                                      ORIGINAL                                   FILE0 M
                                                                            TneCotiTtSJA^ate
 Ttie *. -urt ot Appeals             NO.   06-15-00038-CV
                                                                               Sixth ©fsWfet
 "' sbAh District
     KOV 1 8 2015                                                             NOV 1 $ 2015
                             TRIAL   COURT   NO.   2013-09-482-CCL
 Tixarkana, Texas *                                                         Texarka'na, te'x'a's
Debra Audrey, ClerK                                                     Debra K. Aufray, "6fe'rk
                                 IN THE COURT OF APPEALS

                     FOR THE SIXTH SUPREME JUDICIAL DISTRICT

                                      TEXARKANA, TEXAS




                            IN THE MATTER OF THE MARRIAGE OF


                                 AMANDA CHERI BRADSHAW,
                                             Petitioner/Appellant

                                               AND


                                 BARNEY SAMUEL BRADSHAW,
                                             Respondent/Appellee




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




                                     BRIEF FOR APPELLEE




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




                                                     ORAL ARGUMENT REQUESTED
                          TABLE OF CONTENTS

                                                               Page

Index of Authorities                                             ii

Statement Of The Case                                             2

Statement Regarding Oral Argument             ...                 3
Summary Of Appellee's Replies                                     3
Appellee's Reply To Appellant's First Issue                       3
    Appellant's Contention          1                             3
    Appellee' s Reply                                             3
    Argument And Authorities ...                                  4
          I. No Error Was Preserved. . .                          5

          II.   There Was No Error In The Characterization
                Of The House And Real Property                    5

Appellee's Reply To Appellant's Second Issue                      8
     Appellant's Contention.                            •••\      8
     Appellee's Reply                                             8
     Argument And Authorities                                     8
Prayer                                                            9
Certificate Of Compliance                                        10
Certificate Of Service                                           10
                          INDEX OF AUTHORITIES

CASES                                  .                     Page
In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373
                   (Tex. App.-Dallas 2013, no pet.)             6
Neyland v. Raymond, 324 S.W.3d 646 (Tex. App.-Fort Worth 2010).. 6
Salinas v. Rafati, 948 S.W.2d 286 (Tex. 1997)                   6

Toles v. Toles, 45 S.W.3d252 (Tex. App.-Dallas 2001)            6
Von Hohn v. Von Hohn, 260 S.W.3d 361 (Tex. App.-Tyler 2008)...5,6
Wells v. Wells, 251 S.W.3d 834 (Tex. App.-Eastland 2008)        6
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)                  6
CODES, STATUTES & RULES

TEX. R. APP. P. 33.1(a)                                         5

TEX. FAM. CODE ANN. § 7.001 (Vernon 2006)                       5




                                  li
                          NO.   06-15-00038-CV



                   TRIAL COURT NO.   2013-09-482-CCL



                       IN THE COURT OF APPEALS

             FOR THE SIXTH SUPREME JUDICIAL DISTRICT

                           TEXARKANA, TEXAS




                   IN THE MATTER OF THE MARRIAGE OF


                       AMANDA CHERI BRADSHAW,
                                Petitioner/Appellant

                                   AND


                       BARNEY SAMUEL BRADSHAW,
                                Respondent/Appellee




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




                         BRIEF FOR   APPELLEE




TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:

     COMES NOW BARNEY SAMUEL BRADSHAW, Respondent/Appellee, and

submits this brief pursuant to the provisions of the Texas Rules

of Appellate Procedure in opposition of the appeal in cause number
2013-09-482-CCL.
                      STATEMENT OF THE CASE

     This is an appeal from a Fi nal Decree of Divorce entered on

June 17, 2015, by the County Court at Law of Rusk County, Texas,

the Honorable Chad Dean Presiding Judge. (CR1:48-51). Petitioner/
Appellant filed an Original Petition for Divorce on September 10,
2013. (CRl:5-7). The original trial was held on November 12, 2013.

The trial court made its ruling, signed and entered the Final De

cree of Divorce on the same day. (CRl:12-20).
     Appellee appealed the original decision of the trial court

to the Twelfth Court of Appeals at Tyler, Texas. Appellee chal

lenged the trial court's division of the marital estate, the award

of seperate property to Appellant, and the refusal to allow Appel

lee to appear in court after a request. The judgment of the Twelfth

Court of Appeals was that the case be reversed and remanded to the

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

orce on May 12, 2015. (CRl:56-58). A hearing was held on May 4,
2015. (RR1). On May 5, 2015, the trial court entered Judge's Rul

ing of Property of Parties, awarding each party equal one-half

interest. (CR1:30-31). On June 9, 2015, the trial court judge en
tered a ruling awarding 80% of the estate to Appellant and 20% to

Appellee, based on a finding of fault in the breakup of the mar

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

     Appellee requested appointment of counsel on appeal, which

the trial court denied on July 21, 2015, because he is an indigent

inmate in the Texas Department of Criminal Justice. (CR1:70).
                   STATEMENT REGARDING   ORAL ARGUMENT

      Appellee believes that oral argument would assist the Court

in discerning the applicable case law and pertinent facts. Appel
lee, therefore, requests oral argument.

                     SUMMARY OF APPELLEE'S REPLIES

      The trial court correctly characterized and confirmed the

house and real property at 78 Florey Lake, Kilgore, Texas, as

community property. Appellant failed to preserve for review her

complaint that the trial court erred by failing to characterize

and confirm the house and real property at 78 Florey Lake, Kil

gore, Texas, as the seperate property of Amanda Bradshaw. Appel

lant did not object to the evidence and she failed to present some

of her argument to the trial court.

      The trial court judge did not abuse his discretion in the

division of the marital estate of the parties. Additionally, Ap

pellant failed to present some of her argument to the trial court.

            APPELLEE'S REPLY TO APPELLANT'S FIRST ISSUE

Appellant's Contention

      "The trial court erred in failing to characterize and confirm

the house and real property at 78 Florey Lake, Kilgore, Texas as

the seperate property of Amanda Bradshaw." (Appellant's Brief at

7).                               j
Appellee's Reply                  |
                                  i


      Appellant failed to preserve her issue for review because she

did not object to the evidence and she failed to present some of

her arguments to the trial court. Alternatively, the trial court

did not err by failing to characterize and confirm the house and
real property at 78 Florey Lake, Kilgore, Texas as the seperate

property of Amanda Bradshaw.

Argument And Authorities

     After the trial court entered a finding that the property

purchased on June 22, 2012, 78 Florey Lake, Kilgore, Texas, was

community property, Appellant filed a Motion to Reopen Evidence.
(CR1:30-31; CRl:32-33). Appellee acknowledges that Appellant "dis-
agree[d] with the Court's ruling characterizing the Florey Lake
property as community property." (CR1:33). Afterwards, a hearing
on the motion to reopen evidence was held on June 9, 2015. (RR3).

At the beginning of said hearing, Appellant restated her disagree
ment with the trial court's characterization of said property.
(RR3:4-5). Appellant then entered evidence as to the asserted fault
on the part of Appellee. (RR3:5-19). Appellant allowed the hearing
to conclude without obtaining a ruling from the trial court that

the property at 78 Florey Lake, Kilgore, Texas, was either commun
ity or seperate proerty of Appellant. (RR3). In fact, Appellant
clearly stated "[t]hat's all we have, Your Honor," at the conclu
sion of the hearing. (RR3:25). That same day, the trial court is
sued a ruling "findfing] the real estate at 78 Florey [Lake,] Kil
gore, TX is community property." (CR1:63). Due to a finding of
fault in the breakup, 80% of the .house was awarded to Appellant
and 20% to Appellee. (Crl:63). The trial court's ruling was deli-
vered via fax to Appellant's trial counsel that day. (CR1:63). An
entire week passed prior to the trial court entering the Final
Decree of Divorce. (CRl:64-67). Appellant failed to file a motion
                                 i



to reconsider the characterization of the community property before
the final decree was filed. (CR1>

I.      No Error Was Preserved

        To preserve a complaint for appellate review,    the record must

show the complaint was made to the trial court by a timely request,

objection, or motion stating the grounds for the ruling sought

with sufficient specificity to make the trial court aware of the

complaint and that the trial court ruled on the request, objection,

or motion. See TEX. R. APP. P. 33.1(a).

        Appellant's argument on appeal, that the action of a third
party insurance company cannot alter the seperate property character

of real estate and that Appellee produced no documentation to cor-

roberate his claims for reimbursement or contribution, was not men

tioned at the hearings and is not the same argument to the trial

court. Nothing in the record suggests that these legal arguments

were apparent to the trial court. (CRl; RR2; RR3; RR4). The trial

court had no opportunity to consider or rule on these arguments.

(CRl; RR2; RR3; RR4). Therefore, Appellant failed to preserve these
arguments for review and they should be overruled.

II.     There Was No    Error In The Characterization Of The House And
        Real Property

        In a decree of divorce, a court shall order a division of the

estate of the parties in a manner that the court deems just and

right, having due regard for the rights of each party. TEX. FAM.

CODE ANN. § 7.001 (Vernon 2006). A trial court's division of prop

erty is reviewed under an abuse of discretion standard. See Von

Hohn v. Von Hohn, 260 S.W.3d 631j 640 (Tex.App.-Tyler 2008, no
pet.). In determining whether the trial court abused its discre
tion,    the entire record is reviewed to determine if the trial court
                                     5
acted arbitrarily and unreasonably. See Toles v. Toles, 45 S.W.3d

252, 266 (Tex. App.-Dallas 2001, pet. denied). Legal and factual

sufficiency challenges are not independent grounds for asserting

error in the division of property, upon divorce, but instead are

relevant factors in determining whether the trial court abused its

discretion.   See In re Marriage of C.A.S. and D.P.S., 405 S.W.3d

373, 383 (Tex. App.-Dallas 2013, no pet.). An appellate court en

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

ient evidence upon which to exercise its discretion and (2) did

the trial court err in its application of that discretion?" Ney
land v. Raymond, 324 S.W.3d 646, 649 (Tex. App.-Fort Worth 2010,
no pet.).
     The trial court must have an evidentiary basis for its find

ings . See Salinas v. Rafati, 948 ,S.W.2d 286, 289 (Tex. 1997). A
trial court does not abuse its discretion if   there is   some evi

dence of a substantive and probative character to support the de

cision. Von Hohn, 260 S.W.3d at 640. When no findings of fact or

conclusions of law are filed or requested, it is implied that the

trial court made all the necessary findings to support ,its judg

ment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). If the

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

Tex. App.-Eastland 2008, no pet.).
     On May 4, 2015j the trial court held a final hearing on the

divorce. (RR2). During this hearing, Appellant testified that she
wanted a no fault divorce granted. (RR2:6). She also testified that
the parties were married on November 13, 2010. (RR2:5). Appellant

further testified that the house ion Nolan Street caught fire in

February 2012. (RR2:7). Claculating the time between the marriage
and the fire,   without consideration of the amount of time the part-
                                    !   '
ies lived together before marriage, indicates the parties lived

together on Nolan Street as husband and wife for at least one year

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

responded "I paid off the remaining mortgage balance off on that,

and then purchased a new home and furniture." (RR2:7). This was a

clear indication to the trial court that Appellant did not com

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

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

(RR2:13). In addition, Appellee testified that there was $40,000
owed on the house on Nolan Street. (RR2:15). Appellant never con
tradicted Appellee's assertion, which indicates that Appellee did
make a contribution   to   the house on Nolan Street.   On cross-exam

ination Appellant testified that the check from the insurance set

tlement was issued in both parties names and that the proceeds

from that check is what bought the property at 78 Florey Lake, Kil
gore, Texas. (RR2:10). Appellant further testified that said home
was bought during the marriage. (RR3:19-20).
     For the foregoing reasons, Appellee respectfully asserts that

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

Appellant's Contention

     "The trial judge abused his discretion in the division of the
marital estate of the parties." (Appellant's Brief at 9).
Appellee's Reply

     The trial judge did not abuse his discretion in the division

of the marital estate of the parties.

Argument And Authorities

     Once again, Appellant is dissatisfied with the division of

the community property. After having been, awarded 100% of the house

at Florey Lake, the Twelfth Court of Appeals reversed the trial

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

hearing, the trial court found that the property at 78 Florey Lake

was community property and awarded each party equal one-half inter

est. (RR2; CRl: 30) .Appellant then filed a motion to reopen evi-
                                 i

dence and amended her petition for divorce,    this time claiming
                                 i

there was fault in the breakup of the marriage. (CRl:32-33; CR1:56-
58). The trial court then ruled that the house and property at 78

Florey Lake was still community property, but due to a finding of

fault in the breakup of the marriage the court awarded 80% of the

house to Appellant and 20% to Appellee. (CR1:63). Still not satis
fied, Appellant now claims an abuse of discretion by the judge.

     While Appellee disagrees with the division of the community

property, he asserts that the trial judge did not abuse his dis-
cretion.
                                   i



       The argument and authorities cited in the II. subsection of

Issue One is incorporated hereto and applies to this issue also.

       For these reasons, Appellant 's second issue should be over-

ruled.

                                PRAYER
                                   I

       For the reasons stated herein, Appellee prays that the trial

court's judgment be in all things affirmed.
Dated: November 13, 2015.                Respectfully submitted,


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

                      CERTIFICATE OF   COMPLIANCE
                                   i

       I hereby certify that this brief contains 193 lines of text.


                                         BARNEY SAMUEL BRADSHAW
                                   i




                        CERTIFICATE IOF SERVICE

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

going brief has been served by placing same in the United States

Mail, postage prepaid, on the 13th day of November, 2015, addressed

to Appellant's Counsel at:

Ebb B. Mobley
Attorney At Law
P.O.   Box 2309
Longview, Texas 75606

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