                                  NO. 12-17-00049-CV

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

RANDALL ONEAL MATHIS,                           §      APPEAL FROM THE 115TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

FREDERICKA ANTOINETTE
MATHIS,                                         §      UPSHUR COUNTY, TEXAS
APPELLEE
                                  MEMORANDUM OPINION
       Randall Oneal Mathis appeals the trial court’s divorce decree. In two issues, Randall
contends that the trial court abused its discretion by disproportionately awarding a greater
portion of the community property estate to Fredericka Antoinette Mathis and awarding her
spousal maintenance. We modify the trial court’s judgment to delete the award of spousal
maintenance and affirm as modified.


                                         BACKGROUND
       Randall and Fredericka were married on July 17, 1999. Fredericka filed for divorce on
November 17, 2014. The couple had two children, ages eighteen and thirteen at the time of the
final hearing for divorce. Randall, who worked seventeen years for McDonald’s, developed a
substance abuse problem leading him to criminal activity for which he was first incarcerated in
January 2008. Randall was incarcerated for six of the last eight years the couple was married.
Most recently, Randall was convicted on November 17, 2014 of a second degree felony,
enhanced to a first degree felony for possession of a controlled substance with intent to deliver.
For this offense, he was sentenced to seventeen years in the Texas Department of Criminal
Justice—Institutional Division.
       Between periods of incarceration, Randall was involved in an incident from which he
sustained personal injuries and ultimately received a $900,000 settlement. From the settlement,
he received a net payment of $449,147.65 following payment of his attorney’s fees, expenses,
and medical bills. At the time of the final divorce hearing, he retained $300,444.13 which was
being held in his personal injury attorney’s IOLTA trust account. Between the date of the
settlement and final hearing, approximately $70,000 of Randall’s settlement money was used to
pay household expenses and community debts including the mortgage for the family’s residence
and to acquire a vehicle which was awarded to Fredericka.
       At trial, Fredericka sought a disproportionate division of the marital community estate
and spousal maintenance from Randall. In support, Fredericka testified that she had been
employed the previous eight years at the United States Post Office in Cookville as a
nontraditional full-time clerk, driving forty-eight minutes one way to reach the post office. She
stated that she obtained this job near the time Randall was first incarcerated. She further
testified, based on a budget admitted into evidence, that her total monthly expenses were
$4,682.73. Evidence showed that her net take home pay per month from her job is $2,006.46,
leaving a monthly budget deficit of $2,676.27.
        Although bank documentation shows the parties’ marital residence was valued at
$96,500, Fredericka testified that it is “way less in value.” She added that the house needed a
new roof and had significant plumbing problems which she estimated would require between ten
and fifteen thousand dollars to repair.
       In the divorce decree, the trial court awarded the family residence to Fredericka. The
court ordered her to assume the indebtedness on that property, approximately $54,000 at the time
of trial. The court also awarded Fredericka the property in her possession, two vehicles, and her
retirement account, with a net value of approximately $1,000. Randall received the property in
his possession as well as all of his personal clothing and equipment located at the residence,
which Fredericka was to deliver to him upon his release from prison. Additionally, a house and
real property located at 924 Warren Street in Gilmer was confirmed as Randall’s separate
property and awarded to him. Both parties were awarded all sums of cash in their respective
possession or under their sole control as their sole and separate property.
       The trial court ordered Randall to pay child support of $224.22 per month until the
thirteen year old child of the marriage reaches the age of eighteen. Further, the trial court



                                                 2
ordered Randall to pay Fredericka spousal maintenance of $1,200 per month for three years.
Randall timely appealed.


                              DIVISION OF COMMUNITY PROPERTY
       In his second issue, Randall contends that the trial court abused its discretion by awarding
a grossly disproportionate share of the couple’s community property to Fredericka without any
reasonable basis. He asserts that it is manifestly unjust that Fredericka received almost all of the
community assets because Fredericka has greater earning power than he does and the division of
property provides a windfall to Fredericka.
Standard of Review
       We review a trial court’s division of property under an abuse of discretion standard.
Murff v. Murff, 615 S.W.2d 696, 698 (Tex 1981). It is this court’s duty to consider every
reasonable presumption in favor of the proper exercise of discretion by the trial court in dividing
the community estate. Loaiza v. Loaiza, 130 S.W.3d 894, 899 (Tex. App.—Fort Worth 2004, no
pet.). To determine whether a trial court abused its discretion, we must decide whether the trial
court acted without reference to any guiding rules or principles; in other words, whether the act
was arbitrary or unreasonable. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d
750, 757 (Tex. 2003); Loaiza, 130 S.W.3d at 899.
       Where findings of fact and conclusions of law are not properly requested and none are
filed, the judgment of the trial court must be affirmed if it can be upheld on any legal theory that
finds support in the evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984) (per curiam). In
determining whether some evidence supports the judgment and the implied findings of fact, “it is
proper to consider only that evidence most favorable to the issue and to disregard entirely that
which is opposed to it or contradictory in its nature.” Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990) (per curiam).
Applicable Law
       The trial court has wide discretion in dividing the estate of the parties and that division
should be corrected on appeal only when an abuse of discretion has been shown. Murff, 615
S.W.2d at 698. The trial court is charged with dividing the estate of the parties in a “just and
right” manner, considering the rights of both parties. TEX. FAM. CODE ANN. § 7.001(West 2006).
The community property of the marital estate need not be equally divided. Murff, 615 S.W.2d at



                                                 3
699.   The trial court may order an unequal division of the community property when a
reasonable basis exists for granting that relief. Hailey v. Hailey, 176 S.W.3d 374, 380 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). The trial court may consider such factors as the
spouse’s capacities and abilities, benefits which the party not at fault would have derived from
continuation of the marriage, business opportunities, education, relative physical conditions,
relative financial condition and obligations, disparity of ages, size of separate estates, and the
nature of the property. Murff, 615 S.W.2d at 699.
       In deciding whether an unequal distribution is appropriate, a trial court can consider a
spouse’s fault in causing the divorce. Young v. Young, 609 S.W.2d 758, 762 (Tex. 1980). But
while fault may be considered in the property division, “[t]his does not mean that fault must be
considered in all cases where a divorce is granted on fault grounds.” Id. A trial court is
prohibited from using a spouse’s fault and the property division to punish the errant spouse for
his misdeeds. Id.
Analysis
       Randall contends that there is no reasonable basis for a disproportionate division of the
parties’ community estate. He points out that while fault in the marriage was pled as the basis
for an unequal division of the community estate, the decree specifies the divorce was dissolved
on the no fault basis of unsupportability. The parties’ estate is uncomplicated and the court’s
division of the property is straightforward. Their main community asset is the marital residence
and real property at 1072 Highway 155 North in Gilmer. The record shows that the appraisal
district values the property at $136,340.00. Approximately $54,000 was owed on the mortgage
at the time of trial. Based on the appraisal district valuation, there is about $82,000.00 in equity
in the home. However, other evidence before the trial court conflicts with that valuation. The
mortgagor bank assigned a value of $96,500 in 2003. Though disputed by Randall, Fredericka
testified that the property value is currently well below $96,500. She testified that the home
needs a new roof and that it would take between ten and fifteen thousand dollars to repair the
plumbing issues. Because there were no findings of fact or conclusions of law filed, we imply
all necessary findings to support the trial court’s order. See Worford, 801 S.W.2d at 109. We
disregard evidence that contradicts the order. Id. Thus, we can imply that the trial court
determined there was much less equity in the residence and real property at 1072 Highway 155
North than Randall contends.



                                                 4
       Further, the trial court could consider other factors, such as the size of the separate estate
of the parties in dividing the community estate. Murff, 615 S.W.2d at 699. The evidence
indicates that Randall owns separate property, including a house on Warren Street in Gilmer and
the net proceeds from his personal injury settlement. Prior to Randall’s most recent conviction
and incarceration, he filed a lawsuit seeking recovery of damages for the injuries he received in
the aforementioned incident. Fredericka was not a party to Randall’s lawsuit or otherwise sought
an individual recovery related to the incident in which Randall was injured. The separate
property characterization of the settlement funds held in Randall’s attorney’s IOLTA account
was not in dispute.
       Fredericka’s separate property estate consisted of approximately $1,000.00 in connection
to her retirement account with the postal service. This evidence related to the size of the
respective separate estates supports the unequal division of the parties’ community property. See
id. We conclude that the evidence showing that Randall’s separate property estate was more
valuable than Fredericka’s separate property estate supports the trial court’s division of
community property. Accordingly, the trial court did not abuse its discretion in ordering an
unequal division of property. See id. at 698-99. Further, we cannot say that awarding Fredericka
the vast majority of the community estate was intended to punish Randall for any fault in the
break-up of the marriage. We overrule Randall’s second issue.


                                    SPOUSAL MAINTENANCE
       In his first issue, Randall contends that the trial court abused its discretion by ordering
him to pay spousal maintenance to Fredericka. In addition to arguing that Fredericka is not
eligible for the award, Randall complains that he has no income to pay the award. Therefore, he
contends that the court improperly considered his personal injury settlement proceeds as a source
of income for payment of spousal maintenance.
Standard of Review
       We review an award of spousal maintenance under an abuse of discretion standard.
Stucki v. Stucki, 222 S.W.3d 116, 119 (Tex. App.—Tyler 2006, no pet.); Dunn v. Dunn, 177
S.W.3d 393, 396 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). A trial court abuses its
discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or
without supporting evidence. Dunn, 177 S.W.3d at 396. Under the abuse of discretion standard,



                                                 5
legal and factual sufficiency of the evidence are not independent grounds for asserting error, but
they are relevant factors in assessing whether the trial court abused its discretion. Id. Because of
the overlap between the abuse-of-discretion and sufficiency-of-the-evidence standards of review,
a reviewing court engages in a two-pronged inquiry to determine whether the trial court (1) had
sufficient information on which to exercise its discretion and (2) erred in its application of that
discretion. Day v. Day, 452 S.W.3d 430, 433 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied).
       The applicable sufficiency review comes into play with regard to the first question.
Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.−Dallas 2005, pet. denied). To prevail on a
legal-sufficiency challenge on an issue for which the opposing party had the burden of proof, the
complaining party must show that there is no evidence that would enable reasonable and fair-
minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005); Brown & Brown of Tex., Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 376 (Tex.
App.−Houston [1st Dist.] 2010, pet. denied) (op. on reh’g). Based on the elicited evidence, we
determine whether the trial court made a reasonable decision. Moroch, 174 S.W.3d at 857. A
trial court does not abuse its discretion if there is some evidence of a substantive and probative
character to support the decision. See Granger v. Granger, 236 S.W.3d 852, 855-56 (Tex.
App.—Tyler 2007, pet. denied).
Applicable Law
       Pursuant to the family code, the trial court in a divorce proceeding is authorized to order
one spouse to pay “maintenance” to the other spouse. See TEX. FAM. CODE ANN. §§ 8.001-8.061
(West 2006 & Supp. 2017). “Maintenance” means an award in a suit for dissolution of a
marriage of periodic payments from the future income of one spouse for the support of the other
spouse. TEX. FAM. CODE ANN. § 8.001(1). Spousal maintenance is not property. O’Carolan v.
Hooper, 71 S.W.3d 529, 533 (Tex. App.—Austin 2002, no pet.). The legislative purpose in
enacting provisions for spousal maintenance was to provide temporary and rehabilitative support
for a spouse whose ability for self-support is lacking or has deteriorated over time while engaged
in homemaking activities and whose capital assets are insufficient to provide support. Id.
       A court may not order maintenance that requires an obligor to pay monthly more than the
lesser of (1) $5,000 or (2) twenty percent of the spouse’s average monthly gross income. TEX.
FAM. CODE ANN. § 8.055(a). For purposes of Chapter 8, gross income includes “wage and salary



                                                 6
income and other compensation for personal services” and other specified types of “income.” Id.
§ 8.055(a-1). The statute also identifies certain items not included in gross income, such as
return of principal or capital, accounts receivable, and benefits provided by certain government
programs. Id.
Analysis
         The family code specifies the monetary limits and the acceptable origin of payments
required by an order for maintenance. Therefore, to justify the trial court’s monthly maintenance
award of $1,200, there had to be some evidence in the record that Randall’s post-decree average
monthly gross income, from those specified, legislatively sanctioned sources, was $6,000. See
id. § 8.055. However, Randall was incarcerated at the time Fredericka filed this divorce action
and remained incarcerated at the time of the final hearing. Fredericka conceded that Randall
could not work and therefore, could not generate income while incarcerated. This is not a
situation where a spouse is capable of working but chooses not to work or earn income consistent
with his income earning potential. While incarcerated, Randall will not have the ability to earn
any income. Incumbent in a spousal maintenance award is the obligor spouse’s ability to earn
income to satisfy the maintenance obligation. See id.; Income, BLACK’S LAW DICTIONARY (10th
ed. 2014) (defining income as “[t]he money or other form of payment that one receives, usually
periodically from employment, business, investments, royalties, gifts, and the like”).
         Not only is Randall unable to earn income while incarcerated, the record does not reflect
when Randall may be released on parole. In an effort to obtain a continuance, representations
were made to the trial court prior to the final hearing indicating that Randall may soon be
paroled. It should be noted that Randall testified during the motion for new trial hearing months
later, explaining that he had been turned down for parole and would not be eligible for
reconsideration for parole until September 2017. Whether Randall has been released on parole
or is still incarcerated as of the date of our disposition of this case is not controlling. While it is
unlikely that Randall will serve the entire seventeen year sentence from his current conviction,
the exact date of his release is unknown and as long as he is incarcerated, Randall does not have
an identified source of income upon which the award of spousal maintenance could have been
based.
         Lastly, there is no evidence as to Randall’s wage earning ability after he is released from
prison. There was no evidence presented as to Randall’s income either while employed by



                                                  7
McDonald’s or at any time before his injuries. At fifty years of age with multiple felony
convictions, his employment options will be limited. The size of his personal injury settlement
indicates Randall sustained more than minor physical injuries which will further compromise his
ability to obtain and maintain employment upon his release from prison. Fredericka testified that
she assumed Randall had recovered from his injuries and that she thought he could work. She
stated that he had not sustained a brain injury and that most of his injuries were related to his
back. This subjective opinion provides no real guidance as to the type of work Randall will be
able to perform when released from prison or his income earning potential. The trial court
commented during the motion for new trial hearing that Randall’s child support obligation was
based on a minimum wage calculation. This implies his post-incarceration income earning
ability is limited and inconsistent with a finding of potential income necessary to support a
$1,200 monthly spousal maintenance award.
       Accordingly, Randall lacks “income” from any source identified in Section 8.055(a-1).
He does, however, have a large sum of money at his disposal. By awarding Randall all sums of
cash in his possession or subject to his sole control, the trial court awarded to him the proceeds
from his personal injury settlement. There is nothing in the record reflecting that the money
awarded to Randall was anything other than the remaining proceeds of his personal injury
settlement. In the absence of “income” from the enumerated sources, Randall would be required
to pay spousal maintenance to Fredericka with money from his personal injury settlement.
Therefore, to justify the trial court’s spousal maintenance award, we would have to interpret
Section 8.055(a-1) as allowing the characterization of the money awarded to Randall in the
divorce decree to transform from property to income merely by his continued possession of the
money after entry of the decree. As explained below, we determine that such an interpretation is
inconsistent with the legislature’s intended application of Chapter 8.
       Our primary objective when construing a statute is to ascertain and give effect to the
legislature’s intent. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.
2004). In doing so, we must begin with the plain meaning of the statute’s words, reading the
statute as a whole. Id. We do not view individual provisions in isolation. City of Dallas v. TCI
West End, Inc., 463 S.W.3d 53, 55 (Tex. 2015) (per curiam). We presume the legislature
selected the statute’s language with care, choosing each word for a purpose and purposefully
omitting words not chosen. Id. If the language is unambiguous, we must interpret it according



                                                 8
to its terms, giving meaning to the language consistent with other provisions of the statute. Tex.
Dep’t of Transp., 146 S.W.3d at 642. We must avoid adopting an interpretation that renders any
part of the statute meaningless or superfluous. City of Dallas, 463 S.W.3d at 57. If provisions of
a single statute appear to conflict, we try to harmonize them to effectuate both by assigning each
a meaning that will permit both to stand. In re Morris, 498 S.W.3d 624, 630 (Tex. App.—
Houston [14th Dist.] 2016, orig. proceeding). We further consider the objective the law seeks to
obtain and the consequences of a particular construction. TEX. GOV’T CODE ANN. § 311.023(1),
(5) (West 2013); Tex. Dep’t of Transp., 146 S.W.3d at 642.
       It is established that the trial court may order a spouse to pay a portion of his average
monthly gross income as maintenance. TEX. FAM. CODE ANN. § 8.055(a). The family code
specifically provides that “maintenance” represents periodic payments from future income. Id.
§ 8.001(1). Use of the word “future” implies that the income has yet to be earned or realized.
See, e.g., Future, MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2011) (defining
future as what will exist or occur at a later time). The purpose of spousal maintenance is to
provide rehabilitative support on a temporary basis to allow a spouse to become self-supporting
after the divorce. See O’Carolan, 71 S.W.3d at 533. Whether the future income is derived from
wages, self-employment, rental properties, employment benefits, retirement, pension, investment
gains, gifts or prizes, the operative component of each of the enumerated inclusions under
Section 8.055(a-1) is that the proceeds used for spousal maintenance are expected to be realized
after the divorce is final. Reading the provisions of Chapter 8 together and giving the words
their plain meaning, it is apparent that the legislature intended an award of spousal maintenance
to be based on monies a paying spouse earns or receives after the divorce is final. In short, new
money not existing money. See Tex. Dep’t of Transp., 146 S.W.3d at 642.
       Had the legislature intended that gross income include money in possession regardless of
the source, the legislature could have specifically listed money in possession in the list of
inclusions under Section 8.055(a-1). It did not do so and, in another section, specifically defined
maintenance as periodic payments from a spouse’s future income. TEX. FAM. CODE ANN.
§ 8.001(1); City of Dallas, 463 S.W.3d at 55.        Further, Section 8.055(a-1)(2) specifically
excludes return of principal or capital as gross income. TEX. FAM. CODE ANN. § 8.055(a-1)(2).
This exclusion is consistent with a statutory interpretation that spousal maintenance is to be
based only on wages a paying spouse will make, or income that property awarded to the paying



                                                9
spouse may generate, after entry of the divorce decree. It is not consistent with an interpretation
that maintenance can be based on the continued possession by the paying spouse of the property
awarded in the decree. See Tex. Dep’t of Transp., 146 S.W.3d at 642.
        The money Randall was awarded in the divorce decree which included his remaining
personal injury settlement proceeds, could not by definition be “future” income. While a very
valuable and liquid asset, it is also a diminishing one. At the time of the final hearing, those
proceeds amounted to $300,444.13.              During the hearing on the motion for new trial, the
remaining proceeds had been reduced to $245,274. While Randall has funds available to pay the
maintenance ordered, the mere possession of money to satisfy the obligation alone cannot
support an award of maintenance. There must be evidence of future income from which the
maintenance is to be paid, which is absent in this case. 1 TEX. FAM. CODE ANN. § 8.001(1).
        Further, a spouse ordered to pay spousal maintenance can seek a reduction in the amount
of maintenance upon filing a motion in the court that originally rendered the order and upon the
proper showing of a material and substantial change in circumstances. See id. § 8.057. By
interpreting gross income to include money in possession awarded to Randall in this case,
Randall will have no effective means to seek a reduction in the amount of maintenance payments
until he no longer possesses any of the personal injury settlement proceeds awarded to him.
When reviewing Chapter 8 as a whole, the plain language of the statutory text reflects a
legislative intent that spousal maintenance be an award from future income of a spouse subject to
termination or modification depending on future events on a proper showing of material and
substantial change. Id. The inclusion of the personal injury settlement proceeds as gross income
upon which an award of spousal maintenance can be based improperly assigns a meaning to
Section 8.055(a) that would be inconsistent with Section 8.057 even if one provision, standing
alone, might be susceptible to such a construction. See In re Morris, 498 S.W.3d at 630.




        1
           We note that “gross income” includes interest income. See TEX. FAM. CODE ANN. § 8.055(a-1)(1)(B).
However, Randall cannot earn interest on the money awarded to him. Randall’s settlement proceeds were being
held in an account pursuant to the requirements of the Texas Equal Access to Justice Program. See TEX. STATE BAR
R. art. XI, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, app. A (West 2013). Interest earned through an
attorney’s Interest on Lawyer Trust Account (IOLTA) account is transferred to the Texas Equal Access to Justice
Foundation, a non-profit corporation, which is charged with administering these funds through grants to non-profit
organizations that have a primary purpose of delivering legal services to low income persons. Id. art. XI, § 4.
Randall’s attorney’s participation in the IOLTA program was mandatory. Id. art. XI, § 5. Therefore, Randall does
not receive the interest earned on the settlement proceeds held in the IOLTA account.


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         This case presents a unique set of facts. While unfortunately the destruction of marriages
from substance abuse is all too common, rarely will a situation arise where a spouse is injured
between incarcerations, files a lawsuit, and after becoming incarcerated again, receives a
substantial settlement which is largely intact at the time of the final divorce hearing. Though
Randall is the recipient of a significant sum of money from his lawsuit which was awarded to
him in the divorce, there is no evidence in the record of his future employability and wage
earning ability after his release at some unknown future date.
         Allowing an award for spousal maintenance based on Randall’s personal injury
settlement is inconsistent with the legislative intent that spousal maintenance be an award from
future income of a spouse, subject to conditions which provide for modification. See TEX. FAM.
CODE ANN. § 8.057. The evidence reflects that Randall will not earn income while incarcerated,
does not reflect when he may be released from prison, and is void of any evidence as to his
income earning potential after his release from prison. Because there is no evidence of Randall’s
future income to support the award, the trial court abused its discretion in awarding spousal
maintenance to Fredericka. See Dunn, 177 S.W.3d at 396. We sustain Randall’s first issue.


                                                  DISPOSITION
         Having overruled Randall’s second issue as to the marital property division and sustained
his first issue as to the award of spousal maintenance, we modify the final divorce decree to
delete the award of spousal maintenance and affirm the divorce decree as modified.

                                                                GREG NEELEY
                                                                  Justice


Opinion issued March 15, 2018.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J.




                                                   (PUBLISH)




                                                         11
                                 COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                         JUDGMENT

                                         MARCH 15, 2018


                                       NO. 12-17-00049-CV


                               RANDALL ONEAL MATHIS,
                                      Appellant
                                         V.
                           FREDERICKA ANTOINETTE MATHIS,
                                      Appellee


                               Appeal from the 115th District Court
                           of Upshur County, Texas (Tr.Ct.No. 372-15)

                       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
judgment of the court below. In accordance with this Court’s opinion of this date, the judgment
of the trial court is modified as follows:
                       We DELETE that portion of the trial court’s judgment awarding
Fredericka Antoinette Mathis spousal maintenance in the sum of $1,200 per month.
                       We DELETE that portion of the trial court’s judgment ordering any
employer of Randall Oneal Mathis to withhold from Randall Oneal Mathis’s disposable earnings
for spousal maintenance for Fredericka Antoinette Mathis.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
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, for which execution may issue, and
that this decision be certified to the trial court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
