                                                                                               ACCEPTED
                                                                                          13-15-00081-CV
                                                                          THIRTEENTH COURT OF APPEALS
                                                                                 CORPUS CHRISTI, TEXAS
                                                                                    11/23/2015 4:08:14 PM
                                                                                         Dorian E. Ramirez
                                                                                                    CLERK

        FILED                       CAUSE NO. 13-15-00081-CV
IN THE 13TH COURT OF APPEALS
        CORPUS CHRISTI
                     IN THE THIRTEENTH COURT OF APPEALS OF TEXAS
                                                        RECEIVED IN
         11/23/15                                13th COURT OF APPEALS
                                              CORPUS CHRISTI/EDINBURG, TEXAS
DORIAN E. RAMIREZ, CLERK      STATE OF TEXAS     11/23/2015 4:08:14 PM
BY DTELLO
                                                   DORIAN E. RAMIREZ
                                                          Clerk
        ____________________________________________________________

                         APPEAL FROM COUNTY COURT AT LAW NO. 2
                                 HIDALGO COUNTY, TEXAS
                             PRESIDING JUDGE JAY PALACIOS

          ___________________________________________________________

                               JUAN GABRIEL ESPRONCEDA, Appellant

                                              VS.

                                   SYLVIA SUE HANDY, Appellee

         ____________________________________________________________

                                     APPELLEE’S FIRST BRIEF

         ____________________________________________________________

                                                    Respectfully submitted,

                                                    Victoria Guerra
                                                    3219 N. McColl Rd.
                                                    McAllen, Texas 78501
                                                    (956) 618-2609
                                                    (956) 618-2553 (fax)
                                                    State Bar Number: 08578900
                                                    Appellee’s Attorney
                IDENTITY OF PARTIES AND COUNSEL

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

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

counsel:

APPELLANT:                  Juan Gabriel Espronceda

TRIAL COUNSEL               Oscar Alvarez
                            600 South 11th Street
                            McAllen, Texas 78501
                            (956)686-6330

APPELLATE COUNSEL           Victoria Guerra
                            3219 N. McColl Rd.
                            McAllen, TX 78501
                            (956) 618-2609 (phone)
                            (956) 618-2553 (fax)
                            vguerralaw@gmail.com (email)

APPELLEE:                   Sylvia Sue Handy

TRIAL COUNSEL               Robert J. Salinas
                            Roel Gutierrez
                            2101 Wood Avenue
                            Donna, Texas 78537


APPELLATE COUNSEL           Pro se




                                     ii
                 TABLE OF CONTENTS

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

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

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

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

STATEMENT OF THE CASE………………………………………………vii

ISSUES PRESENTED………………………………………………………viii

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

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

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

CONCLUSION………………………………………………………………..16

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

CERTIFICATE OF COMPLIANCE………………………………………….17




                        iii
                                   INDEX OF AUTHORITIES


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

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276
 (Tex. 1998) .............................................................................................. 7

CA Partners v. Spears, 274 S.W.3d 51 (Tex. App.—Houston [14th Dist.]
 2008, pet. denied.) ................................................................................... 6

Chafino v. Chafino, 228 S.W.3d 467
 (Tex. App.—El Paso 2007, no writ) ........................................................ 14

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

Crisp v. Security National Insurance Company, 369 S.W.2d 326
 (Tex. 1963). ..................................................................................... 11, 13

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

Domangue v. Domangue, No. 12-04-00029-CV, 2005 Tex. App. LEXIS
 6097 (Tex. App.—Tyler Aug. 3, 2005, no pet.) ......................................... 8

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238
 (Tex. 1985). ........................................................................................... 14

Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc.,
 960 S.W.2d 41 (Tex. 1998). ..................................................................... 7

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

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

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

Micklethwait v. Micklethwait, 2007 Tex. App. LEXIS 5086
 (Tex. App.—Austin June 27, 2007, pet denied)...................................... 15

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

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

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

Ragsdale v. Progressive Voters League,
 801 S.W.2d 880 (Tex. 1990) .................................................................... 8

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

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

Rosenfield v. White, 267 S.W.2d 596 (Tex. Civ. App.—Dallas 1954, writ
 ref’d n.r.e. ........................................................................................ 11, 13

Shaw Tank Cleaning Co. v. Texas Pipeline Co., 442 S.W.2d 851
 (Tex. Civ. App.—Amarillo 1969, writ ref’d n.r.e.) .............................. 11–13

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

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

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

Zeifman v. Michels, 212 S.W.3d 582
 (Tex. App.—Austin 2006, pet. denied). .................................................. 15

RULES
Texas Rules of Civil Procedure

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

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

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

Texas Rules of Appellate Procedure

9.4(i)(3) ..................................................................................................... 17
                                                        v
       STATEMENT REGARDING ORAL ARGUMENT

Appellant does not request oral argument.




                              vi
                       STATEMENT OF THE CASE

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

after a bench trial. (CR 146–63).

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

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

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

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

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

notice of appeal on March 2, 2015.

       Trial Court Disposition: The trial court rendered judgment by

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

63).




                                     vii
                   ISSUES PRESENTED

ISSUE 1 (Restated): Due process of law under the Texas
Constitution and the United States Constitution was
violated when the Trial Court heard and ordered child
support arrearages in the amount of $ 4,000.00.

ISSUE 2 (Restated): Due process of law under the Texas
Constitution and the United States Constitution was
violated when the Trial Court heard and ordered that
Appellant pay to Appellee an amount of $ 300,000 which
represents the replacement value of property that
Appellant purportedly took.

ISSUE 3: The Uncontradicted Testimony of Appellee at the
Hearing of August 11, 2014 (2R), which Served as the Sole
Basis for the Final Decree of Divorce, Entered on
November 21, 2014 (C146–63), Did Nothing More Than
Raise a Fact Issue Because the Testimony was Confusing,
Unreasonable and Its Credibility was Questionable and the
Lower Court’s Reliance on it as the Basis for the Final
Decree of Divorce Not Only Constitutes Error, it
Constitutes a Fundamental Abuse of its Discretion

ISSUE 4: The evidence was legally insufficient to support
the Trial Court’s judgment that Appellant should pay to
Appellee $ 300,000.00 within three (3) months of the
signing of the decree.

ISSUE 5: Because the Record is Devoid of any Reliable
and Credible Testimony by Appellee, There Was
Insufficient Evidence Upon Which the Trial Court Could
Exercise Its Discretion, Compelling the Conclusion that the
Trial Court Abused Its Discretion, as a Matter of Law, by
Entering the Final Divorce Decree




                            viii
                         STATEMENT OF FACTS

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

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

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

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

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

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

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

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

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

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

testimony and the documentary evidence admitted into evidence in trial are

credible and reliable and whether there exists legal and factually sufficient

evidence to support the judgment of the Trial Court.

                     SUMMARY OF THE ARGUMENT

     Due process of law under the United States Constitution and the

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

on issues of retroactive child support and replacement value of property

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

of said arguments as they were not plead in Appellee’s pleadings.
      Appellee’s testimony, though uncontradicted, was so confusing,

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

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

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

insufficient to support the judgment of the Trial Court.

      The Trial Court abused its discretion in ordering retroactive child

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

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

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

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

an unfair windfall.




                                       2
                        ARGUMENT AND AUTHORITIES

        ISSUE 1 (Restated): Due process of law under the Texas
        Constitution and the United States Constitution was
        violated when the Trial Court heard and ordered child
        support arrearages in the amount of $ 4,000.00.

        ISSUE 2 (Restated): Due process of law under the Texas
        Constitution and the United States Constitution was
        violated when the Trial Court heard and ordered that
        Appellant pay to Appellee an amount of $ 300,000 which
        represents the replacement value of property that
        Appellant purportedly took.

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

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

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

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

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

party     information    sufficient   to       enable   him   to   prepare   a

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

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

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

R. CIV. P. 301

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

Fourteenth Amendment to the United States Constitution and due course of

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


                                           3
allegations brought against Appellant and the opportunity to present his

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

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

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

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

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

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

Constitution can provide greater protections than the due process clause of

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

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

protections that those under the United States Constitution. See Michigan

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

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

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

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

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

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

Appellant   information   sufficient   to   enable   him    to   prepare   a

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

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


                                       4
conform to the pleadings. Cunningham, 660 S.W.2d at 812 citing Tex. R.

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

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

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

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

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

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

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

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

property that was purportedly taken by Appellant.

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

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

process of law.

                          LEGAL SUFFICIENCY

Standard of Review:

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

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

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

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

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


                                     5
that, in reviewing "no evidence" point, court views evidence in light that

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

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

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

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

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

of reasonable disagreement, an appellate court may not substitute its

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

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

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

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

reasonable inference that supports them, it may not disregard evidence

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

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

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

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

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

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

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

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


                                       6
provided, the implied findings may be challenged for legal and factual

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

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

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

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

(Tex. 1990).

      Under a legal sufficiency standard reviewing courts must consider all

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

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

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

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

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

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




                                      7
        ISSUE 3: The Uncontradicted Testimony of Appellee at the
        Hearing of August 11, 2014 (2R), which Served as the Sole
        Basis for the Final Decree of Divorce, Entered on
        November 21, 2014 (C146–63), Did Nothing More Than
        Raise a Fact Issue Because the Testimony was Confusing,
        Unreasonable and Its Credibility was Questionable and the
        Lower Court’s Reliance on it as the Basis for the Final
        Decree of Divorce Not Only Constitutes Error, it
        Constitutes a Fundamental Abuse of its Discretion

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

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

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

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

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

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

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

App.—Tyler Aug. 3, 2005, no pet.).

        At the trial of this cause,1 Appellee testified that she received a Fen-

Phen settlement which Appellee classified as her sole and separate funds

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

        1
          Appellee requests that this Court take judicial notice of Appellant’s convicted crimes of moral turpitude
which should have a bearing on her lack of credibility in this case. In the United States District Court of the
Southern District of Texas, McAllen Division in cause number 7:09-CR-00396-1, the Appellee served a 30-month
term in the Federal Bureau of Prisons with a 1-year term of supervised release for the charges of making a false
statement on a tax return and conspiracy to conceal or harbor aliens.

         Appellee also received a probated sentence in the 139th Judicial District Court of Hidalgo County, Texas in
cause number CR-469111-C wherein she was charged and convicted in a multi-count indictment of offenses
including: theft of property less than $200,000 (1st degree felony) and several counts of securing execution of a
document by deception.

                                                         8
Maverick Market in Donna. 2R15. All the property was missing when she

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                      9
who was 16 years old at the time of the trial of this cause, was a very smart

person who was an honor student. 2R77.

      It is unbelievable that Appellee spent almost equal amounts of money

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

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

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

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

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

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

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

      Because the Appellee’s testimony was riddled with inaccuracies and

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

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

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

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

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

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

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

proceedings.

      ISSUE 4: The evidence was legally insufficient to support
      the Trial Court’s judgment that Appellant should pay to
                                      10
      Appellee $ 300,000.00 within three (3) months of the
      signing of the decree.

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

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

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

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

      Replacement value is defined as the cost of replacing the injured

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

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

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

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

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

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

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

replaced, replacement costs are the proper measure of damages

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

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

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

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

(Tex. 1963).



                                      11
       It is unlikely that the replacement value will exactly equal the value of

the injured article. When the replacement cost might provide some

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

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

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

replacement value include whether the replacement will last longer than the

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

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

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

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

855.

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

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

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

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

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

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

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

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

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


                                       12
figure of $ 300,000. 2R62.    Appellee wants Appellant to have supervised

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

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

      Appellee expects brand new items to replace the items that went

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

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

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

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

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

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

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

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

applying the replacement value standard does not represent a fair measure

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

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

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

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

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

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

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


                                      13
       ISSUE 5: Because the Record is Devoid of any Reliable
       and Credible Testimony by Appellee, There Was
       Insufficient Evidence Upon Which the Trial Court Could
       Exercise Its Discretion, Compelling the Conclusion that the
       Trial Court Abused Its Discretion, as a Matter of Law, by
       Entering the Final Divorce Decree

       The Abuse of Discretion standard of review is the generally

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

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

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

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

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

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

abuse of discretion is not determined according to whether the reviewing

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

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

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

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

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

472.

       To determine whether an abuse of discretion occurred, a reviewing

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

sufficient information upon which to exercise its discretion and whether the
                                       14
trial court erred in its application of discretion. Zeifman v. Michels, 212

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

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

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

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

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

2007, pet denied).

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

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

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

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

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

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

      The Trial Court also abused its discretion when it ordered that

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

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

constitutes a windfall to Appellee.

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

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

issues at hand.


                                      15
                       CONCLUSION AND PRAYER

      Appellant prays that this Court reverse the judgment of the Trial

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

correct measure of damage and remove the retroactive child support order

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

entitled.

                                    Respectfully Submitted,

                                    Law Office of Victoria Guerra
                                    320 W. Pecan Avenue
                                    McAllen, Texas 78501
                                    (956) 618-2609
                                    (956) 618-2553 (fax)

                              By:   /s/ Victoria Guerra
                                    Victoria Guerra
                                    State Bar No. 08578900
                                    Attorney For Appellee, Ms. Ibarra

                       CERTIFICATE OF SERVICE

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

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

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

November, 2015.

                                           /s/ Victoria Guerra
                                           Victoria Guerra




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                     CERTIFICATE OF COMPLIANCE

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

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

is 3,408.

                                           /s/ Victoria Guerra
                                           Victoria Guerra




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