                                                                                     ACCEPTED
                                                                                 06-15-00038-CV
                                                                      SIXTH COURT OF APPEALS
                                                                            TEXARKANA, TEXAS
                                                                           10/20/2015 4:54:33 PM
                                                                                DEBBIE AUTREY
                                                                                          CLERK

                         NO. 06-15-00038-CV

                                                                FILED IN
                       **************                    6th COURT OF APPEALS
                                                           TEXARKANA, TEXAS
                                                         10/21/2015 8:22:00 AM
                    IN THE COURT OF APPEALS                   DEBBIE AUTREY
                                                                  Clerk
               SIXTH APPELLATE DISTRICT OF TEXAS
                      AT TEXARKANA, TEXAS



                            *********

               IN THE MATTER OF THE MARRIAGE OF
          AMANDA BRADSHAW AND BARNEY BRADSHAW


                            *********


                 Appealed from the County Court at Law
                          Rusk County, Texas
                   Trial Court No. 2013-09-482-CCL


__________________________________________________________________

           BRIEF OF APPELLANT AMANDA BRADSHAW
__________________________________________________________________


                                      EBB B. MOBLEY
                                      Attorney at Law
                                      State Bar # 14238000
                                      422 North Center Street-Lower Level
                                      P.O. Box 2309
                                      Longview, Texas 75606
                                      Telephone (903) 757-3331
                                      Facsimile (903) 753-8289
                                      ebbmob@aol.com

                                      ATTORNEY FOR APPELLANT
                              NO.06-15-00038-CV


                   IN THE MATTER OF THE MARRIAGE OF

                AMANDA BRADSHAW AND BARNEY BRADSHAW

__________________________________________________________________

               IDENTITY OF PARTIES AND COUNSEL
                      Pursuant to T.R.A.P. 38.1(a)
__________________________________________________________________


Appellant:          AMANDA BRADSHAW               78 Florey Lake
                                                  Kilgore, Texas 75662

Appellant's         EBB B. MOBLEY                 P.O. Box 2309
trial counsel       Attorney at Law               Longview, Texas 75606
Appellee pro se     BARNEY BRADSHAW               Michael Unit TDCJ-ID
                    Inmate #1942978               Tennessee Colony, Texas 75886

Trial Judge:        CHAD DEAN                     115 North Main Street, 2nd Floor
                    Rusk County Court at Law      Henderson, Texas 75662

Appellant's        EBB B. MOBLEY                  P. O. Box 2309
counsel on appeal: Attorney at law                Longview, TX 75606

Appellee pro se     BARNEY BRADSHAW               Michael Unit TDCJ-ID
on appeal:          Inmate #1942978               Tennessee Colony, Texas 75886




                                   Page 1 of 11
                                          TABLE OF CONTENTS


                                                                         Page
IDENTITIES OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

ISSUE ONE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
        The trial court erred in failing to characterize and confirm the
      house and real property at 78 Florey Lake, Kilgore, Texas as the
      separate property of Amanda Bradshaw.


SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
ISSUE TWO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

        The trial judge abused his discretion in the division of
      the marital estate of the parties.
SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9-10

PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

APPENDIX Decree of Divorce CR-64




                                                      Page 2 of 11
                                        INDEX OF AUTHORITIES
Cases

Barry Samuel Bradshaw v. State, 06-14-00165-CR slip op. May 5, 2015,
      2015 Tex.App. LEXIS 4545, pet’d denied 10/7/15 . . . . . . . . . . . . . . . . . . . . . . .6

Boyd v. Boyd, 131 S.W.3d 605, 615-17 (Tex.App. - Fort Worth 2004, no pet.) . . . . . 8
Brown v. State, 54 S.W.3d 930 (Tex.App. - corpus Christi, pet. ref’d) . . . . . . . . . . . .10

Cochran v. Wool Growers Cent. Storage Co., 166 S.W.2d 904, 908 (Tex. 1942) . . . .8

Cockerham v. Cockerham, 527 S.W.2d 162, 167 (Tex. 1975) . . . . . . . . . . . . . . . . . . .7
Garza v. Garza, 217 S.W.3d 538, 548 (Tex.App. - San Antonio
     2006, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9,10

Hailey v. Hailey, 176 S.W.3d 374 (Tex.App. - Houston 9[1st Dist] 2004, no pet.) . . .9
In Re Marriage of Brown, 187 S.W.3d 143, 146 (Tex.App. - Waco 2006, no pet.) . .10

In the Matter of the Marriage of Barney S. Bradshaw and Amanda Cheri
       Bradshaw, No. 12-14-00056-CV, slip op. August 13, 2014, 2014
       Tex.App. LEXIS 8859, no pet. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Jacobs v. Jacobs, 687 S.W.2d 731, 733 (Tex. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Kirtley v. Kirtley, 417 S.W.2d 847, 853 (Tex.App. - Texarkana 1967, writ dism’d) . .8
McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex. 1973) . . . . . . . . . . . . . . . . . . . . . .7

Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App. - Dallas 2005, pet. denied) . . . . .9

Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Stavinhoa v. Stavinhoa, 126 S.W.3d 604, 608 (Tex.App.-Houston [14th Dist.]
      2004, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7


Codes

Family Code §3.003(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Family Code §7.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9




                                                      Page 3 of 11
                          STATEMENT OF THE CASE
      This is an appeal from division of marital property in a divorce. Appellant

AMANDA BRADSHAW will be referred to as “Appellant,” “Amanda” or the wife.
Appellee BARNEY BRADSHAW will be referred to as “Appellee”, or “Barney” or the

husband.


                               SCRIVENER’S NOTE

      Counsel for Appellant has provided pro se Appellee BARNEY BRADSHAW
Inmate #1942978, Michael Unit TDCJ-ID, 2664 FM 2054, Tennessee Colony, Texas

75886, a photocopy of the Clerk’s Record and the Reporter’s Record in this case in
addition to a copy of this brief by United States mail return receipt requested.




                                     Page 4 of 11
                            STATEMENT OF FACTS
      Amanda Griffin married Barney Bradshaw on November 13, 2010. The parties

separated in August, 2013. On September 10, 2013, Amanda Bradshaw filed suit for
divorce from Barney Bradshaw. Amanda sought a divorce on both fault and no-fault

grounds. No children were born to or adopted during this marriage. CR 4-5.
      On September 27, 2013, Barney, an inmate in the Rusk County Jail awaiting

indictment, filed his pro se answer. CR-9. He sought confirmation of his separate

property consisting of a motorcycle and several motor vehicles. He also sought return
of personal property belonging to his brother. CR - 11. He made no claim of any sort

as to any real property.
      On November 12, 2013, Amanda and her trial counsel appeared for a bench trial.

After hearing evidence the trial judge granted Amanda a no-fault divorce and awarded
her certain motor vehicles and firearms. CR-15. A house and real property located at

78 Florey Lake in Kilgore was confirmed as Amanda’s separate property. CR-16.
      On December 12, 2013, Barney through counsel filed his timely motion for a
new trial. CR-21. After a full hearing with testimony by both parties, the trial court

denied the motion for new trial. CR-73.
      Barney filed an appeal to the Twelfth Court of Appeals. The divorce and

property division were reversed and remanded for a new trial because Barney had been

denied the opportunity to appear and participate in the trial.1 CR-35.

     On remand at a bench trial on May 4, 2015, both parties testified. The trial court

issued a letter ruling on May 4, 2015 that awarded Barney a 50% interest in 78 Florey

Lake. CR-30. On May 5, 2015, the Texarkana Court of Appeals issued an opinion



      1
      No. 12-14-00056-CV, In the Matter of the Marriage of Barney
S. Bradshaw and Amanda Cheri Bradshaw, slip op. August 13, 2014,
2014 Tex.App. LEXIS 8859, no pet.
                                     Page 5 of 11
affirming the criminal conviction and 60 year sentence assessed Bradshaw for

continuous sexual abuse of a child.2 CR-41.
      On May 8, 2015, Amanda moved to reopen her divorce case. CR-32. On June
8, 2015, the trial court considered additional testimony from Amanda and her two

daughters, some of the four victims of the numerous sexual assaults made the basis of
Barney’s criminal trial, conviction, and appeals. Barney denied the sexual assaults on

the children and physical abuse of Amanda.       RR 21 .

      On June 9, 2015, the trial court issued a second letter ruling. The trial judge
granted a fault based divorce, and reduced Barney’s interest in 78 Florey Lake to 20%

as opposed to the prior award of 50%. CR 63-67.
      Amanda appeals the trial court characterization of 78 Florey Lake as community

property and the subsequent division of the community property.




                                  ISSUE NO. ONE

      The trial court erred in failing to characterize and confirm the house and real

property at 78 Florey Lake, Kilgore, Texas as the separate property of Amanda
Bradshaw.




                                 ISSUE NO. TWO

      The trial judge abused his discretion in the division of the marital estate of the

parties.




      2
      No. 06-14-00165-CR, Barry Samuel Bradshaw v. State, slip
op. May 5, 2015, 2015 Tex.App. LEXIS 4545, pet’d denied 10/7/15.
                                     Page 6 of 11
                                 ISSUE NUMBER ONE
         The trial court erred in failing to characterize and confirm the house and real

property at 78 Florey Lake, Kilgore, Texas as the separate property of Amanda
Bradshaw.

                          SUMMARY OF THE ARGUMENT

         78 Florey Lake, Kilgore, Texas is the separate property of Amanda Bradshaw

because she successfully traced its total purchase price from proceeds of a fire
insurance claim on a separate property house she owned before her marriage to Barney

Bradshaw.


                               STANDARD OF REVIEW

         Amanda Bradshaw had the burden of proof to demonstrate to the trial court by
clear and convincing evidence that the real property at 78 Florey Lake was her separate

property. Family Code §3.003(b), McKinley v. McKinley, 496 S.W.2d 540, 543 (Tex.

1973).
         The clear and convincing standard requires evidence on which “a reasonable

trier of fact could have found a firm belief or conviction that its finding was true.
Stavinhoa v. Stavinhoa, 126 S.W.3d 604, 608 (Tex.App.-Houston [14th Dist.] 2004, no

pet.).

         When separate property has mutated since its inception of title, the party

claiming the property is separate must clearly trace the original property through all of

its mutations to the particular property on hand during the marriage. Cockerham v.

Cockerham, 527 S.W.2d 162, 167 (Tex. 1975).




                                        Page 7 of 11
                                     ANALYSIS
       Generally, one spouse’s uncorroborated and uncontradicted testimony will not

be sufficient to constitute clear and convincing evidence. See Boyd v. Boyd, 131
S.W.3d 605, 615-17 (Tex.App.-Fort Worth 2004, no pet.); Kirtley v. Kirtley, 417

S.W.2d 847, 853 (Tex.App.-Texarkana 1967, writ dism’d). But when the testimony of
both interested parties is uncontradicted and is clear, direct, positive, and free from

inaccuracies, and when there are no circumstances tending to cast suspicion on it, the

testimony is taken as true as a matter of law. Cochran v. Wool Growers Cent. Storage
Co., 166 S.W.2d 904, 908 (Tex. 1942).

      Both Amanda and Barney testified Amanda owned a house (511 Nolen) before

the parties’ marriage that subsequently was destroyed by fire during their marriage. RR
6. Both also testified that a new residence (78 Florey Lake) was purchased with funds
received from the fire insurance claim on Amanda’s separate property. 3 RR 25-26.

      Barney bases his claim to an ownership interest in 78 Florey on the fact that his
name was on the fire insurance claim settlement draft. RR 23.

      But the action of a third party insurance company cannot alter the separate
property character of real estate by its attempts to forestall any claims by a mere

occupant (Barney) as opposed to the record title holder (Amanda). Barney also

testified about his personal labor in maintaining and repairing both 511 Nolen and 78
Florey Lake. But he produced no documentation to corroborate his claims for

reimbursement or contribution.

      78 Florey may never be free of future title clouding claims by Barney Bradshaw.

R 22. But an unequivocal judicial statement that the property is the separate property

of Amanda Bradshaw would go a long way towards curing any further problems.




                                     Page 8 of 11
                               ISSUE NUMBER TWO
      The trial judge abused his discretion in the division of the marital estate

of the parties.
                        SUMMARY OF THE ARGUMENT

      Amanda Bradshaw has been unfairly penalized by the trial court’s award of an

interest in her home to her husband Barney Bradshaw. RR-54. She is paying an
unconscionable price to divorce her physical abuser and to protect her children from

a serial sexual predator.


                                     ARGUMENT



                             STANDARD OF REVIEW
      A trial court is charged with dividing the estate of the parties in a “just and right”

manner, considering the rights of both parties. TEX. FAM. CODE §7.001 Jacobs v.

Jacobs, 687 S.W.2d 731, 733 (Tex. 1985).        The community property of the marital

estate need not be equally divided. Murff v. Murff, 615 S.W.2d 696, 699 (Tex. 1981).
A trial court may order an unequal division of the community property when a

reasonable basis exists for granting that relief. Hailey v. Hailey, 176 S.W.3d 374

(Tex.App.-Houston [1st Dist] 2004, no pet).
      A trial court’s division of property is reviewed under an abuse of discretion

standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied);

see also Garza v. Garza, 217 S.W.3d 538, 548 (Tex.App.-San Antonio 2006, no pet.).

A trial court does not abuse its discretion if there is some evidence of a substantive and
probative character to support the decision. Garza, 217 S.W.3d at 549; Moroch, 174

S.W.3d at 857. A two part inquiry is conducted : (1) did the trial court have sufficient


                                       Page 9 of 11
evidence upon which to exercise its discretion, and (2) did the trial court err in its

application of that discretion? Garza, 217 S.W.3d at 549.


                                      ANALYSIS
        It is difficult to imagine a more blame-worthy fault in the break up of a

marriage than repeated sexual acts towards a husband’s minor step daughters. And

the action of the husband “tasing” and kicking his wife are also acts of extreme

abuse. RR 18.
        Acts of a criminal, sexual nature in the break up of a marriage were dealt with

in In Re Marriage of Brown, 187 S.W.3d 143, 146 (Tex.App. - Waco 2006, no pet.).

The criminal acts were outlined in Brown v. State, 54 S.W.3d 930 (Tex.App. - Corpus
Christi, pet. ref’d). The trial court award of 100% of the community property to

the wife and de minimus assets to the inmate husband was reversed and remanded to
the trial court. The trial evidence in Brown was found not sufficient to support the
disproportionate award of 100% of the community property to the wife and nothing t0

the husband, a convicted child molester. The court focused on values for the property
in question. Value is not an issue at bar, as only one asset is at issue.

        Barney has been rewarded by the trial court for his conduct, as well as
unsubstantiated and uncorroborated claims against the property at 78 Florey Lake.

Barney’s 20% interest, if upheld by this court, clouds the title to 78 Florey Lake in

perpetutity. Barney has no responsibility for maintenance, repairs, taxes or insurance,

and no incentive to join in these ongoing expenses or to agree to any future refinancing,
remodeling, or sale of the property unless his demands are met. He must serve 60 years

flat.

        The division of 78 Florey Lake is not only an abuse of discretion. It is an

unconscionable reward for monstrous behavior.

                                      Page 10 of 11
                                          PRAYER
         For the reasons stated in this brief, Appellant prays that the trial court’s judgment

of divorce be affirmed, the characterization of 78 Florey Lake as community property
be reversed and rendered as the separate property of appellant; or, alternatively, the

division of community property division should be reversed and remanded for a new

trial.

                                           Respectfully submitted,


                                           EBB B. MOBLEY
                                           Attorney at Law
                                           422 North Center Street
                                           P.O. Box 2309
                                           Longview, Texas 75606
                                           Telephone: (903) 757-3331
                                           Facsimile: (903) 753-8289
                                           ebbmob@aol.com



                                           /s/ Ebb B. Mobley
                                           EBB B. MOBLEY
                                           Attorney for Appellant

                          CERTIFICATE OF COMPLIANCE

      I certify that this brief contains 2261 words according to the computer program
used to prepare the document.

                                           /s/ Ebb B. Mobley
                                           EBB B. MOBLEY

                              CERTIFICATE OF SERVICE

      A copy of this brief was provided to Barney Samuel Bradshaw, Inmate
#1942978, Michael Unit-TDCJ-ID, 2664 FM 2054, Tennessee Colony, Texas 75886,
on the 20th day of October, 2015 by U.S. Mail, return receipt requested.
.

                                           /s/ Ebb B. Mobley
                                           EBB B. MOBLEY


                                         Page 11 of 11
