                                                01-15-00856-CV




DATE 10/8/2015
                                                                                                             FILED IN
R




                                              NOTICE OF APPEALS                                       1st COURT OF APPEALS
                                            ASSIGNMENT OF COURT OF APPEALS                                HOUSTON, TEXAS
                                                                                                      10/8/2015 4:39:51 PM
TO:         1ST COURT OF APPEALS
                                                                                                      CHRISTOPHER A. PRINE
                                                                                                              Clerk

From:       Deputy Clerk: IRMA MEDINA
            Chris Daniel, District Clerk
            Harris County, T E X A S



CAUSE: 2012-52286

VOLUME                       PAGE                       OR          IMAGE # 67371346

DUE 12/15/2015                                        ATTORNEY 24041501

NOTICE OF APPEAL HAS BEEN ASSIGNED TO THE 1ST

DATE ORDER SIGNED:                         7/17/2015

MOTION FOR NEW TRIAL FILED: 8/17/2015

REQUEST TRANSCRIPT DATE FILED                                        N/A

NOTICE OF APPEAL DATE FILED                                         10/8/2015

NUMBER OF DAYS: ( CLERKS RECORD ) 120
FILE ORDERED: YES                                NO             IMAGED FILED:                   YES       NO

CODES FOR NOTICE OF APPEAL: BC, C

                                                                     CHRIS DANIEL
                                                                     Harris County, District Clerk


                                                                     By: /s/IRMA MEDINA
                                                                            IRMA MEDINA, Deputy

BC        NOTICE OF APPEAL FILED
BG        NOTICE OF APPEAL FILED – GOVERNMENT
C         JUDGMENT BEING APPEALED
D-        ACCELERATED APPEAL
OA        NO CLERK’S RECORD REQUEST FILED
O         CLERK’S RECORD REQUEST FILED (W/NOTICE OF APPEAL)
NA        AMENDED NOTICE OF APPEAL




AP9 R04-30-92 S:\FormsLib\Civil Bureau\Civil Courts & Post Judgment\Post Trial\Appeal Status Card              Revised 01-18-2013
                                                                                                     10/8/2015 3:27:26 PM
                                                                                Chris Daniel - District Clerk Harris County
                                                                                                   Envelope No. 7295801
                                                                                                        By: Raven Hubbard
                                                                                             Filed: 10/8/2015 3:27:26 PM



                                        NO. 2012-52286

IN THE MATTER OF                                  §     IN THE DISTRICT COURT
THE MARRIAGE OF                                   §
                                                  §
AARON WAYNE ADCOCK                                §
AND                                               §      247TH JUDICIAL DISTRICT
AARON WAYNEADCOCK                                 §
                                                  §
AND IN THE INTEREST OF                            §
L.G.A., A CHILD                                   §     HARRIS COUNTY, TEXAS

                                     NOTICE OF APPEAL

         This Notice of Appeal is filed by Aaron Wayne Adcock, Respondent, a party to this

proceeding who seeks to alter the trial court's judgment or other appealable order.

         1.    The trial court, cause number, and style of this case are as shown in the caption

above.

         2.    The judgment or order appealed from was signed on July 17, 2015.

         3.    Aaron Wayne Adcock desires to appeal from all portions of the judgment.

         4.    This appeal is being taken to either the First or Fourteenth Court of Appeals.

         5.    This notice is being filed by Aaron Wayne Adcock.

         6.    This is an accelerated appeal. This is not a parental termination case or a child

protection case.



                                             Respectfully submitted,

                                             Shirley A. Mitchell, P.C.
                                             1001 Texas Ave.
                                             Suite 1400
                                             Houston, TX 77002
                                             Tel: (713) 328-6812
                                             Fax: (281) 377-5899
                                             By:
                                                   Shirley A. Mitchell
                                                   State Bar No. 24041501
                                                   sm@shirleymitchelllaw.com
                                                   Attorney for Aaron Wayne Adcock


                                     Certificate of Service

       I certify that a true copy of this Notice of Appeal was served in accordance with rule 9.5

of the Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows:

Party: Aaron Wayne Adcock

Lead attorney: Briscoe Cain

Address of service: 2318 Center St., Suite 310, Deer Park, TX 77536



Method of service: by fax at 281-715-4327

Date of service: October 8, 2015




                                             Shirley A. Mitchell
                                             Attorney for Respondent
                                                                                                     8/15/2015 8:09:12 PM
                                                                                Chris Daniel - District Clerk Harris County
                                                                                                   Envelope No. 6514085
                                                                                                      By: Sue Peavy-Gunn
                                                                                           Filed: 8/17/2015 12:00:00 AM

                                         NO. 2012-52286

IN THE MATTER OF                                  §      IN THE DISTRICT COURT
THE MARRIAGE OF                                   §
                                                  §
LYN LOUISE ADCOCK                                 §
AND                                               §      247TH JUDICIAL DISTRICT
AARON WAYNE ADCOCK                                §
                                                  §
AND IN THE INTEREST OF                            §
L.G.A., A CHILD                                   §      HARRIS COUNTY, TEXAS

                                 MOTION FOR NEW TRIAL

       This Motion for New Trial is brought by Aaron Wayne Adcock, Respondent, who shows

in support:

       1.      On July 17, 2015 a judgment was signed by this Court in this case.

       2.      A new trial should be granted to Movant because the evidence is legally and

factually insufficient to support this Court's judgment. Specifically, the evidence is legally and

factually insufficient to support this Court's judgment based on the following findings of fact:

       b. That, Petitioner was awarded 50% of Respondent, Aaron Wayne Adcock’s retirement

benefits in 401K arising out of Aaron Wayne Adcock’s employment with UPS from September 6,

2008 to December 23, 2013 in the Final Decree of Divorce between the parties. (See pg. 1,

Exhibit 7, Default Order Compelling Entry of Qualified Domestic Relations Order).

       IT IS ORDERED that the parties shall have the QDRO drafted by Richard Johnston in

Spring, Texas of QDRO Services, LLC, and that the parties submit necessary documents to

QDRO Services by 5:00 PM on Monday, July 6, 2015. (See pg. 2, Exhibit 7, Default Order

Compelling Entry of Qualified Domestic Relations Order).

       IT IS FURTHER ORDERED that the parties split (50/50) the costs associated with

preparation of the QDRO by QDRO Services, LLC and that Respondent, Aaron Wayne Adcock



                                                                                                        1
shall pay his share of said cost to Petitioner, Lyn Louise Wallin, on or before August 1, 2015.

       IT IS FURTHER ORDERED that Petitioner, Lyn Louise Wallin is awarded a judgment

for attorney’s fees in the amount of $1,200.00 (twelve hundred) and it is ordered that

Respondent, Aaron Wayne Adcock shall pay $1,200.00 in attorney’s fees, expenses and cost

directly to Petitioner’s attorney, Briscoe Cain, on or before August 1, 2015. (See pg. 2, Exhibit 7,

Default Order Compelling Entry of Qualified Domestic Relations Order).

       3.      The Respondent doesn’t dispute that the Petitioner was awarded 50% of the

Respondent’s 401K arising out of the Respondent’s employment with UPS or that the

Respondent was ordered to pay 50% of the cost to prepare the QDRO. The Respondent argues

that the Final Decree of Divorce signed by this court on February 6, 2014 did not order Aaron

Wayne Adcock to be responsible for preparing or facilitating the preparation of a Qualified

Domestic Relations Order (hereafter QDRO) for the benefit of the Petitioner. (See Exhibit 3,

Final Decree of Divorce).

        Since, there is no underlying order requiring that the Respondent's attorney, Shirley A.

Mitchell, prepared the Petitioner's Qualified Domestic Relations Orders, as alleged in the

Petitioner’s pleadings or any order stating that Aaron Wayne Adcock was ordered to prepare or

facilitate the preparation of the QDRO for the Petitioner. (See Exhibit 2, Petition to Compel

Entry of Qualified Domestic Relations Order). Therefore, as a matter of law this court can’t

compel Aaron Wayne Adcock to enter a Qualified Domestic Relations Order on the behalf of the

Petitioner because there is no provision in the Final Decree of Divorce. Further, at no time did

the Petitioner’s filing of her Petition to Compel Entry of QDRO was there an agreement or

payment request made to Aaron Wayne Adcock by the Petitioner for payment of 50% of any cost

associated with the preparation of the QDRO for UPS. Additionally, the Petitioner requested that



                                                                                                  2
my attorney, Shirley A. Mitchell, prepare the QDRO documents then refused to pay the amount

requested. I have already paid the requested fees to Shirley A. Mitchell for the preparation of the

UPS and Air Force retirement benefits.

       Under the Texas Rules of Civil Procedure, the court can only compel a party to perform

(Rule 215) or comply with a specific act (Rule 198) if there is an underlying order or discovery

request. The facts alleged in the Petitioner's pleadings do not create a liability to the Respondent

despite the Respondent’s failure to appear at the hearing. (See Exhibit 7, Default Order

Compelling Entry of Qualified Domestic Relations Order).

       Finally, the Petitioner’s pleadings are defective on their face and contrary to Texas

statutes. The Petitioner has brought the wrong cause of action before and cannot prevail in a

contempt actions such as a Petition Compelling Entry of QDRO. Since a contempt action is not

proper under the circumstances alleged by the Petitioner a granting of attorney fees, cost and

directing the Respondent to perform specific acts not addressed in the Final Decree of Divorce or

the Petitioner’s pleadings is an abuse of discretion by the court.

       4.      The Respondent did not actual notice of the trial setting/hearing until after the

Default Judgment was entered by the court. (See the attached Supporting Declaration of Aaron

Adcock filed with this Motion for New Trial.).

       5.      The above errors amounted to such a denial of Movant's rights as was reasonably

calculated to cause and probably did cause rendition of an improper judgment in the case. Tex.

R. App. P. 44.1(a)(1).

       6.      Aaron Wayne Adcock has a meritorious defense to the cause of action alleged in

this case. (See attached Supporting Declaration and argument herein).

       7.      The granting of a new trial would not injure Lyn Louise Wallin.



                                                                                                  3
       8.      Justice will not be properly served unless a new trial is granted.

       Aaron Wayne Adcock prays that the Court set aside the judgment signed on July 17,

2015 and grant a new trial.

                                                Respectfully submitted,

                                                Shirley A. Mitchell, P.C.
                                                1001 Texas Ave. Suite 1400
                                                Houston, TX 77002
                                                Tel: (713) 328-6812
                                                Fax: (281) 377-5899

                                                By: /s/ Shirley A. Mitchell
                                                   Shirley A. Mitchell
                                                   State Bar No. 24041501
                                                   sm@shirleymitchelllaw.com
                                                   Attorney for Lyn Louise Adcock



                                           Notice of Hearing

       The above motion is set for hearing on                      at               . m. in 247TH

Judicial District, Harris County, Texas.

SIGNED on                                             .



                                                Judge or Clerk



                                      Certificate of Service

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

accordance with the Texas Rules of Civil Procedure on August 15, 2015.

                                                /s/Shirley A. Mitchell
                                                Shirley A. Mitchell
                                                Attorney for Aaron Wayne Adcock



                                                                                               4
JU2FN (NSD#)     JUSTICE INFORMATION MANAGEMENT SYSTEM      OCT 08, 2015(C1)
INT6510                     CIVIL CASE INTAKE               OPT: _____ - INT
                          GENERAL PARTY INQUIRY             PAGE:    1 -    1

CASE NUM: 201252286__ PJN> __ TRANS NUM: _________ CURRENT COURT: 247 PUB? _
CASE TYPE: FOCAS - DIVORCE WITH CHILDREN    CASE STATUS: DISPOSED (FINAL)
STYLE: ADCOCK, LYN LOUISE                 VS ADCOCK, AARON WAYNE
=============================================================================
                        **** INACTIVE PARTIES ****
  PJN PER/CONN COC BAR          PERSON NAME                 PTY   ASSOC. ATTY
  NUM    NUMBER                                            STAT
_     00004-0001 XDF 24072214 ADCOCK, LYN LOUISE                 LONGWORTH, DA
_     00003-0001 XPL 24041501 ADCOCK, AARON WAYNE                MITCHELL, SHI
_     00005-0001 MHP          RAMON A LAVAL
_     00002-0001 DEF 24041501 ADCOCK, AARON WAYNE                MITCHELL, SHI
_     00001-0001 PLT 24072214 ADCOCK, LYN LOUISE                 LONGWORTH, DA
_     00001-0001 PAP 24048102 BANIEH, DAMIANE A. CURVEY
_     00001-0001 PAP 05286550 CURTIS, ROSALIND W.


==> (7) CONNECTION(S) FOUND
1=ACTIVE      2=ATY. INQ.   3=ACT.ENTRY   4=ISS. SERV.   5=DOC. INQ.
6=CASE INQ.   7=BACKWARD    8=FORWARD     9=PTY. ADDR.   10=REFRESH    11=HELP
