                                        NO. 12-15-00203-CV

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

BART DALTON,                                              §       APPEAL FROM THE
APPELLANT

V.                                                        §       COUNTY COURT AT LAW

CAROL DALTON,
APPELLEE                                                  §       NACOGDOCHES COUNTY, TEXAS

                                        MEMORANDUM OPINION
         Bart Dalton appeals from post-divorce enforcement orders rendered in favor of his ex-
wife Carol Dalton. In six issues, Bart asserts the trial court lacked jurisdiction to render the
qualified domestic relations order, the trial court impermissibly altered the terms of the divorce
decree, his retirement assets are exempt from seizure, the amount awarded is unsupported by the
record, the trial court erred in refusing to vacate an earlier wage withholding order, and the trial
court violated Bart’s due process rights. Because the evidence does not support the amount
awarded, we modify the order to reflect the correct amount. We affirm as modified.


                                                 BACKGROUND
         The County Court at Law for Nacogdoches County rendered a decree dissolving the
Daltons’ marriage on September 29, 2011.                  The decree gave full faith and credit to, and
incorporated, an “Order of Separate Maintenance” (OSM) rendered by the Rogers County
District Court of Oklahoma.1 The OSM disposed of the parties’ claims regarding child custody,
child support, property division, debt division, spousal support, attorney’s fees, and costs.
Pursuant to that order, Bart was required to pay Carol “support alimony in the amount of


         1
          See In re Marriage of Dalton, 348 S.W.3d 290 (Tex. App.−Tyler 2011, no pet.) (held that the OSM was a
properly authenticated foreign judgment, and an enforceable final Texas judgment, entitled to full faith and credit).
$1,309,014.00 to be paid to [Carol] at a rate of $6,060.25 per month beginning January 1, 2007,
and every month thereafter until paid in full or until further Order of the Court.”
       Since shortly after the divorce decree was rendered, Carol has attempted to obtain
compliance from Bart. Within a month of the divorce, the court rendered a wage withholding
order for child support and spousal support. Carol repeatedly moved for enforcement of the
order, asserting that Bart was in arrears on child support, spousal support, and other obligations.
She requested that, in addition to being required to pay the arrearages, Bart be held in contempt.
She also filed a petition for a qualified domestic relations order (QDRO) regarding the full
amount of spousal support not covered by the withholding order, along with all judgments for
unpaid child support, spousal support, and attorney’s fees. Several months later, at hearings in
April and May 2012, the court heard Carol’s motions, as well as Bart’s motion to revoke the
wage withholding order. Nothing was resolved at that time.
       Apparently, with the exception of certain temporary orders, the parties engaged in
extended negotiations before the court ruled on these matters. On April 15, 2015, the court
granted Carol’s petition for a QDRO and denied Bart’s motion to terminate the wage
withholding order. On July 10, 2015, a hearing was held on Bart’s renewed motion to vacate the
withholding order and his motion to release his retirement account funds. That day, the court
found Bart in contempt for failure to comply with the terms of the divorce decree and rendered a
QDRO assigning to Carol a portion of Bart’s retirement benefits for the alimony arrearages and
for attorney’s fees.    Additionally, the trial court dismissed Bart’s motion to vacate the
withholding order.     Bart timely filed a notice of appeal regarding these three orders.      On
September 3, 2015, having previously found Bart in contempt, the trial court rendered an order
that Bart serve forty-five days in jail and pay certain amounts owed. On the same day, the court
signed an amended QDRO, changing the amount awarded for attorney’s fees but leaving the
remaining terms as they were originally. Bart filed a supplemental notice of appeal complaining
of the amended QDRO.


                                          JURISDICTION
       In his first issue, Bart contends the trial court lacked jurisdiction to render the First
Amended Qualified Domestic Relations Order. He argues that the divorce decree and OSM did
not permit payment of his retirement benefits to Carol. He further argues that the obligation



                                                 2
Carol sought to satisfy is “contractual alimony” and associated attorney’s fees which cannot be
satisfied by his retirement benefits.
       The question of jurisdiction, the court’s authority to act, is an issue of law we review de
novo. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993);
Marshall v. Priess, 99 S.W.3d 150, 156 (Tex. App.−Houston [14th Dist.] 2002, no pet.). Texas
Family Code Section 9.101 provides that the court that rendered the decree of divorce retains
continuing, exclusive jurisdiction to render an enforceable qualified domestic relations order
permitting payment of retirement plan benefits to an alternate payee. TEX. FAM. CODE ANN.
§ 9.101 (West 2006).
       Accordingly, the trial court had jurisdiction to render a QDRO because it rendered the
divorce decree. See id. The basis for Bart’s argument goes not to the question of jurisdiction,
but to the viability of the court’s order as a means of enforcement of the divorce decree. As we
discuss under Bart’s third issue, that argument has no merit. We overrule Bart’s first issue.


                                  AMOUNT AND EFFECT OF THE QDRO
       In his second issue, Bart asserts that the trial court erred by rendering a QDRO that
altered the terms of the divorce decree and the wage withholding order. He argues that the trial
court impermissibly modified the decree, the OSM, and the wage withholding order when it
ordered him to make alimony payments and imposed payment dates and sources of payment
which were not originally provided for in either the OSM or the divorce decree. In his fourth
issue, Bart asserts that the amount awarded in the QDRO is unsupported by the record. He
argues that no evidence was admitted at the May 7, 2012 hearing.
Standard of Review
       When interpreting a divorce decree, courts apply the general rules regarding construction
of judgments. Hagen v. Hagen, 282 S.W.3d 899, 901 (Tex. 2009). We construe the decree as a
whole to harmonize and give effect to the entire decree. Id. If the decree is unambiguous, the
court must adhere to the literal language used. Id.
       We review the trial court’s ruling on a post-divorce motion for enforcement of a divorce
decree under an abuse of discretion standard. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex.
App.−Houston [1st Dist.] 2006, pet. denied) (op. on reh’g). A trial court abuses its discretion
only when it has acted in an unreasonable or arbitrary manner, or when it acts without reference



                                                 3
to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex. 1985). In family law cases, legal and factual sufficiency challenges do not constitute
independent grounds for asserting error, but are relevant factors in determining whether the trial
court abused its discretion. In re Marriage of C.A.S. and D.P.S., 405 S.W.3d 373, 383 (Tex.
App.−Dallas 2013, no pet.). To determine whether the trial court abused its discretion because
the evidence is legally or factually insufficient to support the trial court’s decision, we consider
whether the trial court (1) had sufficient evidence upon which to exercise its discretion, and (2)
erred in its application of that discretion. Id. In evaluating a legal sufficiency challenge, we
credit evidence that supports the finding if a reasonable fact finder could, and disregard contrary
evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005). The test for legal sufficiency is “whether the evidence at trial would enable
reasonable and fair-minded people to reach the verdict under review.” Id.
Applicable Law
       An order enforcing a divorce decree may not amend, modify, alter, or change the division
of property made or approved in the decree of divorce. TEX. FAM. CODE ANN. § 9.007 (West
2006). A QDRO is a species of post-divorce enforcement order. Gainous, 219 S.W.3d at 107.
The purpose of a QDRO is to create or recognize an alternate payee’s right, or to assign an
alternate payee the right, to receive all or a portion of the benefits payable to a participant under
a retirement plan. 29 U.S.C.A. § 1056(d)(3)(B) (Westlaw through Pub. L. No. 113-295).
Analysis
       The Oklahoma court’s “Order of Separate Maintenance” provided, in pertinent part, that:


         The whole of the agreement of the parties is incorporated herein and set out below.
         Based thereon, the Court FINDS and ORDERS as follows:
         ....

         19. The parties agree that [Carol] is entitled to support alimony in the amount of $1,309,014.00
         to be paid to [her] at a rate of $6,060.25 per month beginning January 1, 2007 and every month
         thereafter until paid in full or until further Order of the Court.


The divorce decree gave full faith and credit to the Oklahoma OSM and approved and affirmed
the terms of the OSM. It also incorporated into the divorce decree the terms of that document,
which sets out the amount of monthly payments Bart was ordered to make. The QDRO assigned
a portion of the benefits in Bart’s retirement savings plan to Carol. Specifically, the order



                                                        4
assigned to Carol $180,163.56 in support alimony arrearages, plus $8,400.00 in attorney’s fees.
No ambiguity has been alleged and we detect none. The QDRO uses applicable federal law to
enforce the trial court’s prior order. See Quijano v. Quijano, 347 S.W.3d 345, 353-54 (Tex.
App.−Houston [14th Dist.] 2011, no pet.). The court did not modify the divorce decree by its
imposition of payment dates and sources of payment. The QDRO does not change the division
of property. As allowed by law, it assigns to Carol the right to distribution of funds from Bart’s
retirement account in satisfaction of the alimony arrearage owed. See Gainous, 219 S.W.3d at
106-07. Likewise, the October 20, 2011 wage withholding order mirrors the Oklahoma court’s
OSM with regard to the amount of spousal support, and it reflects the trial court’s April 2011
judgment for arrearages. The QDRO does not alter the wage withholding order. Accordingly,
we overrule Bart’s second issue.
       Regarding the amount awarded, evidence was presented at the April 12, 2012 hearing.
Carol testified as to the amount of child support arrearages, spousal support arrearages, and the
unpaid mortgages on their home in Oklahoma. The record indicates that, from February 2010
through July 2010, pursuant to a temporary order, Bart was to pay $3,000.00 per month, and then
the amount would revert to $6,060.25 per month. On April 6, 2011, Carol obtained a judgment
for $39,897.06 in arrearages for unpaid alimony from February 2010 through November 2010,
including $3,000.00 for each of the six months from February 2010 through July 2010 and
$6,060.25 for each of the remaining months, minus credit for two payments. Additionally, Carol
was awarded $6,000.00 in attorney’s fees.
       Carol presented Exhibit M-4 which shows that Bart was to pay $6,060.25 per month from
January 2007 through March 2012 for a total of $375,735.50 due for support alimony in that time
period. This exhibit also showed that, during that time period, Bart paid a total of $192,514.14 in
support alimony. The exhibit indicates that subtracting the amount paid from the total owed for
this time period leaves an arrearage of $183,221.36. If we looked solely to this exhibit, it would
support the trial court’s award of $180,163.56.
       However, Carol’s Exhibit M-3 indicates that, between November 2011 and April 2012,
Bart paid $9,057.80 which was applied to the 2011 judgment. It also shows that, during that
same time period, he paid $9,008.47 which was applied to his current obligations. Inexplicably,
the $9,057.80 is not reflected on Exhibit M-4 while the $9,008.47 is. Additionally, Exhibit M-3
reflects the six months of $3,000.00 payments while Exhibit M-4 does not. Rather, Exhibit M-4



                                                  5
indicates that Bart owes $6,060.25 for each of the six months.            Therefore, Exhibit M-4
mistakenly inflates Bart’s alimony obligation by $18,361.50 for this time period and mistakenly
fails to credit him with the $9,057.80 payment. After these adjustments, Bart’s total alimony
obligation for the time period under consideration was $357,374.00 and the total amount he paid
was $201,571.94. Subtracting the total paid from the total obligation leaves arrearages in the
amount of $155,802.06. Accordingly, the evidence does not support the trial court’s award of
$180,163.56. The evidence conclusively establishes that Bart is in arrears in the amount of
$155,802.06. See City of Keller, 168 S.W.3d at 815-16. Because the trial court abused its
discretion in awarding an amount not supported by the record, we modify the QDRO to reflect
the correct amount. See Eberstein v. Hunter, 260 S.W.3d 626, 629 (Tex. App.−Dallas 2008, no
pet.). We sustain Bart’s fourth issue.


                                   SEIZURE OF RETIREMENT ASSETS
       In his third issue, Bart contends that the trial court erred by ordering the seizure of his
retirement assets. He characterizes the award at issue as contractual alimony and asserts that it is
nothing more than a debt.      He argues that Texas Property Code Section 42.0021 exempts
retirement assets from seizure for the satisfaction of a debt. Additionally, Bart asserts that the
contractual alimony provision does not comply with the Texas Family Code and neither the
OSM nor the divorce decree orders him to pay alimony to Carol. Therefore, his argument
continues, there is no “domestic relations order” upon which the trial court could have entered
the QDRO.
Applicable Law
       In Texas, alimony agreements incorporated into a final divorce decree are treated as
contracts governed by the law of contracts. Allen v. Allen, 717 S.W.2d 311, 313 (Tex. 1986).
Accordingly, in Texas, a person may contract to support his spouse and children, and that
obligation, to the extent it exceeds his legal duty, is a debt. Ex parte Hall, 854 S.W.2d 656, 658
(Tex. 1993). Texas Property Code Section 42.0021 provides that a person’s right to assets in
pension plans and retirement accounts are, to an extent, exempt from seizure for the satisfaction
of debts. TEX. PROP. CODE ANN. § 42.0021 (West 2014).
       The Employee Retirement Income Security Act (ERISA) is a comprehensive federal
system regulating employee benefit plans to protect contractually defined benefits. Firestone



                                                 6
Tire & Rubber Co. v. Bruch, 489 U.S. 101, 113, 109 S. Ct. 948, 956, 103 L. Ed. 2d 80 (1989).
ERISA includes expansive preemption provisions, which are intended to ensure that the
regulation of employee benefit plans be exclusively a federal concern. Alessi v. Raybestos-
Manhattan, Inc., 451 U.S. 504, 523, 101 S. Ct. 1895, 1906, 68 L. Ed. 2d 402 (1981). Congress
has statutorily provided that ERISA shall supersede any and all state laws insofar as they may
relate to any employee benefit plan. 29 U.S.C.A. § 1144(a) (Westlaw through Pub. L. No. 109-
280); Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63-67, 107 S. Ct. 1542, 1546-48, 95 L. Ed. 2d
55 (1987); Barnett v. Barnett, 67 S.W.3d 107, 112 (Tex. 2001). A law relates to an employee
benefit plan if it has a connection with or reference to such a plan. Shaw v. Delta Air Lines,
Inc., 463 U.S. 85, 96-97, 103 S. Ct. 2890, 2900, 77 L. Ed. 2d 490 (1983).
       ERISA requires that a pension plan must provide that benefits may not be assigned or
alienated. 29 U.S.C.A. § 1056(d)(1) (Westlaw through Pub. Law 113-295.) However, ERISA
excepts from this antiassignment rule state laws providing for rights and payments under a
QDRO. Id. § 1056(d)(3)(A) (Westlaw through Pub. Law 113-295). ERISA defines “domestic
relations order” as any judgment, decree, or order, including approval of a property settlement
agreement, which relates to the provision of child support, alimony payments, or marital property
rights to a spouse, former spouse, child, or other dependent of a participant, and is made pursuant
to a state domestic relations law. Id. § 1056(d)(3)(B)(ii).
Analysis
       Bart contends that the award at issue is contractual alimony and the trial court’s order
does not meet the ERISA definition of “domestic relations order.” We disagree. Bart and Carol,
while residents of Oklahoma, entered into an agreement settling their claims concerning, among
other things, spousal support. This agreement was incorporated into the Oklahoma court’s OSM.
The Nacogdoches County Court at Law gave full faith and credit to the OSM and incorporated it
into the divorce decree. Pursuant to the Texas Family Code, Oklahoma law governs the nature
of payments under the support order. Act of May 28, 2003, 78th Leg., R.S., ch. 1248, § 34, 2003
Tex. Gen. Laws 3521, 3533 (amended 2015) (current version at TEX. FAM. CODE ANN.
§ 159.604(a)(1) (West Supp. 2016)).         Under Oklahoma law, when the agreement was
incorporated into the judgment, the agreement was extinguished and the rights of the parties
were no longer contractual but became determinable and enforceable based upon the judgment.
Dickason v. Dickason, 607 P.2d 674, 677 (Okla. 1980). Oklahoma law authorizes the award of



                                                 7
alimony as support allowance in a decree of separate maintenance. OKLA. STAT. ANN. tit. 43,
§§ 108, 129 (Westlaw through 2016 2d Sess.); Roberts v. Roberts, 657 P.2d 153, 156 n.2 (Okla.
1983). Accordingly, the divorce decree relates to the provision of alimony payments and is
made pursuant to a state domestic relations law, thereby meeting the ERISA definition of
“domestic relations order.” 29 U.S.C.A. § 1056(d)(3)(B)(ii).
       Giving full faith and credit to the OSM, under Oklahoma law, which governs the nature
of the payments, the agreement is not contractual and therefore not debt. See Ex parte Hall, 854
S.W.2d at 658. It follows that, because the support award is not debt, property code Section
42.0021 does not apply here. TEX. PROP. CODE ANN. § 42.0021; Dickason, 607 P.2d at 677.
Additionally, the award was made pursuant to a state domestic relations law and ERISA
preempts Section 42.0021 to the extent it may relate to Bart’s retirement plan. See Barnett, 67
S.W.3d at 112. Therefore, the trial court did not err in ordering the seizure of Bart’s retirement
benefits. We overrule Bart’s third issue.


                                            WITHHOLDING ORDER
       In his fifth issue, Bart contends the trial court erred in refusing to vacate the withholding
order because the Family Code’s chapter eight remedy of garnishment of wages is not available.
He argues that the obligation at issue is contractual alimony, an agreement to pay maintenance
under Section 7.006 of the Texas Family Code, which is not enforceable by garnishment of
wages. Bart further asserts that garnishment in this situation is prohibited by Article 16, Section
28 of the Texas Constitution which allows garnishment for court ordered spousal maintenance.
Waiver
       Carol asserts that the trial court, by its July 10, 2015 order, properly dismissed Bart’s
motion to vacate the withholding order based on res judicata. The withholding order was signed
on October 20, 2011. Bart filed a motion to vacate the withholding order in 2012, which the trial
court denied on April 15, 2015. Without citation to authority, Carol contends that the April 15
order was appealable and became final when Bart did not appeal it, and therefore, his complaint
about the April 15 order has been waived. We disagree.
       An appeal may be taken only from a final judgment, unless a statute specially authorizes
an interlocutory appeal. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A
judgment issued without a conventional trial is final for purposes of appeal if it actually disposes



                                                 8
of all claims and parties then before the court, or it states with unmistakable clarity that it is a
final judgment as to all claims and parties. Id. at 192-93.
       Here, the April 15 order denied Bart’s motion to terminate the withholding order and
ordered that the withholding order shall remain in full force and effect. There is no mention of
other matters or finality. Although the trial court had granted Carol’s petition for a QDRO, it
had not yet actually rendered a QDRO. Thus, the issue of enforcement of the spousal support
award, of which wage withholding was a part, remained pending. Therefore, the April 15 order
denying Bart’s motion to terminate the withholding order was not final. See id. Further, there is
no statutory authorization for an interlocutory appeal that would be applicable in this instance.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (West Supp. 2016). While the statute,
under certain circumstances, authorizes a trial court to permit an appeal from an order that is not
otherwise appealable, this provision of the statute was not invoked. See id. Therefore, the April
15, 2015 order was not appealable, and an appeal from the July 10, 2015 order is permissible.
Wage Withholding
       Pursuant to the Texas Family Code, Oklahoma law governs the nature of payments under
the support order in this case. Act of May 28, 2003, 78th Leg., R.S., ch. 1248, § 34, 2003 Tex.
Gen. Laws 3521, 3533. As explained above, under Oklahoma law, when the parties’ agreement
was incorporated into the judgment, their agreement was extinguished, and the rights of the
parties were no longer contractual but became enforceable based on the judgment.                See
Dickason, 607 P.2d at 677. Pursuant to the Uniform Interstate Family Support Act, a responding
tribunal of this state shall apply the procedures and remedies of this state to enforce current
support and collect arrears and interest due on a support order of another state registered in
Texas. TEX. FAM. CODE ANN. § 159.604(c) (West Supp. 2016). Thus, we look to Texas law to
determine if wage withholding is an available remedy to enforce the Oklahoma OSM.
       Texas Family Code Section 8.101(a) permits income withholding in a proceeding in
which periodic payments of spousal maintenance are ordered or enforced. Id. § 8.101(a) (West
Supp. 2016). Bart’s emphasis on the parties’ agreement on which the OSM was based is
misplaced. Under Oklahoma law, that agreement was extinguished. Therefore, Carol sought to
enforce a court order for spousal maintenance, not a contract for support.              The Texas
Constitution and the Texas Family Code permit wage withholding to collect court ordered
spousal maintenance. TEX. CONST. art. XVI, § 28; TEX. FAM. CODE ANN. § 8.101(a). Therefore,



                                                 9
the trial court did not err in refusing to vacate the wage withholding order. We overrule Bart’s
fifth issue.


                                               DUE PROCESS
         In his sixth issue, Bart asserts that the trial court violated his rights to due process by
applying Oklahoma law to enforce orders rendered in a Texas court as stated in conclusions of
law two, three, four, and five. He argues that the QDRO is void because “it was beyond the
power of the court to apply Oklahoma law in this Texas action to enforce Texas orders.”
         This court reviews de novo a trial court’s conclusions of law. BMC Software Belg., N.V.
v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We are not bound by the trial court’s legal
conclusions, but the conclusions of law will be upheld on appeal if the judgment can be sustained
on any legal theory supported by the evidence. Fulgham v. Fischer, 349 S.W.3d 153, 157-58
(Tex. App.−Dallas 2011, no pet.).
         Conclusions of law two and three concern enforcement by contempt. This court lacks
jurisdiction to consider complaints concerning contempt in this appeal. See Tracy v. Tracy, 219
S.W.3d 527, 530 (Tex. App.−Dallas 2007, no pet). Conclusion of law four states that Texas and
Oklahoma law provide for the recovery of attorney’s fees for nonpayment of support alimony
and amounts due to mortgage lenders. The Texas Family Code provides that the trial court may
award attorney’s fees in a post-decree enforcement proceeding. TEX. FAM. CODE ANN. § 9.014
(West Supp. 2016). Because we apply Texas law to enforce the Oklahoma support order,
whether the court concluded that Oklahoma law provides for the recovery of attorney’s fees is
irrelevant. See id. § 159.604(c). We note also that Bart has not complained of the attorney’s fees
award.
         In conclusion of law five, the trial court concluded that Texas law and Oklahoma law
provide for wage withholding for both current and delinquent support alimony and attorney’s
fees incurred for the collection of same. As explained above, the trial court properly applied
Texas law regarding wage withholding. See id. Therefore, its determination regarding whether
Oklahoma law also allows wage withholding to collect support alimony and attorney’s fees is
irrelevant. The trial court’s conclusions of law do not violate Bart’s rights to due process. To
the extent we have jurisdiction over it, we overrule Bart’s sixth issue.




                                                 10
                                                   DISPOSITION
         In conformance with the evidentiary record, we modify that part of the QDRO assigning
Carol $180,163.56 to reduce the amount to $155,802.06. As modified, we affirm the trial
court’s First Amended Qualified Domestic Relations Order.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered January 11, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                         11
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                         JANUARY 11, 2017


                                        NO. 12-15-00203-CV


                                          BART DALTON,
                                             Appellant
                                                V.
                                         CAROL DALTON,
                                             Appellee


                               Appeal from the County Court at Law
                     of Nacogdoches County, Texas (Tr.Ct.No. C0824936)

                    THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
order of the court below.
                    In accordance with this Court’s opinion of this date, it is therefore
ORDERED, ADJUDGED and DECREED that the First Amended Qualified Domestic Relations
Order of the trial court is modified to reflect that the amount assigned to the Alternate Payee is
$155,802.06.
                    It is FURTHER ORDERED, ADJUDGED and DECREED that the First
Amended Qualified Domestic Relations Order of the court below is affirmed as modified.
                    It is FURTHER ORDERED that all costs of this appeal are hereby adjudged
against the party incurring same; and that the decision be certified to the court below for
observance.
                    James T. Worthen, Chief Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
