                                                                       ACCEPTED
                                                                   12-14-00336-CV
                                                      TWELFTH COURT OF APPEALS
                                                                    TYLER, TEXAS
                                                             5/26/2015 10:40:11 AM
                                                                     CATHY LUSK
                                                                            CLERK

           No. 12-14-00336-CV

                                                   FILED IN
                                            12th COURT OF APPEALS
                 IN THE                          TYLER, TEXAS
                                            5/26/2015 10:40:11 AM
                                                 CATHY S. LUSK
    TWELFTH COURT OF APPEALS                         Clerk

           AT TYLER, TEXAS



FREDERICK DAWSON GRAHAM, Appellant

                    v.

    DENA MARIE TURNER, Appellee



 Appealed from the County Court at Law of

       Nacogdoches County, Texas

 Trial Court Cause Number:        C1228635



          APPELLEE’S BRIEF



          Counsel for Appellee:

           Jarett T. LaRochelle
       Texas Bar Number: 24041296
        One Riverway, Suite 1700
          Houston, Texas 77056
         713-907-8668 telephone
         713-840-6351 facsimile
Identity of Parties and Counsel

      Appellee certifies that this is a list of all parties to the trial court’s judgment,

and the names, addresses, and telephone numbers of all trial and appellate counsel:

Appellant: FREDERICK DAWSON GRAHAM

      Counsel:      Mr. Tom Rorie
                    State Bar No. 17238000
                    210 North Street
                    Nacogdoches, Texas 75961
                    936-559-1188 telephone
                    936-559-0099 facsimile

Appellee:    DENA MARIE TURNER

      Counsel:      Mr. Jarett T. LaRochelle
                    State Bar No. 24041296
                    One Riverway, Suite 1700
                    Houston, Texas 77056
                    713-907-8668 telephone
                    713-840-6351 facsimile

Oral Argument is Unnecessary

      Appellee would allege and show that oral argument is unnecessary herein on

each of the grounds provided in Rule 39.1 of the Texas Rules of Appellate

Procedure, i.e. (a) the appeal is frivolous; (b) the dispositive issues have been

authoritatively decided; (c) the facts and legal arguments are adequately presented

in the briefs and record; and (d) the decisional process would not be significantly

aided by oral argument.




                                                                                         2
                                                 Table of Contents

Identity of Parties and Counsel ..................................................................................2
Oral Argument is Unnecessary ..................................................................................2
Index of Authorities ...................................................................................................3
Statement of the Case.................................................................................................4
Issues Presented .........................................................................................................4
Statement of Facts ......................................................................................................5
Summary of the Argument.......................................................................................14
Argument..................................................................................................................15
Conclusion ...............................................................................................................31
Prayer .......................................................................................................................32
Certificate of Compliance ........................................................................................33
Certificate of Service ...............................................................................................33



Index of Authorities

Aaron v. Aaron, 2012 Tex.App. LEXIS 769                                                                               22, 24
     (Tex.App.—Houston [14th Dist.] January 31, 2012)
     (mem. Opinion) (Cause No. 14-10-00765-CV)

Griffin v. Birkman, 266 S.W.3d 189                                                                                    16
       (Tex.App.—Austin 2008, pet. ref’d)

Harrington v. Harrington, 742 S.W.2d 722                                                                              22, 23
      (Tex.App.—Houston [1st Dist.] 1987)

In re Bass, 113 S.W.3d 735                                                                                            16
       (Tex.2003)

In the interest of M.C.F., 121 S.W.3d 891                                                                             16
       (Tex.App.—Fort Worth 2003, pet.dism’d).


                                                                                                                              3
Knight v. Knight, 301 S.W.3d 723                                           16
     (Tex.App.—Houston [14th] 2009, no writ hist.).

Mea v. Mea, 464 S.W.2d 201                                                 16
     (Tex.Civ.App.—Tyler 1971, no writ hist.)

Codes, Rules, and Statutes

TEXAS CONSTITUTION, Article 16, §50(a)(3)                                  16

TEXAS BUSINESS & COMMERCE CODE §26.01(b)(3)                                24

TEXAS FAMILY CODE §3.203                                                   16

TEXAS PENAL CODE §22.01                                                    28


Statement of the Case

      Appellant Frederick Dawson Graham appeals the Final Decree of Divorce

entered on September 3, 2014, in in Cause No. C1228635, by the Honorable Judge

Jack Sinz, of the County Court at Law of Nacogdoches County, Texas.


Issues Presented

      Appellant Frederick Dawson Graham has presented nine (9) issues:

      1.    Whether the Trial Court abused its discretion in awarding Appellee an

      ownership interest in the marital residence;

      2.    Whether the Trial Court erred in finding that the parties were tenants

      in common in the marital residence;




                                                                                 4
     3.        Whether the Trial Court erred by divesting Appellant of one-half of

     his ownership in the marital residence and awarding that interest to

     Appellee;

     4.        Whether the Trial Court abused its discretion in failing to find that the

     residence was not purchased with Appellant’s separate property funds;

     5.        Whether the Trial Court abused its discretion when it disregarded

     Appellant’s allegation that Appellee committed fraud on the community

     estate;

     6.        Whether the Trial Court abused its discretion in disregarding evidence

     of benefits received by Appellee during the marriage;

     7.        Whether the Trial Court abused its discretion in finding that Appellant

     was at fault in the break-up of the marriage;

     8.        Whether the Trial Court abused its discretion when it ordered

     Appellant to pay spousal support; and

     9.        Whether the Trial Court abused its discretion in awarding a

     disproportionate part of the tract adjoining the residence.


Statement of Facts

     As indicated in Appellant’s Brief, the parties were married on or about 2007

and ceased to live together as husband and wife on or about July 1, 2012.

Appellant’s Brief ignores that Appellee and Appellant lived together and were

                                                                                      5
looking to purchase a residence together many years prior to their date of marriage.

(RR Vol. 1, pp. 42-43; RR Vol. 2, pp. 12-13; and Petitioner’s Ex. 1, email dated

December 26, 2008). During such time, Appellee ceased working on her own

independent career to enter into an oral business partnership and service

Appellant’s career. (RR Vol. 2, pp. 40, 146-151). Appellant was able to bill

clients for the parties’ joint effort at a higher rate than Appellee’s customary rate

and all business expenses incurred by the couple were reimbursed by the clients.

(RR Vol. 2, pp. 13, 40, 58, 115, 126, 148). Because Appellee traveled with

Appellant on his business trips, the Trial Court found Appellee was only available

to work with and for Appellant and was unable to continue her own, independent

career as corroborated by witness Kathy Bush-Soule, Appellee’s former client.

(RR Vol. 2, pp. 148-49). By written correspondence, Appellant acknowledged

Appellee’s business services consistently from 2004 through 2011. (RR Vol. 2,

pp. 17-21, 27-29, 115 and Petitioner’s Exhibit 1, email(s) dated May 25, 2004; July

13, 2004; July 16, 2004; August 2, 2004; August 13, 2004; June 23, 2005; May 2,

2006; April 27, 2006; May 3, 2006; May 4, 2006; July 12, 2006; July 13, 2006;

October 18, 2006; April 4, 2007; November 14, 2008; and January 14, 2011).

Appellant has education, training, and experience in the field of accounting for oil

and gas production with oil companies in that field, but relied upon Appellee’s

education, training, and experience in marketing, editing, and drafting of business



                                                                                   6
communications, presentation design and development, and back office

administration. (RR Vol. 2, pp. 13-14, 17-21). Appellant’s poor writing and

spelling skills required Appellee to both edit all communications with clients and

write the final work products presented for payment to clients. (RR Vol. 2, pp. 13-

14, 17-21, 37-38).

      With respect to the marital homestead, Appellee and Appellant collaborated

together to find and decide upon the purchase of the Raguet Street residence in

Nacogdoches in 2006. (RR Vol. 1, pp. 42-43). Appellant admitted on the stand

that Appellee and Appellant were purchasing the residence together. (RR Vol. 4,

p. 78).   Prior to the purchase of the Raguet Street residence, Appellee and

Appellant had previously attempted to purchase another, more expensive,

residence in Nacogdoches in 2004. (RR Vol. 4, p. 80 and Petitioner’s Ex. 1, emails

dated April 29, 2004, May 25, 2004, July 21, 2004, July 30, 2004, August 2, 2004,

August 17, 2004, August 25, 2004, and two (2) dated September 2, 2004).

Appellee was the only connection with or inspiration to reside in Nacogdoches.

Appellant had no independent connection with or incentive to reside in

Nacogdoches. (RR Vol. 3, pp.74-76 and RR Vol. 4, pp. 77-78).

      While the purchase of the Raguet Street residence was five months prior to

the date of marriage of the parties, the parties had been working, romantically

involved, and residing together for approximately five years. (Petitioner’s Ex. 1,



                                                                                 7
email dated December 26, 2008). The entire initial down payment on the Raguet

Street residence purchase was provided from business revenue generated by the

combined efforts of Appellee and Appellant and paid from a First Bank and Trust

of East Texas basic business checking bank account jointly owned by both

Appellee and Appellant. (RR Vol. 2, pp. 99, 131-133 and RR Vol. 3, pp. 45-52

and Petitioner’s Ex. 6). Appellee worked on and coordinated the entire closing on

the Raguet Street residence, and Appellant consulted with Appellee on loan

comparisons, cost savings and financial risk mitigataion. (RR Vol. 2, p. 28-29 and

Petitioner’s Ex. 1, email dated August 17, 2006). The Appellee testified and

Appellant conceded that title to the Raguet Street residence was exclusively held in

the name of Appellant because Appellee’s credit score would have resulted in a

higher mortgage interest rate. (RR Vol. 4, p 159 and Petitioner’s Exhibit 1; email

dated August 17, 2006). The payments in reduction of principal on the mortgage

secured by the Raguet Street residence were made from business revenue

generated by the combined efforts of Appellee and Appellant.           (Petitioner’s

Exhibit(s) 4, 10, 11, and 12). Any and all inheritance or other separate property

funds belonging to Appellant, including but not limited to Appellant’s inheritance

from his father, were deposited into a savings account commingled with other

funds and then deposited into a money market account and comingled with other

funds used to pay living expenses for both parties over the years prior to the



                                                                                  8
purchase of the Raguet Street residence. Appellee produced exhibits that evidence

the business revenue used to fund the initial down payment and regular monthly

payments on the mortgage secured by the Raguet Street residence. (RR Vol. 3, pp.

45-55 and Petitioner’s Exhibit(s) 4, 10, 11, and 12). None of the funds used for the

initial down payment or regular monthly payments on the Raguet Street residence

were from funds received from the United Kingdom. (RR Vol. 4, p. 161-63).

While Appellant’s Brief alleges otherwise, Appellant himself admitted on the stand

an inability to dispute Appellee’s tracing evidence with respect to the Raguet Street

residence. (RR Vol. 4, p. 161-63).

        The purchase of the Back Lot to the Raguet Street residence was after the

date of marriage of the parties. The Appellee testified and Appellant conceded that

title to the Raguet Street residence was exclusively held in the name of Appellant

because Appellee’s credit score would have resulted in a higher mortgage interest

rate.    By correspondence to Appellee, Appellant acknowledged the savings

received from their method of financing the Raguet Street residence only in

Appellant’s name.       It was, however, Appellee who handled the closing

coordination on the Raguet Street residence and Back Lot closings. Again, the

parties agreed that title to the Back Lot was recorded exclusively in the name of

Appellant, although purchased after the date of marriage of the parties, because

Appellant was able to obtain better financing terms without the joinder of Appellee



                                                                                   9
on the loan. In full and final payment of the mortgage due and owing on the “Back

Lot”, Appellant borrowed $15,000 from Robert McCatty and Kathleen McCatty,

his brother-in-law and sister.

      Appellee testified that she never anticipated Appellant would make claim to

the Raguet Street House or the Back Lot as his separate property.        Appellee

testified that Appellant had promised Appellee to add Appellee’s name to title to

the Raguet Street residence. For such reasons, Appellee served as the coordinator

and “general contractor” for extensive repairs and remodeling to the Raguet Street

residence and also ran the home since the time of purchase. And, Appellee would

not have performed all of the contracting and remodeling efforts at the Raguet

Street residence but for the understanding in reliance upon Appellant’s

representations that it was “their” home. (RR Vol. 3, p. 56). In fact, through

numerous email correspondences to Appellee, Appellant represented to Appellee

that he intended the home to be jointly owned, used, and enjoyed. (RR Vol. 2, p.

56 and RR Vol. 3, pp. 74-77; RR Vol. 4, pp. 78-82, 159; and Petitioner’s Ex. 1;

emails dated May 25, 2004; July 6, 2004; July 16, 2004; July 30, 2004; August 25,

2004; September 2, 2004; July 13, 2006; August 3, 2006; August 17, 2006;

September 26, 2006; December 18, 2006; and October 14, 2008). There was

certainly no evidence of intent for the Appellee to have no ownership interest in

the Raguet Street residence or adjoining Back Lot.



                                                                               10
      Appellant admitted on the stand to fabricating, falsifying, and/or

fraudulently executing documents with the intention that Appellee rely upon the

truthfulness of the information contained in such documents, both before the

marriage of the parties, to induce the Appellee into the marriage, and after the

marriage of the parties, to induce the Appellee to refrain from making claims

against Appellant. (RR Vol. 1, p. 66, 68 and RR Vol. 3, p. 5-7). Appellee testified

that she discovered Appellant’s fabrication, falsification, and/or fraudulent

execution of documents when Appellant left Appellee to return to the United

Kingdom under false pretenses. (RR Vol. 2, p. 72-76; RR Vol. 3, p. 35; and RR

Vol. 4, p. 155). At the time of Appellee’s discovery, the parties had not formally

reached an agreement for divorce.

      Appellant further admitted on the stand to lying to Appellee about his

involvements with a Melody Welsh aka Melanie Welsh as well as the value and

location of assets. (RR Vol. 1, p. 68 and RR Vol. 4, pp. 156-57). And further,

Appellant made an admission against his interests via telephone voice recording

Appellee that Appellant hid assets from Appellee in the United Kingdom. The

assets Appellant admitted to hiding from Appellee were undisclosed and

unidentified. For such and other reasons, Appellant’s testimony and evidence were

found to not be credible. Appellant’s evidence pertaining to his prior marriage to

Brigid Graham was not credible and the Trial Court was unable to determine or



                                                                                11
verify the date(s) or terms of Appellant’s divorce with Brigid Graham. In fact, the

Trial Court found that Appellant has the use and enjoyment of his prior marital

residence with his prior wife, Brigid Graham, in the United Kingdom, and access

to assets and/or funds in an undisclosed amount located in the United Kingdom.

(RR Vol. 1, pp. 49, 64, 67-68, 70-71, 83-85).

      On March 31, 2014, Temporary Orders were entered in this matter ordering

Appellant to make monthly payments of temporary spousal support to Appellee in

the amount of Two Thousand and no/100 Dollars ($2,000.00), on the first (1st) day

of each month beginning April 1, 2014, and thereafter until further order of this

Court. Appellant altogether failed to make any payment of temporary spousal

support to Appellee, in violation of the Temporary Orders entered March 31, 2014.

      At trial, the Trial Court found that the marriage has become insupportable

because of discord or conflict of personalities between Appellee Dena Marie

Turner and Appellant Frederick Dawson Graham that destroys the legitimate ends

of the marriage relationship and prevents any reasonable expectation of

reconciliation. The Trial Court further found that Appellant is guilty of cruel

treatment toward Appellee, including but not limited to acts of assault and/or

battery on or about April 20, 2012, in February of 2012, in December of 2011, in

October of 2011, in August of 2011, on or about July 4, 2010, in June of 2010, in

August of 2009, and in June of 2008. (RR Vol. 2, pp. 45-62, 67-72). Appellant’s



                                                                                12
cruel treatment toward Appellee was corroborated by the witness Cheryl Gryder.

(RR Vol. 2, pp. 154-56, 161). The Trial Court found that Appellee’s discovery of

Appellant’s fabrication, falsification, and/or fraudulent execution of documents,

combined with Appellant’s cruel treatment of Appellee, were the fault and cause of

the divorce. The Trial Court therefore determined that Appellant is at fault in the

breakup of the marriage and that Appellee is entitled to a disproportionate division

of the parties’ marital estate.

      The Trial Court found that the only evidence that Appellant gifted,

conveyed, or transferred money to any other person during the marriage of the

parties is Appellant’s testimony as to providing funds to his prior wife, his

children, and to Melody Welsh aka Melanie Welsh. The Trial Court found that

there is no credible evidence that any community funds were used without the

knowledge or consent of Appellant.

      The Trial Court further found that, in the summer of 2012, Appellant made

available to Appellee the sum of $20,000 to cover expenses while Appellant left

Appellee under false pretenses to return to live with his prior wife Brigid Graham.

At the time Appellant made the $20,000 available to Appellee, there was no

agreement by and between the parties to divorce and settle the marital estate.

During such time, Appellant used substantial community funds from the First Bank

and Trust of East Texas bank accounts co-owned by Appellant and Appellee. (RR



                                                                                 13
Vol. 2, p. 104-105 and RR Vol. 4, p. 12). In fact, Appellee testified that in the

summary of 2012, negotiations were taking place by and between the parties as to

the division of the martial estate but that Appellant left Appellee under false

pretenses to return to live with his prior wife Brigid Graham before any agreement

could be made.     Appellee further testified that prior to the time Appellee

discovered Appellant’s fabrication, falsification, and/or fraudulent execution of

documents there remained the possibility of reconciliation and no agreement had

been reached by and between the parties regarding divorce.

      At the conclusion of trial, the Trial Court found that Appellee has incurred

reasonable and necessary attorney’s fees in excess of $10,000.00, and that

Appellee is entitled to recover her reasonable and necessary attorney’s fees from

Appellant. The Trial Court further found that, for violation of the Temporary

Orders entered March 31, 2014, Appellant is ordered to pay to Appellee $8,000.00,

as outstanding support under such Temporary Orders through trial.


Summary of the Argument

      Appellant challenges the Final Decree of Divorce entered on September 3,

2014, in in Cause No. C1228635, by the Honorable Judge Jack Sinz, of the County

Court at Law of Nacogdoches County, Texas. Appellant contends that the Final

Decree of Divorce entered against him should be reversed and that judgment

should be rendered that Appellee has no ownership interest in the Raguet Street

                                                                               14
residence. Appellant further contends that the division of the community property

and spousal support issues should be remanded with additional instructions to (a)

consider the evidence with regard to expenditures made by Appellee with

community funds, (b) financial benefits received by Appellee during the marriage,

(c) the disproportionate division of the Back Lot to the Raguet Street residence;

and (d) the award of temporary spousal support by order of the Trial Court dated

March 31, 2014. The record shows, however, that Appellant’s points of error are

frivolous and unsubstantiated by the evidence.          Specifically, the evidence

demonstrates that the initial down payment and mortgage payments on the Raguet

Street residence were not from Appellant’s separate property funds; that no

expenditures by Appellee of community funds were without Appellant’s consent or

knowledge; that Appellant’s wrongful acts are relevant, material, and rise to the

level of fault in the breakup; that Appellant has access to undisclosed, unidentified

funds in the United Kingdom which enable him to pay support to Appellee; and

that Appellant’s fault in the breakup justifies a disproportionate award to Appellee.


Argument

Point 1. The Trial Court did not abuse its discretion in awarding Appellee an

ownership interest in the marital residence.

Point 2. The Trial Court did not err in finding that the parties were tenants in

common in the marital residence.

                                                                                   15
Point 3. The Trial Court did not err by divesting Appellant of one-half of his

ownership interest in the marital residence and awarding that interest to

Appellee

      As conceded in Appellant’s Brief, the Trial Court does not abuse its

discretion unless a decision is so arbitrary or unreasonable that it amounts to a

clear error.   In re Bass, 113 S.W.3d 735 (Tex.2003).          Without abusing its

discretion herein, the Trial Court divided marital property as it deemed right based

on the credible evidence and facts presented.        Mea v. Mea, 464 S.W.2d 201

(Tex.Civ.App.—Tyler 1971, no writ hist.).          As provided in the Trial Court’s

Findings of Fact and Conclusions of Law, there exist reasonable bases for the

unequal division of the property of the parties herein. Knight v. Knight, 301

S.W.3d 723 (Tex.App.—Houston [14th] 2009, no writ hist.).             Further, such

reasonable bases exist in light of findings founded on sufficient facts and evidence.

Griffin v. Birkman, 266 S.W.3d 189 (Tex.App.—Austin 2008, pet. ref’d); and In

the interest of M.C.F., 121 S.W.3d 891 (Tex.App.—Fort Worth 2003, pet.dism’d).

Under the inherent authority of Section 3.203 of the Texas Family Code and

Article 16, Section 50(a)(3) of the Texas Constitution, the Trial Court has just and

equitable discretion over the marital residence.

      In an attempt to dismiss Appellant’s fault and lack of credibility, Appellant’s

brief mischaracterizes the situation and status of assets in the months leading up to



                                                                                  16
the filing of divorce. Specifically, Appellant’s brief alleges that Appellee obtained

benefits to which she was not entitled during the time that Appellant had

abandoned her to return to his former wife in the United Kingdom. As indicated in

the reporter’s record and Trial Court’s Findings of Fact and Conclusions of Law

Appellant’s testimony and evidence were found to not be credible. (RR Vol. 1, p.

28; RR Vol. 3, pp. 69, 126; and RR. Vol. 4, p. 25-27, 145, 200-01).

      Contrary to the factual allegations contained in Appellant’s brief, Appellee

and Appellant lived together and were looking to purchase a residence together

many years prior to their date of marriage. (RR Vol. 1, pp. 42-43; RR Vol. 2, pp.

12-13; and Petitioner’s Ex. 1, email dated December 26, 2008). During such time,

Appellee ceased working on her own independent career to enter into an oral

business partnership and service Appellant’s career. (RR Vol. 2, pp. 40, 146-151).

Appellant was able to bill clients for the parties’ joint effort at a higher rate than

Appellee’s customary rate and all business expenses incurred by the couple were

reimbursed by the clients. (RR Vol. 2, pp. 13, 40, 58, 115, 126, 148). Because

Appellee traveled with Appellant on his business trips, the Trial Court found

Appellee was only available to work with and for Appellant and was unable to

continue her own, independent career, as corroborated by witness Kathy Bush-

Soule, Appellee’s former client.        (RR Vol. 2, pp. 148-49).         By written

correspondence,     Appellant    acknowledged      Appellee’s    business    services



                                                                                   17
consistently from 2004 through 2011. (RR Vol. 2, pp. 17-21, 27-29, 115 and

Petitioner’s Exhibit 1, email(s) dated May 25, 2004; July 13, 2004; July 16, 2004;

August 2, 2004; August 13, 2004; June 23, 2005; May 2, 2006; April 27, 2006;

May 3, 2006; May 4, 2006; July 12, 2006; July 13, 2006; October 18, 2006; April

4, 2007; November 14, 2008; and January 14, 2011). Appellant has education,

training, and experience in the field of accounting for oil and gas production with

oil companies in that field, but relied upon Appellee’s education, training, and

experience in marketing, editing, and drafting of business communications,

presentation design and development, and back office administration. (RR Vol. 2,

pp. 13-14, 17-21). Appellant’s poor writing and spelling skills required Appellee

to both edit all communications with clients and write the final work products

presented for payment to clients. (RR Vol. 2, pp. 13-14, 17-21, 37-38).

      With respect to the marital homestead, Appellee and Appellant collaborated

together to find and decide upon the purchase of the Raguet Street residence in

Nacogdoches in 2006. (RR Vol. 1, pp. 42-43). Appellant admitted on the stand

that Appellee and Appellant were purchasing the residence together. (RR Vol. 4,

p. 78).   Prior to the purchase of the Raguet Street residence, Appellee and

Appellant had previously attempted to purchase another, more expensive,

residence in Nacogdoches in 2004. (RR Vol. 4, p. 80 and Petitioner’s Ex. 1, emails

dated April 29, 2004, May 25, 2004, July 21, 2004, July 30, 2004, August 2, 2004,



                                                                                18
August 17, 2004, August 25, 2004, and two emails dated September 2, 2004).

Appellee was the only connection with or inspiration to reside in Nacogdoches.

Appellant had no independent connection with or incentive to reside in

Nacogdoches. (RR Vol. 3, pp.74-76 and RR Vol. 4, pp. 77-78).

      The parties do not disagree that purchase of the Raguet Street residence was

prior to the date of marriage of the parties. The evidence demonstrates, however,

that while the purchase of the Raguet Street residence was five months prior to the

date of marriage of the parties, the parties had been working, romantically

involved, and residing together for approximately five years. (Petitioner’s Ex. 1,

email dated December 26, 2008).       The evidence shows that the initial down

payment on the Raguet Street residence purchase was provided from business

revenue generated by the combined efforts of Appellee and Appellant and paid

from a First Bank and Trust of East Texas basic business checking bank account

jointly owned by both Appellee and Appellant. (RR Vol. 2, pp. 99, 131-133 and

RR Vol. 3, pp. 45-52 and Petitioner’s Ex(s). 4, 6, 10, 11, and 12). The Appellee

testified and Appellant conceded that title to the Raguet Street residence was

exclusively held in the name of Appellant because Appellee’s credit score would

have resulted in a higher mortgage interest rate. (RR Vol. 4, p 159 and Petitioner’s

Exhibit 1; email dated August 17, 2006). The payments in reduction of principal

on the mortgage secured by the Raguet Street residence were made from business



                                                                                 19
revenue generated by the combined efforts of Appellee and Appellant (RR Vol. 2,

pp. 99, 131-133 and RR Vol. 3, pp. 45-52 and Petitioner’s Ex(s). 4, 10, 11, and

12).   Any and all inheritance or other separate property funds belonging to

Appellant, including but not limited to Appellant’s inheritance from his father,

were deposited into a savings account commingled with other funds and then

deposited into a money market account and comingled with other funds used to

pay living expenses for both parties. Appellee produced exhibits that evidence the

business revenue used to fund the initial down payment and regular monthly

payments on the mortgage secured by the Raguet Street residence. (RR Vol. 3, pp.

45-55 and Petitioner’s Exhibit(s) 4, 10, 11, and 12). None of the funds used for the

initial down payment or regular monthly payments on the Raguet Street residence

were from funds received from the United Kingdom. (RR Vol. 4, p. 161-63).

While Appellant’s Brief alleges otherwise, Appellant himself admitted on the stand

an inability to dispute Appellee’s tracing evidence with respect to the Raguet Street

residence. (RR Vol. 4, p. 161-63). Thus, the Trial Court found that neither the

initial down payment nor the regular monthly payments on the mortgage secured

by the Raguet Street residence were funded from Appellant’s money market

account, i.e. the account claimed to contain separate property funds belonging to

Appellant.

       Appellee worked on and coordinated the entire closing on the Raguet Street



                                                                                  20
residence, and Appellant consulted with Appellee on loan comparisons, cost

savings and financial risk mitigation. (RR Vol. 2, p. 28-29 and Petitioner's Exhibit

1, e-mail dated August 17, 2006). Appellee testified and Appellant conceded that

title to the Raguet Street residence was exclusively held in the name of Appellant

because Appellee’s credit score would have resulted in a higher mortgage interest

rate. (RR Vol. 4, p 159 and Petitioner’s Exhibit 1; email dated August 17, 2006).

Appellee testified that she never anticipated Appellant would make claim to the

Raguet Street House or the Back Lot as his separate property. Appellee also

testified that Appellant had promised Appellee to add Appellee’s name to title to

the Raguet Street residence. For such reasons, Appellee served as the coordinator

and “general contractor” for extensive repairs and remodeling to the Raguet Street

residence. And, Appellee would not have performed all of the contracting and

remodeling efforts at the Raguet Street residence but for the understanding in

reliance upon Appellant’s representations that it was “their” home. (RR Vol. 3, p.

56). In fact, through numerous email correspondences to Appellee, Appellant

represented to Appellee that he intended the home to be jointly owned, used, and

enjoyed. (RR Vol. 2, p. 56; RR Vol. 3, pp. 74-77; RR Vol. 4, pp. 78-82, 159; and

Petitioner’s Ex. 1; emails dated May 25, 2004; July 6, 2004; July 16, 2004; July

30, 2004; August 25, 2004; September 2, 2004; July 13, 2006; August 3, 2006;

August 17, 2006; September 26, 2006; December 18, 2006; and October 14, 2008).



                                                                                 21
There was certainly no evidence of intent for the Appellee to have no ownership

interest in the Raguet Street residence or adjoining Back Lot.

      The most relevant authority to permit the Trial Court to determine that the

Raguet Street residence was jointly owned by the Appellee and Appellant is found

in Aaron v. Aaron, 2012 Tex.App. LEXIS 769 (Tex.App.—Houston [14th Dist.]

January 31, 2012) (mem. Opinion) (Cause No. 14-10-00765-CV) and Harrington

v. Harrington, 742 S.W.2d 722 (Tex.App.—Houston [1st Dist.] 1987). In the

Aaron case, the husband challenged the trial court’s findings and conclusions that

the residence, acquired prior to marriage, was jointly owned by husband and wife

prior to marriage. The trial court in the Aaron case found that even though title

was acquired prior to marriage and held in the husband’s name alone, the husband

and wife jointly owned the house, each owning a one-half, undivided separate

property interest in the house. The Court of Appeals in the Aaron case affirmed

the trial court’s judgment. The present case is similar to the Aaron case in that the

parties looked for and decided upon the Raguet Street residence together, it was

purchased in the husband’s name solely due to the wife’s poor credit, and the

residence was used, enjoyed, and represented to be jointly owned. (RR Vol. 3, pp.

75-77; RR Vol. 4, p. 159; and Petitioner’s Ex. 1; emails dated May 25, 2004; July

6, 2004; July 16, 2004; July 30, 2004; August 25, 2004; September 2, 2004; July

13, 2006; August 3, 2006; August 17, 2006; September 26, 2006; December 18,



                                                                                  22
2006; and October 14, 2008). In the Harrington case, the husband challenged the

trial court’s findings and conclusions that the residence was purchased by the

parties as tenants in common, pursuant to an oral partnership, taking title in the

husband’s name for convenience and credit purposes only. See Harrington, 742

S.W.2d at 723-24. The Harrington court acknowledged the wife’s plea that an oral

partnership existed in the parties’ purchase and ownership of the residence,

entitling her to an undivided one-half interest. See id. The wife’s testimony that

she agreed to the husband applying for the loan and taking title in his name alone;

combined with her lack of concern that he would ever assert that the property was

his alone, their referring to the property as “our home”, and the wife’s

contributions to improving the house, established that there was never any

indication of intent for the wife to have no ownership interest. See Harrington,

742 S.W.2d at 725. The present case is similar to Harrington in that the evidence

clearly demonstrates that, as a result of the Appellee’s credit, the parties both

benefitted from securing a mortgage and taking title solely in the Appellant’s

name, both parties continually referred to the residence as “our home”, and both

parties contributed to improving the house. (RR Vol. 3, pp. 74-77; RR Vol. 4, pp.

78-82, 159; and Petitioner’s Ex. 1; emails dated May 25, 2004; July 6, 2004; July

16, 2004; July 30, 2004; August 25, 2004; September 2, 2004; July 13, 2006;

August 3, 2006; August 17, 2006; September 26, 2006; December 18, 2006; and



                                                                                23
October 14, 2008).       Appellant’s Brief altogether ignores these significant,

contributing factors which justify the Trial Court’s decision. Again, conveniently,

Appellant’s Brief mischaracterizes the evidence by falsely alleging separate

property funds were used to acquire the Raguet Street residence and completely

fails to acknowledge the admitted benefit both parties received from financing the

acquisition without consideration of Appellee’s poor credit.            Nothing in

Appellant’s Brief justifies derogation from the reasoning provided in the Aaron

and Harrington cases. Notwithstanding such fact, Appellant falsely claims that

such cases are against public policy.

        Appellant disingenuously cites Section 26.01(b)(3) of the Texas Business

and Commerce code with reference to “agreement made on consideration of

marriage or on consideration of nonmarital conjugal cohabitation”. Such section is

altogether inapplicable herein because none of the agreements to which Appellant

makes issue are “on consideration of marriage”.           Thus any public policy

discussions contained in Appellant’s brief are superfluous and irrelevant.



Point 4. The Trial Court did not abuse its discretion in failing to find that the

marital residence was not purchased with Appellant’s separate property

funds

        The evidence demonstrates, however, that the initial down payment on the



                                                                                24
Raguet Street residence purchase was provided from business revenue generated

by the combined efforts of Appellee and Appellant and paid from a First Bank and

Trust of East Texas basic business checking bank account jointly owned by both

Appellee and Appellant. (RR Vol. 2, p. 99, 131-133; RR Vol. 3, pp. 45-54; and

Petitioner’s Ex. 6).   The payments in reduction of principal on the mortgage

secured by the Raguet Street residence were made from business revenue

generated by the combined efforts of Appellee and Appellant (RR Vol. 3, pp. 45-

55 and Petitioner’s Exhibit(s) 4, 10, 11, and 12). Any and all inheritance or other

separate property funds belonging to Appellant, including but not limited to

Appellant’s inheritance from his father, were deposited into a savings account

commingled with other funds and then deposited into a money market account and

comingled with other funds used to pay living expenses for both parties over the

years prior to the purchase of the Raguet Street residence. Appellee produced

exhibits that evidence the business revenue used to fund the initial down payment

and regular monthly payments on the mortgage secured by the Raguet Street

residence (Petitioner’s Exhibit(s) 4, 10, 11, and 12). None of the funds used for the

initial down payment or regular monthly payments on the Raguet Street residence

were from funds received from the United Kingdom. In fact, Appellant admitted

on the stand an inability to prove any tracing information for the payments on the

Raguet Street residence. (RR Vol. 4, p. 161-63). Thus, the Trial Court found that



                                                                                  25
neither the initial down payment nor the regular monthly payments on the

mortgage secured by the Raguet Street residence were funded from Appellant’s

money market account, i.e. the account claimed to contain separate property funds

belonging to Appellant. (RR Vol. 3, pp. 45-55 and Petitioner’s Exhibit(s) 4, 10,

11, and 12).



Point 5. The Trial Court did not abuse its discretion when it disregarded

Appellant’s allegation that Appellee committed fraud on the community estate

      Contrary to the allegations made in Appellant’s brief, the evidence

demonstrates that Appellant was aware and consented to the expenditures for

which he makes complaint on appeal, i.e. remodeling Appellee’s aunt’s house,

since such efforts and expenses were expended by both Appellant and Appellee

(RR Vol. 1, p. 16; RR Vol. 2, p. 69; and RR Vol. 4, p. 143). In fact, the evidence

demonstrates that Appellant was not only aware and consented, but that he actually

benefited from staying in the aunt’s residence while obtaining medical assistance

nearby. (RR Vol. 2, p. 69 and RR Vol. 4, p. 111). As for fraudulent expenditures

of the community estate, the only credible evidence was that Appellant spent

substantial sums to visit the United Kingdom and his prior family. (RR Vol. 2, p.

104-105 and RR Vol. 4, p. 12).




                                                                               26
Point 6. The Trial Court did not abuse its discretion by disregarding evidence

of benefits received by Appellee during the marriage

      The evidence demonstrates that the benefits received by Appellee during the

marriage were in acknowledgment and compensation for the business services

rendered by Appellee for their joint business enterprise. (RR Vol. 1, p. 47). By

written correspondence, Appellant acknowledged Appellee’s business services

consistently from 2004 through 2011. (RR Vol. 2, p. 115; RR Vol. 3, pp. 71-73;

and Petitioner’s Exhibit 1, email(s) dated May 25, 2004; July 13, 2004; July 16,

2004; August 2, 2004; August 13, 2004; June 23, 2005; May 2, 2006; April 27,

2006; May 3, 2006; May 4, 2006; July 12, 2006; July 13, 2006; October 18, 2006;

April 4, 2007; November 14, 2008; and January 14, 2011).            Moreover, the

evidence demonstrates that Appellant made transfers and/or withdrawals of

community funds without the knowledge and/or consent of Appellee. (RR Vol. 4,

p. 12). Altogether, the evidence demonstrates that Appellant’s expenditures of

community funds and/or benefits received exceed Appellee’s corresponding

expenditures and/or benefits.



Point 7. The Trial Court did not abuse its discretion in finding Appellant at

fault in the breakeup of the marriage

      It is uncontroverted that Appellant is guilty of cruel treatment, assault, and



                                                                                 27
battery of Appellee. (RR Vol. 2, pp. 47, 54, 56, 60-61, 67-68, 70-71). Such

evidence is corroborated by witness testimony. (RR Vol. 2, pp. 155-56). While

the Appellant attempts to dismiss these examples of cruel treatment, assault, and

battery, Appellant seems completely unaware that a “touch” is what constitutes

battery while assault only requires the threat of a “touch”. See §22.01 TEXAS

PENAL CODE. Thus, while attempting to dismiss the incidents of Appellant’s

assaulting Appellee, Appellant’s Brief merely argues that many of the incidents of

assault do not rise to the level of battery.    Such disingenuous arguments by

Appellant are immaterial and irrelevant. The evidence also clearly demonstrates

that Appellant abandoned Appellee for several months in 2012, under false,

deceptive pretenses. (RR Vol. 2, p. 72-76; RR Vol. 3, p. 35; and RR Vol. 4, p.

155).   The evidence further demonstrates that it was during this period of

abandonment in 2012, that Appellee was able to investigate and confirm the

forgeries and fraud perpetrated by the Appellant upon the Appellee, to discover

Appellant’s extramarital solicitations, and to reach the final conclusion that the

marriage was irreconcilable. (RR Vol. 2, p. 77-96, 102-03; and RR Vol. 4, pp.

156-57). Considering the Appellant’s lack of credibility and admissions of lying to

Appellee and hiding money from Appellee in the United Kingdom, Appellant was

correctly found at fault. (RR Vol. 1, p. 28 and RR Vol. 3, pp. 69, 126). Similarly,

Appellant’s admissions of forgery and falsifying documents are significant factors



                                                                                28
in the finding of Appellant at fault. (RR. Vol. 4, p. 25-27, 145, 200-01). For such

reasons, Appellee is justly entitled to a disproportionate award against Appellant

and spousal maintenance.



Point 8.   The Trial Court did not abuse its discretion when it ordered

Appellant to pay spousal support to Appellee

      The evidence demonstrates that Appellant has made admissions against his

interests in direct contravention of the allegation made in Appellant’s eighth point

of error, i.e. that he lied to Appellee and hid assets from Appellee in the United

Kingdom. (RR Vol. 1, p. 28 and RR Vol. 3, p. 69). The Trial Court acknowledged

Appellant’s credibility issues. (RR. Vol. 4, p. 25-27 and RR Vol. 4, pp. 145, 200-

01). When it was convenient for Appellant, substantial sums of money were

transferred from the UK to Appellant for which no debt or repayment obligations

were commemorated. (RR Vol. 2, pp. 140-42 and RR Vol. 3, pp. 64, 131-32, 136-

37). Appellant has admitted that he has the use and enjoyment of his prior marital

residence with his prior wife, Bridgett Graham. (RR Vol. 1, pp. 33, 34). Further,

Appellant failed to provide any credible documentation to dispute that he has

access to substantial assets in the United Kingdom and repeatedly admitted to

having accounts and access to funds in the United Kingdom. (RR Vol. 1, pp. 49,

64, 67-68, 70-71, 83-85 and RR Vol. 4, pp. 149-50, 152).          And finally, the



                                                                                 29
evidence demonstrates that Appellant has access to substantial funds and paid his

attorney during the period he was obligated to pay spousal support. (RR Vol. 2,

pp. 140-42 and RR Vol. 3, pp. 64, 131-32, 136-37). For such reason, the Trial

Court correctly concluded that Appellant has funds with which to pay support to

Appellee. (RR Vol. 3, pp. 80-81 and RR Vol. 4, pp. 199-200).



Point 9.    The Trial Court did not abuse its discretion in awarding a

disproportionate part of the Back Lot tract adjoining the Raguet Street

residence

      As discussed herein, the Trial Court justifiably found the Appellant at fault

and accordingly awarded a disproportionate part of the Back Lot tract adjoining the

Raguet Street residence. As the purchase of the Back Lot to the Raguet Street

residence was after the date of marriage of the parties, title to the Raguet Street

residence was exclusively held in the name of Appellant only because Appellee’s

credit score would have resulted in a higher mortgage interest rate.            By

correspondence to Appellee, Appellant acknowledged the savings received from

their method of financing the Raguet Street residence only in Appellant’s name.

(RR Vol. 4, p 159 and Petitioner’s Exhibit 1; email dated August 17, 2006). It

was, however, Appellee who handled the closing coordination on the Raguet Street

residence and Back Lot closings. (RR Vol. 2, p. 28-29). Again, the parties agreed



                                                                                30
that title to the Back Lot was recorded exclusively in the name of Appellant,

although purchased after the date of marriage of the parties, because Appellant was

able to obtain better financing terms without the joinder of Appellee on the loan.

None of the funds used for the initial down payment or regular monthly payments

on the Back Lot were from funds received from the United Kingdom. In fact,

Appellant admitted on the stand an inability to prove any tracing information for

the payments. (RR Vol. 4, p. 161-63). Thus, the Trial Court found that no funds

used in payment on the Back Lot were from any account claimed to contain

separate property funds belonging to Appellant.       (RR Vol. 3, pp. 45-55 and

Petitioner’s Exhibit(s) 4, 10, 11, and 12). As for the outstanding “loan”, i.e. the

$15,000 Appellant borrowed from Robert McCatty and Kathleen McCatty,

Appellant’s brother-in-law and sister, the Final Decree of Divorce entered herein

provides for final payment of same.




Conclusion

      As set forth above, the evidence clearly demonstrates that the Trial Court did

not abuse its discretion. The Final Decree of Divorce entered herein is justified

and founded on careful considerations of all credible evidence provided herein.

The Trial Court justifiably concluded that Appellant has credibility issues;

committed relevant, material, and wrongful acts against the Appellee to rise to the

                                                                                 31
level of being at fault in the breakup of the marriage; and has access to assets

hidden from Appellee in the United Kingdom.          Moreover, the Trial Court

reasonably concluded that the Raguet Street residence and Back Lot were acquired

by funds obtained by the efforts of both parties; were titled and financed

exclusively in Appellant’s name solely for the purpose of obtaining better credit

terms; were used, enjoyed, and represented to be jointly owned; and were

substantially improved by the efforts of Appellee in justifiable reliance upon

Appellant’s representations that the property was jointly owned. And finally, the

Trial Court reasonably concluded that no expenditures by Appellee of community

funds were without Appellant’s consent, knowledge, participation, or benefit. For

such reasons, the Trial Court did not abuse its discretion in awarding Appellee a

disproportionate award.




Prayer

      Wherefore, premises considered, Appellee Dena Marie Turner prays that this

Honorable Court affirm the Final Decree of Divorce entered against the Appellant

Frederick Dawson Graham on September 3, 2014, under Cause No. C1228635, in

the County Civil Court at Law of Nacogdoches County, Texas.

                                     Respectfully Submitted,




                                                                               32
                                      /s/ Jarett T. LaRochelle
                                      Jarett T. LaRochelle
                                      Texas Bar No. 24041296
                                      One Riverway, Suite 1700
                                      Houston, Texas 77056
                                      713-907-8668 telephone
                                      713-840-6351 facsimile
                                      ATTORNEY FOR APPELLEE DENA
                                      MARIE TURNER


Certificate of Compliance

       This document complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a convention typeface no smaller than 14-
point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
less than 6,000 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).

                                      /s/ Jarett T. LaRochelle
                                      Jarett T. LaRochelle




Certificate of Service

      I hereby certify that a true and correct copy of the foregoing notice has been
forwarded to the following parties or their counsel of record in accordance with the
Texas Rules of Civil Procedure on this the 26th day of May, 2015:


      Mr. Tom Rorie
      State Bar No. 17238000
      210 North Street
      Nacogdoches, Texas 75961
      936-559-1188 telephone
      936-559-0099 facsimile


                                                                                 33
/s/ Jarett T. LaRochelle
Jarett T. LaRochelle




                           34
