 2   But if the risk of being overly anal    — she's    not

 3   requesting a receiver at this time based on the terms of
 4   the divorce decree.    It's merely predicated on the interim

 5   order.   Claxton versus Lake Fork Water Control, 220 S.W.
 6   3d 537 tells us that a party cannot confer or waive
 7   jurisdiction by consent or agreement.
 8                    And, by the way, Iapplaud counsel.      We   —
 9   we exchanged, last evening, the primary cases that each of

10   us were going to be relying upon in presenting our

11   positions to the Court this morning.     So Ibelieve that

12   Ms. Vernon was   aware that I' d be citing this case this
13   morning .
14                    And so jurisdiction is not something that
15   parties can confer.    And so when this instrument entitled

16   "Interim Order, Petition for Enforcement" is agreed to by
17   Mr. McCafferty, he doesn't confer any more jurisdiction in

18   this court than the Court already had.    Idon't want to be

19   so naive as to suggest that perhaps there are some
20   remedies that, are available to the petitioner based upon
21   this interim order.
22                    Arguably, there's an accordance
23   satisfaction claim, which hasn't been pled.    Laches has
24   not been pled as a— as a defense to the plea to the

25   jurisdiction even though Idon't believe that laches would
                                                                 10


 1   apply because you can't confer jurisdiction merely by an

 2   action, except subject manner jurisdiction where if you're
 3   served and you don't answer, if you had this subject
 4   matter jurisdiction by defaulting, you'd waive that.

 5                     We don't have that situation here.      And so
 6   we have a situation where there's an order.          It certainly

 7   alters, amends, or modifies the decree..      And we know that
 8   in two ways.     First, the terms of this interim order call
 9   for increased monthly payments versus the monthly payments
10   in the divorce decree.     So we know that one way.

11                     The second way we know that is because this

12   is the instrument she's relying upon and not the divorce
13   decree for the liens being sought today.       And so, we can
14   talk about this ad nauseam.       Iwant to be sensitive to

15   Court's time and everybody's time.
16                     The Court doesn't have jurisdiction to do
17   what   — what Petitioner   wants based upon this order,.

18                     THE COURT:    Thank you, Mr. Shor.
19                     Response, Ms. Vernon.

20                     MS. VERNON:    Judge, this isn't

21   a jurisdictional question.      The judge   — well, the   Court
22   always has the ability to enforce its orders and enforce

23   agreements   —   property settlement agreements in a divorce

24   decree.   This is an interim order that the parties agreed
25   to.
                                                                  11



 1                      The judge is   —   absolutely has
 2    a jurisdiction to enforce that agreement just as if it

 3    appeared in the divorce decree.       By a virtue of that

 4    argument, that would mean every time we're in an

 5    enforcement case and the parties settle and have
 6    a settlement agreement, one of the parties could say, you

 7    know, "Oh.   No, Judge, you never had jurisdiction because,

 8    you know, we agreed to a modification of our property

 9    settlement agreement, and you don't have jurisdiction
10    anymore to enforce that agreement.
11                      It would just make   —   it makes no sense and
12    it's illogical.    Secondarily, his argument kind of goes
13    into the weeds a little bit about whether or not the
14    interim order is in violation of the 9.007.       We don't even

15    get there, Judge, because they       — parties agreed   to modify

.16   the property settlement agreement.
17                     And so it's not the Court, which is, you

18    know, the Court that's actually modifying the decree.
19    But, alternatively, even if that were the case, let's say

20    they never agreed to it and a judge just rendered thi.s
21    interim order.    It's still enforceable because it's not a
22    substantive modification.
23                     It's simply a clarification to enforce

24    a property settlement agreement and money that she is due
25    and owed and he is in violation of paying her for it. And
                                                                 12


 1   that's    —   that's kind of what Idelve into the secondary

 2   part of my brief is that it's not a        —   the judge is always

 3   welcome to change the method and manner of how somebody
 4   receives a property settlement agreement.
 5                     They can make it   — and the judge well
 6   knows that you can order a receivership to enforce
 7   whatever settlement that my client is due under the decree
 8   on its own.     Imean, we can come in here and do that which

 9   is what was done two years ago and agreed to by the
10   parties along with other provisions that if he failed to
11   make some payments, that Icould come down here without
12   the necessity of a hearing again.
13                     And if the judge would like to hear my

14   testimony as to attorney's fees, I'm happy to do so and
15   prepared to do so because under that agreement, Iwas
16   not   —   under that agreement, Idid not have to come down
17   here and not only defend the agreement but also have
18   a hearing on the appointment of a receivership.

19                     It was supposed to be automatic, and I

20   would just present an order to the Court which would save
21   my client fees in this case.      Thank you.
22                     MR. SHOR:    Now, may Ibrief at one point,

23   your Honor?

24                     THE COURT:   You may..

25                     MR. SHOR:    I'm not arguing that this Court
                                                               13



 1   under no circumstances has the authority to appoint
 2   a receiver.   I'm not arguing that.     I'm arguing that the

 3   Court doesn't have the jurisdiction to order a receiver

 4   based upon this interim order.
 5                  Counsel suggested that the interim order is

 6   merely a clarification.     If it's merely a clarification, I

 7   would agree that that's not an order that would amend,
 8   modify, or alter the division of property.

 9                  But she's not relying upon the decree.

10   She's relying upon the interim order.      If the Court

11   examined the interim order, it calls for monthly payments
12   to be increased either to 6,000 per month or 10,000 per

13   month versus 4,000 per month in the decree.
14                   Ifind it hard to understand how those

15   increased payments don't alter, amend, or modify the
16   property division.   It gets her her money quicker.       That
17   amends, alters, or modifies the decree.      And so, Judge,
18   once again, there are contractural remedies that may be
19   available to the petitioner.
20                  But asking the Court to order a receiver

21   based on the interim order lies on the face of 9.007.
22                  THE COURT:    Okay.    Thank you.   We will be

23   in recess for about ten minutes while Iread the brief.
24                   (Off the record; 8:19-8:29)

25                  THE COURT:    Thank you.    Please be seated.
                                                               14



 1   After reading the plea to the jurisdiction and

 2   respondent's brief and 9.007 and the interim order, the
 3   Court finds that the Court does have jurisdiction to

 4   enforce the agreement of the parties as found in the
 5   interim order on petition for enforcement and orders the
 6   appointment of the receiver.
 7                    Do you have an order, Ms. Vernon?

 8                    MS. VERNON:    Ido.    And also my testimony
 9   on attorney's fees if the Court is       —
10                    MR. SHOR:     I'll waive the oath, your Honor.
11                    THE COURT:    Okay,,   Thank you.   Go ahead and

12   testify.

13                    MS. VERNON:    Okay.   My name is

14   Reagan Vernon.    I'm an attorney licensed to practice in
15   the State of Texas.     My billing rate as specified by my

16   fee contract with my client is $250 per hour.        My

17   paralegal's billing rate is $'140.

18                    I'm familiar with the fair and reasonable,
19   usual and customary fees charged by family lawyers in

20   Dallas County, Texas.     It is my opinion that the

21   attorney's fees incurred by my client pertained to this
22   lawsuit have been reasonable and necessary and reflect the
23   usual and customary fees charged for the same or similar
24   matters   .
25                    I've spent a total of six hours in
                                                               15



 1   preparing for this hearing, including an hour that
 2   allocated to the attendance of this hearing and attending
 3   the last conference, doing      —   conducting legal research,

 4   drafting the brief for the Court in response to the

 5   attempt to invalidate the interim order, conducting

 6   conferences with my client, assigning tasks to my

 7   paralegal, who has spent 30 minutes in assisting me.
 8                    Attorney fees and costs for my client that

 9   are attributable for preparing and attending this hearing

10   totals $1,570.    My client would' ve never incurred $1,570

11   but for Mr. McCafferty's attempt to get this Court to
12   overturn the interim order that specifically states that I

13   didn't have to come down for a hearing on this issue.
14                    It's my opinion that the $1,570 in fees and

15   costs have both been reasonable and necessary in

16   representing my client in this matter and that such fees
17   to be paid by Mr. McCafferty are in conformity with the

18   Texas Rules of Civil Procedure and the Texas Family Code.

19                    THE COURT:     Pass yourself?

20                    MS. VERNON:     Pass myself.

21                    MR.,   SHOR:   Ihave no questions, your Honor.

22                    MS. VERNON:     And may approach with the

23   orders, your Honor?

24                    THE COURT:     You may,.

25                    The Court grants attorney's fees of $1,570
                                                                   16


 1   finding it reasonable and necessary under these

 2   circumstances ..
 3                      MS. VERNON:     Your Honor, I'm presenting two

 4   orders.     One, Ileft blank in case your Honor wanted to

 5   choose the receiver*      The other, Ichose a realtor in the
 6   Dallas County area for where this house is located.               So   —
 7   and Fred Mams told me that you appointed somebody the
 8   other day that you really liked, and so Ijust brought two
 9   different    —
10                      THE COURT:     Do you have an opinion in

11   regards to who the receiver would be, Mr. Shor?

12                      MR. SHOR:     Well, Imay, your Honor.      I'm

13   presuming that the petitioner has rested and closed on
14   this motion.
15                      THE COURT:     Yes.

16                      MS. VERNON:     Yes, your Honor.

17                      THE COURT:     Well, Idon't know if rest and
18   close regarding the motions but, yes, sir.            Go ahead.

19                      MR. SHOR:     Is that correct?

20                      MS. VERNON:     Yes.

21                      MR. SHOR:     Well, if that's correct, your
22   Honor   —   this may seem like sharp practice, but this is
23   what my legal training tells me to say.         The only evidence
24   that's before the Court is that Ms. Vernon has testified
25   as to attorney's fees,
                                                                 17



 1                    There's no evidence before the Court that
 2   that which is required in the interim order        —   and by the
 3   way, Idon't mean to waive my prior argument that the
 4   Court can't enforce it.        The Court understands my
 5   argument.    But if that order is enforceable, there is

 6   still a predicate that has to occur for the receiver to be
 7   appointed under that order, and that hasn't been proven.
 8                    THE COURT:     Mr. Shor, Iknow exactly what

 9   you're talking about; but in my opinion, you waived that

10   argument when we started this proceeding because you never

11   stated that your client wasn't behind,.

12                    MR. SHOR:      Idon't believe the burden of

13   proof is on me, Judge, to prove their       — the matters that
14   they need to prove.        Now, we do have a trial setting

15   November 12th.    So   —
16                    THE COURT:     On other issues?

17                    MR. SHOR:     On the merits of this case.

18                    THE COURT:     Okay.   I'm still on the
19   appointment of the receiver.       Iunderstand your argument

20   but I'm overruling the objection.
21                    MR. SHOR:     Well, Judge, if — if you want
22   to hear from me regarding either of these proposed orders,

23   they call for the parties to sign any real estate listing
24   agreement.   That could compel these parties to sign
25   a lease agreement that calls for property to be sold for
                                                                  18


 1   $1.

 2                     And I —     Idon't think that that's what the

 3   petitioner wants.     It's certainly not what the respondent
 4   wants.   And the property is listed for about

 5   $1,399 million right now.        Hasn't sold.     But that's what

 6   it's listed for.     But this doesn't set a base as to what

 7   it can be sold for, and Isuggest that either one of these
 8   orders could cause a— a forfeiture for these people.
 9                     MS. VERNON:     The realtors owe their clients
10   fiduciary duties.     And they have an interest in selling
11   the house for as much as they can because they get a
12   percentage off of that.        And that's where their fees will
13   come out for being a receiver      .
14                     THE COURT:     Iunderstand that but the

15   phrase that Mr. Shor specifically is pointing out is
16   signing any real estate listing agreement can leave these
17   parties wide open to a lot of problems, to put it lightly.
18                     MS. VERNON:     Imean, I'm happy to write in

19   that they    —   if it's currently listed, you know — Imean,
20   it's been listed three times now.        So I'm sure that the

21   contract,   that currently exists, and if it's truly at 1.3,
22   then that's fine.     We can sign a listing agreement that is

23   listed for 1.399 if that's what it is.
24                     Imean, he already agreed to it.

25                     MR. SHOR:     That's correct.
                                                                19



 1                   THE COURT:     Is that agreeable to you

 2   Mr. Shor, 1.399?

 3                  MR. SHOR:      Judge, that's a much better term
 4   to have in this order than     —   when you say it's agreeable
 5   to me, I'm opposing this order.

 6                   THE COURT:    Well, under duress.
 7                  MR. SHOR:      I'm opposing the Court from
 8   signing this order.   But that at least addresses the
 9   possibility of there being a forfeiture here.
10                  THE COURT:     Why are you asking for the

11   appointment of two receivers?
12                  MS. VERNON:      They work together and they're
13   part of their own realtor group.       It's just going to be      —
14                  THE COURT:     Do they share the fee or do
15   they ask for more fees?

16                  MS. VERNON:      They're   —   it's just going to
17   be the one.   Ithink Ishould 've put "or," Isuppose..           I

18   haven't spoken to all three..      In terms of just   —   Ijust

19   suggested those people because they've done it before for
20   our firm in the past and work well in this area; but they

21   all work well together   .   So Isuppose Ishould say "or     ."
22                  It's just that they're found as good
23   receivers — qualified receivers but not to be appointed
24   together.
25                  THE COURT:     Okay.   I've modified the order
                                                               20


 1   to state that it's Eve Sullivan or Shelly Tillery.        Then I
 2   have stated that they will sign a real estate listing
 3   agreement that lists the property initially at

 4   1.399 million.    And Ihave ordered to attorney's fees to

 5   be paid on or before 11/1/15 at Mrs. McCafferty's
 6   residence   .
 7                    And I've taken out the last line that said
 8   they may enforce by contempt if the parties do not
 9   cooperate   .
10                    MR. SHOR:     Judge , there's another phrase

11   that Ithink needs a little bit of massaging.
12                    THE COURT:    What is that?
13                    MR. SHOR:     The paragraph second from the
14   bottom.     It is further ordered that Eve Sullivan or

15   Shelly Tillery   —   I'm saying "or" because Ithink the
16   Court   —
17                    THE COURT:    Correct.

18                    MR. SHOR:     —   are authorized to manage,

19   control, and dispose of the property as they see fit in

20   their sole discretion.       Ithink it should be something

21   like in accordance with the listing agreement or some
22   qualifier   .
23                    MS. VERNON:    That's fine with me, Judge.
24   Another point:    Mr. McCafferty does not know where my

25   client resides because there was      —   back when they were
                                                             21


 1   interacting.

 2                  THE COURT:    Okay.    So where do we want this

 3   sent, then?

 4                  MS. VERNON:    It can be just sent back to my

 5   office.
 6                  THE COURT:    Okay.     I've made the
 7   adjustments that we've stated.       I'm going to make a copy

 8   for you-all.

 9                  (Proceeding ended; 8:42 a,.m.)

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                                                            22



 1    STATE OF TEXAS

 2    COUNTY OF DALLAS

 3         I, Janet Saavedra, Official Court Reporter in

 4    and for the 254th Judicial District Court of Dallas
 5    County, State of Texas, do hereby certify that the

 6    above and foregoing contains a true and correct
 7    transcription of all portions of evidence and other

 8    proceedings requested in writing by counsel for the
 9    parties to be included in this volume of the
10    Reporter's Record, in the above-styled and numbered
11    cause, all of which occurred in open court or in
12    chambers and were reported by me.
13         X further certify that this Reporter's Record

14    of the proceedings truly and correctly reflects the
.15   exhibits, if any, admitted by the respective
16    parties.   Ifurther certify that the total cost for

17    the preparation of this Reporter's Record is $176
18    and was paid by Mr. Frank Shor, attorney for the

19    Respondent/ Counter Petitioner.
20         WITNESS MY OFFICIAL HAND this the 30th day of

21    October, 2015.

22
23                             Janet Saavedra, Texas CSR #9160
                               Expiration Date: 12/31/2017
24                             Official Court Reporter
                               254th Judicial District Court
25                             Dallas, Texas 75202
                                          —
                               Telephone: 214)653 - 6602   -
