in Re: John Jeffrey McCafferty

ACCEPTED 05-15-01345-CV 05-15-01345-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 11/4/2015 9:37:24 AM LISA MATZ CLERK No INTHE FILED IN 5th COURT OF APPEALS COURT OF APPEALS FOR THE DALLAS, TEXAS FIFTH DISTRICT OF TEXAS 11/4/2015 9:37:24 AM LISA MATZ Clerk INRE: JOHN JEFFREY MCCAFFERTY, RELATOR PETITION FOR WRIT OF MANDAMUS to the 254th Judicial District Court of Dallas County, Texas Cause No. 08-05932-R LAW OFFICES OF FRANK SHOR FRANK SHOR State Bar No.. 18294700 1620 E Belt Line Road Canollton, Texas 75006 (972) 242-8887 (972) 446-7976 FAX FiankShoiLawFiim@gmail.com Attorney for Relator i  IDENTITY OF PARTIES AND COUNSEL Relator: John Jeffrey McCafferty, certifies that the following is a complete list of the names and addresses of all parties and their counsel., Relator's Lead Counsel: Frank Shor State Bar No , 18294700 Law Offices of Frank Shor 1620 E Belt Line Rd, Carrollton, Texas 75006 FrankShor lawfirm@gmail.com Respondent: Hon, Susan Rankin Judge of the 254th Judicial District Court Dallas County, Texas George L, Allen Sr., Courts Building 600 Commerce Street Dallas, Texas 75202 Real Parties in Interest: John Jeffrey McCafferty Mary Micheline McCafferty Attorney for Mary Micheline McCafferty: Reagan K, Vernon State Bar No,. 24081192 Koons Fuller, P,C. 1717 McKinney Avenue Suite 1500 Dallas, Texas 75202 Reagan@koonsfuller.com il  RECORD REFERENCES Relator, John Jeffrey McCafferty, will refer to the Appendix by Exhibit and page number , as follows (Ex. [exhibit letter], P, [page number])., By way example, if Relator is citing to page 4 of Exhibit D, the citation will be Ex. D, P., 4. As for the Reporter's Record, Relator will refer to it as "(RR [page number], Ln„ [line number(s)])." iii  TABLE OF CONTENTS IDENTITY OF PARTIES and COUNSEL ii RECORD REFERENCES iii TABLE OF CONTENTS iv-v TABLE OF AUTHORITIES vi-vii STATEMENT OF THE CASE viii STATEMENT OF JURISDICTION ix ISSUE PRESENTED x INTRODUCTION 2 STATEMENT OF FACTS 3 SUMMARY OF ARGUMENT I, The Trial Court Erred in Appointing a Receiver, Because: A,. The Trial Court Lacked Authority to Enter ... the Order Appointing a Receiver (but abused its discr etion if it had the power to rule) 7 7 7 B . Petitioner Failed to Present the Requisite Evidence to Support the of a Receiver' II Ther e is No Adequate Remedy by Appeal PRAYER — .... Trial Court's Decision to Grant Petitioner's Request for an Appointment 10 11 12 CERTIFICATION 13 CERTIFICATE OF COMPLIANCE 13 iv CERTIFICATE OF SERVICE 13-14 APPENDIX 15 v (Tex.2000) . TABLE OF AUTHORITIES BlandIndependent School Distr ict v Blue, 34 S.,W,3d 547, 554 Cox v Johnson, 638 S„W,2d 867, 868 (Tex. 1982) (per curiam). .. Craddockv Sunshine Bus Lines, 134 Tex, 388, 133 S,W.,2d 124, 126 (Tex.Comm.App,— 1939, opinion adopted) Harris County v. Sykes, 136 S W 3d 6.35, 638 (Tex,2004) proceeding) ......... ...... .... Carl J Battaglia, MD, P A v Alexander , 177 S.W,3d 893, 907 (Tex, 2005) Claxton v (Upper) LakeFork Water Control, 220 S.W 3d 537, 541 (Tex, App,—Texaikana 2006, no pet) In re Brookshire Grocery Co , 250 S.W„3d 66, 68 (Tex, 2008) (orig, proceeding) .- Downer v Aquamarine Operators, Inc , 701 S ,W.2d 238, 241-42 (Tex,, 1985) ,10 Everett v Everett,421 S,W,3d 918, 921 (Tex, App,—El Paso 2014, no pet) Harrington v Schuble, 608 SW2d 253, 256 (Tex. Civ, App. 1980) In re Jacobs, 300 S ,W,3d 35, 40 (Tex, App —Houston [14th Dist ] 2009, orig. . .. ....... .... ..... In re McAllen Med Ctr , Inc , 275 S,W.3d 458, 464 (Tex 2008) (orig,, proceeding) .. In re Olshan Found Repair Co , 328 S .W,3d 883, 888 (Tex. 2010) In re Prudential Ins Co v Am ., 148 S„W, 3d 124, 135-36 & n,47 (Tex . 2004) vi .. 7 - -7 9 8 9 6 7 10 7 11 11 11 7 In re RFC., 282 S.W 3d 722, 728 (Tex.. App—Dallas 2009, no pet,) In re Sw Bell Tel Co , 35 S.W 3d 602, 605 (Tex, 2000) denied). .. . ..... .......... Tex Ass'n ofBus v.. Tex Air Control Bd, 852 S ,W,2d 440, 446 (Tex,.1993) Texas Indus, Traffic League v Railroad Comm'n, 633 SW,2d 821, 82,3 (Tex.1982) (per curiam) Tex. R. App,. R. 52.1 .. Tex,, Fam. Code Ann,, § 9.002 (Vernon 2006) Tex, Fam. Code Ann, § 9 006(a) (Vernon 2006) .. Walker v Packer,827 S,W.2d 833, 840 (Tex, 1992) Tex,. Fam., Code Ann, § 9..007(a) (Vernon 2006) vii ... .... ... 2 ... . In re WL W , 370 S..W.3d 799, 807 (Tex App,—Fort Worth 2012, mandamus .. 12 8 7 7 1 8 8 9 11 In re Weekley Homes, L P , 295 S .W,3d 309, 322 (Tex, 2009) (orig. proceeding) Mayhew v Town ofSunnyvale, 964 S,W.2d 922, 928 (Tex,,1998) ... .8 O'Carolan v Hopper, 71 S ,W.3d 529, 534 (Tex, App,—Austin 2002, no pet, hist) .. Smithsonv Cessna Aircraft Co , 665 S, W.2d439, 443 (Tex. 1984).. 11 9 10  STATEMENT OF THE CASE Nature of the Case: This mandamus proceeding challenges an order appointing a receiver to handle all portions of the sale of Relator, John Jeffrey McCafferty's, homestead (and Real Party in Interest's real estate) because the trial court lacked jurisdiction to enter such an order under the Texas Family Code.. Respondent: Honorable Susan Rankin Judge of the 254th Judicial District Court of Dallas County, Texas. Course of Proceedings and Respondent's Challenged Action: Respondent did not have the power to enter the October 15, 2015 Order on Motion to for Appointment of Receiver (her eafter the "Or der ") because the Order was based on a pr eviously entered order—the December 12, 2013 Interim Or der on Petition for Enforcement (hereafter the "Interim Order")., The Trial Court's enforcement of the Interim Or der violated Section 9.007 of the Texas Family Code (hereafter the "Statute"). In addition, Petitioner, Mary M. McCafferty (Relator's ex-wife), failed to present the evidence which was called for by the Interim Order for the Court to grant the requested relief of the appointment of a Receiver (assuming the Court had the jurisdiction to do so). Because the Interim Order amended, modified, altered, and/or changed the division of property, the trial court was without jurisdiction to enter an Order enfor cing same.. Further, the Interim Order required that Petitioner present evidence to Relator's counsel and to the trial court that Relator failed to pay the sums due under the Interim Order,, Petitioner failed to present any evidence that Relator failed to pay the sums due under the Interim Order, Hence, there is insufficient evidence to the support the Respondent's Order (assuming arguendo, that said Order is, or was, enforceable). viii  JURISDICTIONAL STATEMENT This Court has original jurisdiction to issue extraordinary relief pursuant to Rule 52. 1 of the Texas Rules of Appellate Pr ocedure, ix  ISSUES PRESENTED 1, Didthe trial court err when it enforced an Order which amends, modifies, or alters the division of property contained in a previously signed Divorce Decree? 2.. Didthe trial court err when it enforced an order, even though the Movant failed to prove the necessary elements as set forth in the order? x  No. In the Court of Appeals for the Fifth District of Texas In Re John Jeffrey McCafferty, Relator On Petition for Writ of Mandamus to the 254th Judicial District Court of Dallas County, Texas PETITION FOR WRIT OF MANDAMUS To the Honorable Court of Appeals for the Fifth District of Texas at Dallas: Pursuant to Rule 52 of the Texas Rules of Appellate Procedure, Relator seeks mandamus relief from the trial court's order appointing a receiver to sell the Relator's homestead, Tex, R. App P. 52,1, Relator would show that Respondent did not have the power to enter the complained of Order, but that even in the unlikely event that the Respondent did, that the Trial Court abused its discretion in granting the complained of Order (because Petitioner [Real Party in Interest, Mary Micheline McCafferty] failed to present the evidence required under the terms of said Order to obtain her requested relief), 1  INTRODUCTION On October 15, 2015, the trial court signed an Order Appointing a Receiver (to sell Relator 's homestead). The Order is attached hereto as Ex. A in the Appendix, which contains a true and correct copy of each of the original of Relator's exhibits and the Reporter's Record, This Order is based on an order —to wit, the Interim Order (Ex, B) which amended, modified, altered, and/or changed the division of property contained in the parties' Divorce Decree. Thus, the trial court was without jurisdiction to enter the October 15, 2015 Order, because an order that amends, modifies or alters a division of property in a divorce decree may not be enforced, F.C., §9 007. Further, the Interim Order (upon which the Order appointing the Receiver was based) contains the following: "If [Relator] fails to deposit or wire the money in the amounts or on the dates listed above, upon proof provided to his attorney and to the Court, a receiver will immediately be appointed to list the [Property] for sale " The Reporter 's Record shows that Petitioner failed to present any evidence that Relator failed to pay the sums due under the Interim Order. Hence, there is no evidence establishing that the terms of the Interim Or der were satisfied, As a result of the trial court's order, Relator's ability to sell his homestead is severely constrained, This may detrimentally impact the 2 amount that Relator will recover as his share from the proceeds of the sale of the property (and may ultimately result in a forfeiture).. Relief from this Court is therefore necessary., There is no adequate remedy by appeal in this case, as Relator is unable to file an interlocutory appeal challenging the trial court's order; This Court should grant the petition for writ of mandamus and order the trial court to vacate its order appointing a receiver to sale the Relator's homestead. STATEMENT OF FACTS On July 17, 2009, the trial court entered an Agreed Final Decree of Divorce (hereafter the "Decree"), which stated, in relevant part, as follows: 1. IT IS FURTHER ORDERED AND DECREED that the property and all improvements located thereon at lot 40, block 1/8175, Williamsburg at Preston An Addition to the City of Dallas, accor ding to the Plat ther eof r ecor ded in Volume 78090, Page 1397, map records of Dallas County, Texas, and more commonly known as 14327 Hughes Lane, Dallas, Texas 75254 (hereafter the "Property"), shall be sold under the following conditions: 2. The Property shall be sold for a price as determined by [Relator], [Petitioner] shall receive $509,000 as her share of the community pr operty . 4 The net sales proceeds (defined as the gross sales price less the cost of sale and full payment of any mortgage indebtedness or liens on the property) shall be distributed as follows: 3  a. $509,000 to [Petitioner] „ . , Notwithstanding the foregoing language, [Relator] shall be reimbursed from the $509,000 due [Petitioner] limited to the following amounts: 1,.Monies paid [Petitioner] by [Relator] after date of divorce as an advance on her $509,000.. The advance on the $509,000 shall be defined by the amount [Relator] pays [Petitioner] after divorce in the contemplated amount of $4,000 per month payable each 15th of the month, Ex, C, P, 16-17, On July 25, 2013, Petitioner filed a Petition for Enforcement of Property Division and Petition for Breach of Contract, Ex, D, P, 1„ In her petition, Petitioner sought enforcement of the Decr ee alleging, inter alia, that Relator had failed to comply with the Decree by failing to list the Property for sale and failing to the pay the $4,000 monthly advance, Id at P.. 2, On December 18, 2013, the Court signed an Interim Order (Ex„ B, P, 1„) The Interim Or der states, in relevant part, the following: 1.. [Petitioner's] bank account with Capital One Bank the following sums: $15,000 on November 12, 2013; $10,000 on December 15, 2013; and $10,000 on January 15, 2014 ... [Relator] will wire transfer or direct deposit into Until the [Property] is listed for sale, [Relator] will continue to pay [Petitioner] the sum of $10,000 on the 15th day of each month. 2, After the date the [Property] is listed for sale, [Relator] will wire transfer or direct deposit the sum of $6,000 per month on the 15th day of each month to [Petitioner]. 4. If [Relator] fails to deposit or wire the money in the amounts or on the dates listed above, upon proof provided to 4  appointed to list the [Property] Id at P. 1-2. ... his attorney and to the Court, a receiver will immediately be for sale, On September 9, 2015, Petitioner filed her Second Amended Petition for Enforcement of Property Division and Petition for Breach of Contract and for Enfor cement of Interim Or der on Petition for Enforcement , Ex. E, P, 1„ In this pleading, Petitioner sought to enforce the terms of the Inter im Order by having a r eceiver appointed to handle the sale of the Property. Id at P. 3-4. Relator objected to the appointment of a receiver based upon the Interim Order , because an order enforcing the Interim Order would violate Section 9.007 of the Texas Family Code. See Ex,. F (Relator's Response to (Anticipated) Application for Receiver) & Ex. G. (Plea to the Jurisdiction),, In his pleadings, Relator stated, in no uncertain terms, that the Interim Order was unenforceable because it amended, modified and/or altered the division of property contained in the Decree.. On October 15, 2015, the trial court heard the Application to Appoint a Receiver; At the hearing, Petitioner's counsel acknowledged that the Interim Order modified the Decree, but argued that it was done by agreement. RR. 5, Ln. 9-13. Petitioner argued, in essence, that the agreement of the parties to modify the Decree granted the tr ial court the jur isdiction to 5 enter the Interim Order, However, under Texas law, "a party cannot confer or waive jurisdiction by consent or agreement," Claxton v (Upper) Lake Fork Water Control, 220 S,W,3d 537, 541 (Tex,, App,—Texarkana 2006, no pet,,). Arguing in the alternative, Petitioner also took the position that the orders were not substantial modifications such that they would violate the Statute,, RR 5, Ln, 23-25; RR 11, Ln 21-22 , After a short recess, to consider same, Respondent granted Petitioner's request and entered the challenged Order appointing a receiver,, RR 13, Ln 22-25 - RR 14, Ln 1-6. The Order states, in relevant part, as follows: The Court, after hearing pleadings, evidence, and argument of counsel, is of the opinion that proper grounds exist for the immediate appointment of a receiver , IT IS THEREFORE ORDERED that Eve Sullivan and Shelley Tillery are appointed Receiver to take charge and possession of the [Property ,] IT IS FURTHER ORDERED that Eve Sullivan or Shelley Tillery are authorized to manage, control, and dispose of the property as they see fit in their sole discretion in accordance with the listing agreement, IT IS FURTHER ORDERED that the parties fully cooperate with [sic] Receivers, including, without limitation, signing a real estate listing agreement that lists the [Property] initially at $L399m[J Ex, A, P ,l, 6  ARGUMENT Mandamus relief is available where (1) a court abuses its discretion and (2) there is no "adequate r emedy by appeal. " In re Prudential Ins Co v.. Am.,, 148 S.W,3d 124, 135-36 & n.47 (Tex.. 2004) (citing Walker v Packer , 827 S.W,2d 833, 840 (Tex, 1992)). A trial court clearly abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. See In re Olshan Found Repair Co , 328 S.W 3d 883, 888 (Tex. 2010); see also Walker, 827 S.W,2d at 839. I The Trial Court Erred inAppointing a Receiver, Because: A. The Trial Court Lacked Authority to Enter the Order Appointing a Receiver (but abused its discretion if it had the power to rule). A trial court commits fundamental error when it enters an order that is beyond the trial court's jurisdiction. See Cox v Johnson, 638 S ,W,2d 867, 868 (Tex. 1982) (per curiam); Texas Indus Traffic League v Railroad Comm'n, 63.3 S,W.2d 821, 82.3 (Tex 1982) (per curiam), A plea to the jurisdiction is a dilatory plea by which a party challenges the court's authority to determine the subject matter of the action. Harris County v Sykes, 136 S.W„3d 635, 638 (Tex.2004); Bland Independent School District v. Blue, 34 S W..3d 547, 554 (Tex,, 2000), The relief seeking party bears the 7 burden of alleging facts that affirmatively show the trial court has subject matter jurisdiction. Tex. Ass'n of Bus v Tex Air Control Bd, 852 S.,W,.2d 440, 446 (Tex 1993)., Because the question of subject matter jur isdiction is a legal question, the trial court's ruling on a plea to the jurisdiction is reviewed under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964 S.,W.,2d 922, 928 (Tex. 1998), A court that renders the decree of divorce r etains the power to enforce the property division, See Tex., Fam,. Code Ann. § 9,002 (Vernon 2006). Pursuant to the Family Code, a court may render further orders to enforce the division of property made in the decree of divorce to assist in the implementation of or to clarify the prior order . See id § 9. 006(a) (emphasis added),, However, a court may not amend, modify, alter, or change the division of property made or approved in the decree of divorce. See id § 9.007(a), Her e, the trial court relied upon the Interim Order, when it entered the Order ,1 Under the Decree, Relator was only required to pay Petitioner $4,000 a month, Under the Inter im Order , Relator was required to make one 1 The trial court's reliance on the Interim Order is also apparent fr om the lack of evidence to substantiate the appointment of a receiver ,as Texas law requires . See Harr ington v.. Schuble, 608 S.,W.,2d 25.3, 256 (Tex., Civ.. App. 1980)., 8 payment for $15,000 and a payment of $10,000, or pay $6,000 a month, depending on whether the property was listed for sale. This 50% to 250% increase in the amount due monthly to satisfy Relator's debt obligations "amends, alters or changes the actual, substantive property division made or approved in the divorce decree." Tex, Fam, Code Ann § 9..007, Thus, "the order is beyond the trial court's power and is unenforceable." See Everett v Everett, 421 S.,W,3d 918, 921 (Tex, App.,—El Paso 2014, no pet); see also In re R F G , 282 S W.3d 722, 728 (Tex., App,—Dallas 2009, no pet ) (holding that a clarifying order amending a debt obligation violates the statute) The increased monthly payments mean that the Petitioner will receive more in value than the $509,000 debt obligation set forth in the Decree based on the time value of money,, See O'Carolan v Hopper, 71 S,W,3d 529, 534 (Tex. App.—Austin 2002, no pet. hist,,) ("Furthermore, the time value of money lessens the worth of support payable over twenty-four months as compared to a lump sum realized from a sale of the property ,"); see also Carl J Battaglia, MD, PA v Alexander , 177 S,W.3d 893, 907 (Tex, 2005), 9  B. Petitioner Failed to Present the Necessary Evidence to Support the Trial Court's Decision to Grant the Petitioner's Request for an Appointment of a Receiver. Without waiving the argument that the Court lacked author ity to enter the order to appoint a Receiver ,Relator argues that even if the Interim Or der is enforceable, Petitioner failed to prove the predicate facts for the Respondent to appoint a receiver , The Interim Order provides that as the factual basis for the Application to Appoint a Receiver (pursuant to the Interim Order) Petitioner must provide proof to Relator's counsel and to the Court that Relator failed to deposit or wire the money (before a receiver may be appointed),. Ex. C, P . 2, At the hearing on the request to appoint the Receiver, the only evidence that was before the trial court was regarding attorney's fees.. RR 16, Ln. 23-25, The test for abuse of discr etion is not whether , in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v Aquamarine Operators, Inc , 701 S,W„2d 238, 241-42 (Tex, 1985), Rather, it is a question of whether the court acted without reference to any guiding rules and principles, Craddock v Sunshine Bus Lines, 134 Tex,, 388, 133 S.W.2d 124, 126 (Tex.Comm.App — 1939, opinion adopted), Another way of stating the test is whether the act was arbitrary or unreasonable, Smithson v Cessna Aircraft Co , 665 S ,W.2d 439, 10 443 (Tex . 1984), The lack of proof shows an abuse of discretion in the trial ' court's order, because the trial court actions could not have been guided by the evidence here, and thus were arbitrary and unreasonable II.There IsNo Adequate Remedy By Appeal In determining whether appeal is an adequate remedy, courts consider whether the benefits of mandamus relief outweigh the detriments,, In re Jacobs, 300 S,W,3d 35, 40 (Tex, App —Houston [14th Dist ] 2009, orig, proceeding), Appeal is not an adequate remedy when the appellate court would not be able to cure the trial court's error In re Weekley Homes, LP , 295 S.W,3d 309, 322 (Tex, 2009) (orig, proceeding). As this balance depends heavily on circumstances, the analysis is guided by principles rather than simple rules that treat cases as categories , In re McAllen Med Ctr , Inc., 275 S,,W,3d 458, 464 (Tex,2008) (orig, proceeding). Typically, mandamus relief is appropriate when a trial court issues an order after its plenary power has expired,, In re Brookshire Grocery Co., 250 S.W,3d 66, 68 (Tex, 2008) (orig,, proceeding); see In re Sw. Bell Tel Co , ,35 S.W„3d 602, 605 (Tex. 2000) (reasoning that mandamus is proper if a trial court issues an order beyond its jurisdiction) , The Fort Worth Court of Appeals recently held that mandamus was proper when a court entered an order that violated Section 9,007 of the 11 Texas Family Code See In re WL W , 370 S.W,3d 799, 807 (Tex. App — Foit Worth 2012, mandamus denied). A trial court lacks subject-matter jurisdiction to enter an order that divides community property in a manner different than what is provided for in a final decree, Id Given that the trial court had no jurisdiction to enforce the Interim Order, there is no adequate remedy by appeal for Relator, Moreover, Relator may lose any interest he has in the Property by the time a final, appealable judgment is entered in this case. Respondent has ordered that the Property be sold at a fixed price, which may be well below its market value, and Relator stands to lose any money that he might have otherwise been entitled to PRAYER Respondent did not have the authority to enter the complained of Order. However, in the unlikely event that the trial court did, the Court abused its' discretion because Petitioner failed to present the evidence required to obtain her requested relief For the foregoing reasons, this Court should issue a writ commanding Respondent to vacate the Or der , 12  Respectfully submitted, LAW OFFICES OF FRANK SHOR /s/ Frank Shor _ FRANK SHOR State Bar No,. 18294700 1620 E. Belt Line Road Canollton, Texas 75006 (972) 242-8887 (972) 446-7976 FAX FiankShorLawFiim@gmail com Attorney for Relator CERTIFICATION Icertify that Ihave reviewed all of the factual allegations in the foregoing petition and conclude that every factual statement in the petition is supported by competent evidence, which is included herein as part of the appendix and the reporter's record, /s/ Frank Shor_ FRANK SHOR CERTIFICATE OF COMPLIANCE Icertify that the foregoing document contains 2622 words total, and was prepared in Microsoft WORD using 14-point typeface for body text and 12-point for footnotes , In making this certificate of compliance, Iam r elying on the WORD count pr ovided by the softwar e used to pr epar e the document,, /s/ Frank Shor _ FRANK SHOR CERTIFICATE OF SERVICE Icertify that a true and correct copy of the for egoing Petition for Wr it of Mandamus was served via first class mail on Respondent and via 13 electronic service on the Real Party in Interest on the 3r d day of November , 2015, upon: Respondent: Honorable Susan Rankin Judge of 254th Judicial District Court of Dallas County, Texas 600 Commerce Street Dallas, Texas 75202 (214) 653-6741 Real Party in Interest: Mary M. McCafferty Attorney for Mary Micheline McCafferty: Reagan K. Vernon State Bar No., 24081192 Koons Fuller, P.C 1717 McKinney Avenue,Suite 1500 Dallas, Texas 75202 (214) 871-2727 Reagan@koonsfuller.com Is/Frank Shor FRANK SHOR 14  APPENDIX Exhibit A: Order on Motion for Appointment of Receiver Exhibit B: Interim Order on Petition for Enforcement Exhibit C: Agr eed Final Decr ee of Divorce Exhibit D: Petition for Enfor cement of Pr operty Division and Petition for Breach of Contract Exhibit E: Second Amended Petition for Enforcement of Property Division and Petition for Br each of Contr act and for Enforcement of Interim Order on Petition for Enforcement Exhibit F: Relator 's Response to (Anticipated) Application for Receiver Exhibit G: Plea to the Jurisdiction Exhibit H: Reporter's Record 15 EXHIBIT A  CAUSE NO. 08-05932 MARY M. MCCAFFERTY, INTHE DISTRICT COURT ALANA MCCAFFERTY, AND AMANDA MCCAFFERTY V. 254th JUDICIAL DISTRICT JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS ORDER ON MOTION FOR APPOINTMENT OF RECEIVER On the date indicated below, the Court considered the Motion fox Appointment of Receiver of Mary M,, McCafferty for the immediate appointment of 'a receiver to take charge and possession of property located at 14327 Hughes Lane, Dallas, Texas 75254.. The Court, after hearing pleadings, evidence, and ar gument of counsel, is of the opinion that proper gr ounds exist for the immediate appointment of a receiver . The Court finds that Eve Sullivangad Shelley T illery with Allie Beth Allman are qualified to serve as Receivers and are registered voters in Texas , IT IS THEREFORE ORDERED that Eve Sullivan and Shelley Tillery are appointed Receiver to take char ge and possession of the pr operty and all impr ovements locatedthereon at lot 40, block 1/8 175, Williamsburg at Preston, an Addition to the City of Dallas according to the plat thereof, recorded in Volume 78090, Page 1397, Map records of Dallas County, Texas, and more commonly known as 14327 Hughes Lane, Dallas, Texas 75254. The necessity of a bond by Receiver is waived. ÿ ÿ . rs ij * jSlo t / (ZUfaWv JfM w ft*- IT IS FURTHER, ORDERED that Er4 Sullivan fta Shelley Tillery are authorized to manage, control, and dispose of the property as they see fit intheir sole discretionÿ; ÿcc PROVIDE 60-DAY NOTICE, THEPARTY IS ORDEREDTO GIVENOTICE OF THE CHANGE ONOR BEFORE THE FIFTHDAYAFTER IHEDATE IHAT THE PARTY KNOWS OF THE CHANGE. IHEDUTYTOFURNISHIHIS INFORMATION IOEACHOTHERPARTY,THECOURT, AND 1HESTATE CASEREGISTRY CONTINUES AS LONGAS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OP OR ACCESS TO A CHILD FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER.PARTY, THE COURT,AND THE STATECASEREGISIRYWTIH THE CHANGEINTHE REQUIRED INFORMATION MAY RESULT IN FURTHER L2TTGAIION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT.. A FINDING OF CONTEMPT MAY BE PUNISHEDBY CONFINEMENI INJAIL FORUP TO SIX MONTHS,A FINE OP UPTO $500 FOR EACHVIOLATION,AND AMONEY JUDGMENT FORPAYMENI OF ATTORNEY'S FEESAND COURT COSTS. Notice shall be given to the other paity by deliveiing a copy of the notice to the party by registered or certified mail, returnreceipt requested, Notice shallbe given to the Court by delivering a copy of thenotice either inpersonto the cler k of this Court or by r egistered or certified mail addressed to the clerk.Notice shallbe given to tbe state case registrybymailing a copy of the notice to State Case Registry, Central File Maintenance, P..O. Box 12048, Austin, Texas 78711-2048.. \ WARNINGS TO PARTIES:FAILURETO OBEY A COURT ORDER FOR CHILD SUPPORT J ORFOR POSSESSIONOF OR ACCESS TO A CHILDMAY RESULT INFURTHERLITIGATION TO ENFORCEIHEORDER, INCLUDINGCONTEMPTOF COURT. A FINDINGOF CONTEMPT MAY BEPUNISHEDBY CONFINEMENT INJAIL FORUP 10 SDC MONTHS,A FINEOF UP TO £500 FOREACHVIOLATION, ANDAMONEYJUDGMENIFORPAYMENTOF ATTORNEY'S FEES AND COURT COSTS,, FAILURE OF A PARTY IOMAKEACHILDSUPPORIPAYMENTTO THE PLACEAND INTHE MANNER REQUIRED BY A COURT ORDER MAY RESULT INTHE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT: FAILUREOF APARTYTOPAYCHILD SUPPORTDOESNOT TUSTIFYDENYINGTHAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD, REFUSAL BY A PARTY TOALLOW POSSESSIONOFOR ACCESS IOA CHILD DOESNOTJUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORI 10 THAT PARTY Division ofMaritalEstate Tbe Court finds that tbe following is a just and right division of tbe parties' marital estate, having due r egard for the rights of each party FINAL DECREE OF DIVORCE - Page 15  / MaritalResidence IT IS FURTHER ORDERED AND DEGREED that the property and all improvements located thereon at lot 40 block 1/8175, Williamsburg At Preston An Addition to the City of Dallas According to the Plat thereof recorded in Volume 78090 Page 1397, Map Records of Dallas County, Texas, and more commonLy known as 14327 Hughes lane Dallas, Texas 75254, hereinafter "Property," shall be sold under the following terms and conditions: 1. The JOHN JEFFREY McCAFFERTY shall list the pr operty with a duly licensed r eal estate broker having sales experience in the area wher e the property is located, 2., The property shall be sold for a price as determined by JOHN JEFFREY McCAFFERTY,, MARY MICHELINE McCAFFERTY shall receive $509,000 as her share of the community property To ensure compliance of the monies due MARY MICHELINE McCAFFERTY, title to the Properly shall not transfer until such time as MARY MICHELINE McCAFFERTY has received her community property due or contemporaneous with a closing of the Property,, XT IS ORDERED MARY MICHELINE McCAFFERIY shall remove her name flora the title to the Property upon receipt of her community property due., IT IS ORDERED MARY MICHELINE McCAFFERTY shall sign a Special Warranty Deed removing her name flora title to the Property contempor aneous with the receipt of her share of the community property described herein. ÿ 3. JOHN JEFFREY McCAFFERTY shall continue to make all payments of principal, / interest, taxes, and insurance on the property during the pendency of the sale, and JOHN JEFFREY McCAFFERTY shall have the exclusive right to enjoy the use and possession of the premises until closing, All maintenance and minor repairs necessary to keep the property in its present condition shall be paid by JOHN JEFFREY McCAFFERTY , 4. The net sales proceeds (defined as the gross sales price less cost of sale and full payment of any mortgage indebtedness or liens on the property) shall be distributed as follows: a,. $509,000 to MARY MICHELINE McCAFFERTY. (The parties agree the $509,000 is compromised of Wife's share of the community property of $434,000 from the equity of the marital residence, $45,000 to help her pay her credit cards in her name, $15,000 towards ALANA NICHOLE McCAFFERTY'S automobile and $15,000towardsMARYMICHELINEMcCAFFERTY automobile).. Notwithstanding the forgoing language, JOHN JEFFREY McCAFFERTY shall be r eimbursed from the $509,000 due MARYMICHELINEMcCAFFERIY limitedto the following amounts: 1 Monies paid Wife by Husband after1 date of divorce as an advance on her $509,000,. The advance on the $509,000 shall be defined by the amount Husband pays Wife after divorce in FINAL DECREE OF DIVORCE - Page 16  ) the contemplated amount of $4000 per' month payable each 15th of the month, The parties hereby agree the intent of the parties is Wife havemonies untilshe receives her share of the community property from JOHN JEFFREY McCAFFERTY; and 2. Health insurance payments paid by Husband for Wife after divorce, and, 3. Only in the event ALANA McCAFFERTY elects to keep the blackVolvo, then $25,000 shall bededucted from the $509,000,, 4 No other deductions from the $509,000 shall be allowed; b. Any balance of the net proceeds from the sale of the Pr operty shall be paid to JOHN JEFFREY McCAFFERTY IT IS ORDERED JOHN JEFFREY McCAFFERTY may exercise his option to buy the Property , In the event JOHN JEFFREYMcCAFFERTY exerciseshisright to buy the Property,MARYMICHELINE McCAFFERTY nevertheless shall receive her share of the community property as identified inparagraph 4 (a) of the par agraph titled "Marital Residence" but subject to said deductions identified therein IT IS ORDERED MARY MICHELINE McCAFFERTY shall cooperate in the refinancing or purchase of the marital r esidence by JOHN JEFFREY McCAFFERTY in the event he chooses to exercise the option to buy c. It is the agreement of the parties that JOHN JEFFREY McCAFFERTY shall pay MARY MICHELINE McCAFFERTY four thousand dollars ($4,000,00) per month untilthe Pr operty is sold oi she r eceives her1share of the community property identified herein and such $4,000,00 per month shall be an offset against the $509,000 due MARY MICHELINE McCAFFERTY,, Property ofHusband IT IS ORDERED AND DECREED that the husband, JOHN JEFFREY McCAFFERTY, is awarded the following as his sole and separate property, and the wife is divested of all light, title, interest, and claim in and to that property: H- l. All stocks and ownership of Abacus Crane and Hoist, a division of Abacus Equipment Incorporated, and Abacus Equipment Incorporated which shall delude but not limited to all stocks, furniture, fixtures, machinery, equipment, inventory, cash, receivables, accounts, goods, and supplies; real property, all personal property used in connection with the operation of the business; and all rights and privileges, past, present, or future, arising out of or in connection with the operation of the business and shall include the real estate commonly known as 1805 John FINAL DECREE OF DIVORCE Page 17 )  ) Connaily Cairollton Texas 75006 more particularly described as set forth in Exhibit A, attached hereto and incorporated by reference. H-2 All householdfurniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment inthe possession of the husband or subj ect to his sole control including but not limited to the following: Laundry room: Kenmore washer and dryer; Dining Room: 3 Pictures; Garage: contents and tools; Kitchen and Pantry: Marble Tables, 8 leather chairs, bar stools, brass table, painting, T V; Den: Sofa, 2 chairs, end tables, mirror, brass lamps, bar glasses, liquor, stereo, Sony TV and Surround sound system; Game Room: Brunswick Pool I able; Master Bedroom: King bed, dresser, desk, 4 chairs, 2 end tables, IV, coffee table, 2 night stands, 5 lamps, 3 paintings; Exercise Room: 4 exercise machines; Upstairs 3 Bedrooms: 2 queen beds, lamps, 4 chairs; Other :Dell Laptop computer, entry table with mirror, plants, vases, minor; Living Room: square carpet, two couches, one table; Yard: 2 tables, chairs, bar stools Office: desk, drafting table, copying machine, fax, credenza, 3 chairs, computer with engineering program, miscellaneous office items.. H-3 , All clothing,jewelry, and other personal effects in the possession of the husband or subject to his sole control H 4.. All sums of cash in the possession of the husband or subject to his sole control, including funds on deposit, together with accruedbut unpaid interest, inbanks, savings institutions, or other financial institutions, which accounts stand in the husband's sole name or from which the husbandhas the sole right to withdraw funds or which are subject to the husband's sole control H-5. All sums, whether matured or' unmatured, accrued or unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other rights r elated to any profit- sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of the husband's past, present, or future employment H-6 . All individual retirement accounts, simplified employee pensions, and annuities in the husband's name, unless otherwise stated herein to the contrary including but not limited to the following: Compass Bank IRA 863585 Compass Bank IRA 1000507128 FINAL DECREE OF DIVORCE - Page 18 ] Compass Bank IRA 10028858847 Compass Bank IRA 2000002673 Compass Bank IRA 2000020193 Compass Bank IRA 0000857242 InwoodBank IRA S6595 H-7 . All inter ests and ownership in Conseco Annuity Acct # 0N266767; H-8., All policies of life insurance (including cashvalues) insuring the husband's life unless expr essly stated herein to the contrary which shall includebut not be limited to the following: Berkshire Life/ Guardian L0874706 Prudential Life 93 138 540 Prudential Life 38 853 834 Prudential Life 61 082 147 Prudential Life 38 995 500 H-9 All brokerage accounts, stocks, bonds, mutual funds, and securities r egistered inthe husband's name, together with all dividends, splits, and other rights and privileges in connection with them, including but not limited to: Abacus Crane and Hoist, a division of Abacus Equipment Incorporated, and Abacus Equipment Incorporated, H-10 The 2000 FordF350Truck,VIN# 1GCGC34RGYR153859, inPetitioner'spossession, together with all prepaid insurance, keys, and title documents H-ll. The 2002 GMC Denali, VIN# 1GKFK66U325278636, inRespondent's possession, together with all pr epaid insurance, keys, and title documents., Property of Wife IT IS ORDERED AND DECREED that the wife, MARY MICHELINE McCAFFERTY, is awarded the following as her sole and separate property, and the husbandis divested of ah right, title, interest, and claim in and to that property: W- 1. $509,000 due as her share of the communityProperty underthe terms more particularly described inthe paragraph aboveentitled "Marital Residence" andsubject to the deductions described therein, W-2 All householdfurniture, furnishings, fixtures, goods, art objects, collectibles, appliances, and equipment inthe possession of the wife or subject to her sole control IT IS ORDERED MARY MICHELINEMcCAFFERTY shall be entitled to enter' 14327 Hughes Lane, Dallas, Texas to retrieve any other personal property remaining at the Hughes LaneDallas r esidence not all ready r emoved by her The parties shall agree on a time to remove the remainder of her personal property . FINAL DECREE OF DIVORCE - Page 19  W-3 . All clothing,jewelry, and othei personal effects inthe possession of the wife or subject to her sole control W- 4 All sums of cash in the possession of the wife or subject to her sole control, including funds on deposit, together with accrued but unpaid interest, in banks, savings institutions, or other financial institutions, which accounts stand in the wife's sole name or from which the wife has the sole right to withdraw funds or which are subject to the wife's sole control, includingbut not limited to: ankof erica Acct#W 8.360 caACcrrÿSKhÿSSÿ 0 W-5 All sums, whether matured or unmatured, accrued or' unaccrued, vested or otherwise, together with all increases thereof, the proceeds therefrom, and any other' rights related to any profit- sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings plan, accrued unpaid bonuses, disability plan, or other benefits existing by reason of the wife's past, present, or future employment unless otherwise statedherein to the contraiy, W-6 All individual retirement accounts, simplified employee pensions, annuities, and variable annuity life insurance benefits in the wife's name unless otherwise stated herein to the contrary W-7 All insurance,pensions,retirement benefits, and other benefits arising out of the wife's membership in any union unless otherwise statedherein to the contrary.. W-8 All policies of life insurance (including cash values) insuring the wife's life. Liabilities ITIS ORDERED AND DECREED that the husband, JOHN.JEFFREY McCAFFERTY, shall pay, as a part of the division of the estate of the parties, and shall indemnify andholdthe wife and her property harmless from any failure to so discharge, these items: H-l The balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by JOHN JEFFREY McCAFFERTY, in the original principal sum of $7 75,000 dated August 25,2003, payable to WAMU and/or assignee, and secur ed by deed of trust on the real properfy awarded in this decree to the husband, whichis recorded inDeed of Trust Records of Dallas County, Texas on the pr operty commonly known as 14327 Hughes Lane, Dallas,Texas 75254. H-2. The balance due, includingprincipal, interest, andallother charges, on the promissory note payable to lender and given as part of the purchase price of and secured by a lien on the motor vehicles awarded to the Husband, if any. FINAL DECREE OF DIVORCE - Page 20  H-3 . Any and all debts, charges, liabilities, and other obligations incurred solely by the husband from and after March 26, 2008, including but not limited to their respective credit cards and attorney fees, unless express provision is made in this decree to the contrary. H-4 The following specific debts, charges, liabilities, and obligations, unless express provision is made herein to the contrary: American Express xxx 92005 with an approximate balance of $38,439 as of 9/10/2008; Capital One xxx 0502 with an approximate balance of $4,899 Citibank Visa xxx 0083 with an approximate balance of $22,567 as of 4/10/09; Bank of America xxx 549 1 with an approximate balance of $9,529 as of 4/10/09; Chase Visa xxx 1887 with an approximate balance of $15,439 as of 4/10/09; Chase Visa xxx 75 79 with an approximate balance of $9626 as of 4/10/09; Bank of America (MC)xxx 7252 with an approximate balance of $32,825 as of 4/10/09; First Equity Visa xxx 8448 with an approximate balance of $4183 as of 4/10/09; Chase Visa xxx 5459 with an approximate balance of $19,694 as of 4/10/09 GMCard xxx 0169 with an approximate balance of $20,20515 as of 4/10/09; Capital One Visa xxx 8912 with an approximate balance of $2,116 Advanta(MC) xxx 8014 with an approximate balance of $18607 as of 4/10/09; Chase Visa xxx 5159 with an approximate balance of $24,035 as of 4/10/09 Chase Visa xxx 0601 with an approximate balance of $16,895 as of 4/10/09 * The appr oximate total of the above cr edit card liability is $248,662.00. H-5 All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to become due including electricity, gas, water, phone, cable, sewage on the real and personal property awarded to the husband in this decree unless express provision ismade in this decree to the contrary ,. H-6. Any and all debts held in the individualname of the Husband unless expressly stated otherwise herein H-7 Any and all debts or liabilities associated with Abacus Crane and Hoist, a division of Abacus Equipment Incorporated, and Abacus Equipment Incorporated and any other corporation in Husband's name. H-8 Any and all debts due "The IIMcCafferty Trust" and debts due "B .J. McCafferty Trust" The Court finds JOHN JEFFREY McCAFFERTY has represented to MARY MICHELINE McCAFFERTY that the Trusts identified herein shall not demand payment of any debts until MARY MICHELINE McCAFFERTY has been paid in fhll her share of the community property due under this decree.. H-9 Any attorneys' fees incurred by JOHN JEFFREY McCAFFERTY; FINAL DECREE OF DIVORCE - Page 21 5 1 1 .1 ) ) H-10 Any balance due Shelton School H-ll Reimbursement of moving expense incurred by MARY MICHELINE McCAFFERTY on January 20, 2009 JOHN JEFFREY McCAFFERTY shall pay MARY MICHELINE McCAFBERIY within thirty days (30) of request by MARY MICHELINE McCAFFERrY.. H-l2 Fifty (50 %} per cent of medical,dental, optical, and counseling for the childrensince August 10, 2008 to the present.. Any payments under this paragraph by JOHN JEFFREY McCAFFERTY to MARY MICHELINEMcCAFFERTY shall be an offset against any child support due or paid during this period ITIS ORDERED AND DECREED that the wife, MARY MICHELINEMcCAFFERTY, shall pay, as a part of the division of the estate of the parties, andshall indemnify and holdthe husbandand his property harmless fiom any failure to so discharge, these items: W- 1, The balance due, includingprincipal, interest, and all other charges, on any credit car ds inMARYMICHELINEMcCAFFERXY name or1any other cr edit cards wherein MARYMICHELINE McCAFFERTY has incurred credit card charges whether as principal party on a credit card or as secondary party to a credit card and including but not limited to the following: a, MasterCard Acct 5424 1806 3044 7602 \ b.. Visa Acct xxxx xxx xxxx 1:375 J c Visa Acct xxxx xxx xxxx. 0086 W-2 . Any and all debts, char ges, liabilities, and other obligations incurred solely the wife fiom and after March 26, 2008, including credit cards and attorney fees, unless express provision is made inthis decree to die contrary, W-3.. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to become due including electricity, gas, water, phone, cable, sewage on the real and personal property awarded to the wife in this decree unless express provision is made in this decree to the contrary,. W-4. Any and all debts held in the individual name of the wife unless expressly stated otherwise herein W-5 Any attorneys' fees incurred by MARY MICHELINE McCAFFERTY.. FederalIncome Taxes ITIS ORDERED AND DECREED for the calendar year 2.008, the parties shall file ajoint tax FINAL DECREE OF DIVORCE - Page 22 )  1 ) return. Any deficiencies for the tax year 2008 shall be paid by TOHN JEFFREY McCAFFERTY and any refunds shall be the separate property of ' JOHN .JEFFREY McCAFFERTY.. IT IS ORDERED AND DECREED MARY MICHELINE McCAFFERTY shall be solely responsible and hold JOHN JEFFREY McCAFFERTY harmless for any federal income taxes, penalties, andinterest on any incomeearned attributable to MARY MICHELINE McCAFFERTY on or before December 3 1, 2008 Injunctive Relief The permanent mutual injunction granted below shall be effective immediately and shall be binding on JOHN JEFFREY McCAFFERTY and MARY MICHELINE McCAFFERTY on their agents, servants, employees, and attorneys; and on thosepersons inactive concert orparticipation with them who receive actual notice of this order by personal service or otherwise,. IT IS ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY and MARY MICHELINE McCAFFERTY are permanently enjoined from: Maligningthe other parent inthe auditorypresence of the child, nor permit any other individual or family member from maligning the other par ent inthe pr esence of the child Petitioner and Respondent waive issuance and service of the writ of injunction,by stipulation or as evidencedby the signatures below.. IIIS ORDERED that Petitioner and Respondent shall be deemed to be duly served with the writ of injunction J Tax Exemptions IT IS FURTHER ORDERED AND DECREED that JOHN JEFFREY McCAFFERTY shall have the right, in accordance with section 152(e) (2) of the Internal Revenue Code of 1954, as amended, to claimthe dependency exemptions for1the child, ALANA NICOLEMcCAFFERTY, for the purposes of federal income taxes for 2009 and all subsequent years.. IT IS FURTHER ORDERED AND DECREED that MARY MICHELINEMcCAFFERTY and TOHN .JEFFREY McCAFFERTY shall sign any tax forms necessary to claimthe child as JOHN .JEFFREY McCAFFERTY's respective tax dependant including but not limited to tax form 8332. Court Costs ITIS ORDERED AND DECREED that costs of court are to be bomeby the party who incurred them Discovery Retention Requirement ITISORDERED AND DECREEDthat theparties andtheir' respective attorneys are discharged FINAL DECREE OF DIVORCE - Page 23 )  from the requirement of keeping and storing the documents produced in this case in accordance with rule 191 4(d) of the Texas Rules of Civil Procedure. Decree Acknowledgment Petitioner, JOHN JEFFREY McCAFFERTY, and Respondent, MARY MICHELTNE McCAFFERTY, each acknowledge that before signing this FinalDecree of Divorce they haveread this Final Decr ee of Divorce fully and completely, have had the opportunity to ask any questions regarding the same, and fully understand that the contents of this FinalDecree of Divorce constitute a full and complete resolution of this case Petitioner and Respondent acknowledge that they have voluntarily affixed their signatur es to this Final Decree of Divorce, believing this agr eement to be ajust and right division of the marital debt and assets, and state that they have not signed by virtue of any coercion, any duress, or any agreement other than those specifically set forth in this Final Decr ee of Divorce , Indemnification Each party represents and warrants that he or she has not incurred any outstanding debt, obligation, or other liability on which the other party is or may be liable, other than those described in this decree. Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or omission of the other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, or omission of the other party against any such claim or demand, whether or* not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission of the other party and hold him or her harmless from all damages r esulting from the claim or demand Damages, as used inthis provision, includes any r easonable loss, cost, expense, penalty, and other damage, including without limitation attorney's fees and other costs and expenses reasonably and necessarily incurred in enforcing this indemnity, IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on demand, for any payment made by the indemnified party at any time after the entry of the divorce decree to satisfy a judgment of any court of competent jurisdiction or inaccordance with a bona fide compromise or settlement of claims, demands, or actions for any damages to which this indemnity relates, The parties agree and IT IS ORDERED that each party will give the other party prompt written notice of any litigation thr eatened or instituted against either party that might constitute the basis of a claim for indemnity under this decree No Longer Attorney ofRecord FINAL DECREE OF DIVORCE - Page 24 V  "N* ) IIIS ORDERED Attorney for Petitioner is hereby released as attorney of record after the Decree of Divorce is signed by the Court Clarifying Orders Without affecting the finality of this Final Decree of Divorce, this Court expressly reserves the right to make orders necessary to clarify and enforce this decree, ReliefNot Granted IIIS ORDERED AND DECREED that all relief requested in this case and not expressly gr anted is denied Date ofJudgment SIGNED on _ _£Z __ ,2009,, A Associate Judge iam.lyI.SsU-' Courto JUDGE ) FINAL DECREE OF DIVORCE - Page 25 EXHIBIT D  ( f > ' NO 08 05932 R MARY M. MCCAFFERTY, IN THE DISTRICT COURT ALANA MCCAFFERTY and AMANDA MCCAFFERTY V. 254TH JUDICIAL DISTRICT JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS PETITION FOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR BREACH OF CONTRACT Discoveiy in this case is intended to be conducted undei level 2 of rule 190 of the Texas Rules of Civil Procedure 2 This suit is brought by Mary M McCafferty, Alana Nicole McCafferty, and Amanda McCafferty, Petitioners Respondent, John Jeffrey McCafferty, should be served with process at 14327 Hughes Lane, Dallas, Texas, or at whatever location he may be found. 3 On July 17, 2009 this Court tendered an "Agreed Final Decree of Divorce" a copy of which is attached hereto as Exhibit "A " The Decree provides in relevant part for the future action as follows: "IT IS FURTHER ORDERED AND DECREED that the property and all improvements located thereon at . ,14327 Flughes Lane, Dallas, Texas 75254, hereinafter "Property," shall be sold under the following terms and conditions: 1 The [sic] JOHN JEFFREY McCAFFERTY shall list the property with a duly licensed real estate broker having sales experience in the area where the property is located " Petitioner was the Respondent and Respondent was the Petitioner in the prior proceedings 4. Respondent has failed to comply with the decree described above as follows: V'Fag&T  C- JOHN JEFFREY MCCAFFERTY to date has not listed the piopeity at 14327 Hughes Lane, Dallas, Texas for sale 5. Petitioner Mary M McCafferty prays that the Court order Respondent to comply with the terms of the divorce decree by a date certain or order that a receiver be appointed to sell the proper./ in compliance with the terms of the decree.. 6. Additionally, under the terms of the Decree, it was the agreement of the parties that "JOHN JEFFREY MCCAFFERTY shall pay MARY MICHELINE MCCAFFERTY four thousand dollars ($4,000 00) per month until the Property is sold or she receives her share of the community property identified herein " Respondent has failed to pay the $4,000 00 per month as agr eed and Petitioner r equests enfor cement of this provision. 7 JOHN JEFFREY MCCAFFERTY agreed under the Divorce Decree to pay 50% of any college room and board of the children not covered by the Texas Tomorrow Fund while attending college full time from September through May Additionally JOHN JEFFREY MCCAFFERTY agreed to pay $500 per month to each child while attending undergraduate college full time, except duiing the summer session. JOHN JEFFREY MCCAFFERTY has failed to pay these expenses, and Petitioners request that he be ordered to pay these funds and that Petitioners have judgment against Respondent for these expenses 8. In the Final Decree of Divorce, the Court found that the 2005 White Volvo was Amanda McCafferty's separate property and that she should have clear title to the vehicle upon it being paid off Amanda McCafferty has never received the title to the vehicle and requests that JOHN JEFFREY MCCAFFERTY be ordered to provide proof of payment of the vehicle and that the title be provided to her  f c 9 All conditions precedent have been performed or have occurred Petitioners request that, if the Court finds that any part of the order sought to be enforced is not specific enough to be enforced, the Court enter a clarifying order restating the terms ofth.Q order, decree, or judgment in a manner specific enough to allow enforcement and specifying a reasonable time within which compliance will be required 10 It was necessary to secure the services of Holly R Monk, a licensed attorney, to enforce and protect the rights of Petitioners Respondent should be ordered to pay reasonable attorney's fees, expenses, and costs, and a judgment should be rendered in favor of the attorney and against Respondent and be ordered paid directly to the undersigned attorney, who may enforce the judgment in the attorney's own name. Petitioner requests postjudgment interest as allowed by law. Petitioner prays that citation and notice issue as required by law, that the Court grant the Petition for Enforcement of Property Division and Petition for Breach of Contract, for attorney's fees, expenses, costs, and interest, and for all further relief authorized by law Respectfully submitted, Bailey & Galyen 4131 N. Cental Expressway, Suite 860 Dallas, TeStte 75204 ] . '''WfifiphT6fÿnforce.nfi;i[it ........... ..... ..... , '727 7 _ . .. 7£age_3 Form #329 - NOTICE OF HEARING CAUSE NO PF-08-05932 SERVICE OFFICER: ATTY Clerk's fees $8 00 STYLE Officer's fees collected $ INTHE MATTER OF THE MARRIAGE OF Officer's fees not collected sxxx JOHN MCCAFFERTY Costs not complied with $ vs. Affidavit Inability to Pay s MARY MCCAFFERTY THE STATE OF TEXAS TO: JOHN JEFFREY MCCAFFERTY YOU ARE HEREBY NOTIFIED OF A HEARING SET FOR SEPTEMBER 30. 2013 AT 9:30AM IN THE 254th District Court LOCATED AT 600 COMMERCE STREET PALLAS TEXAS 75202 SEE ATTACHED HEREIN FAIL NOT, but of this writ make due return showing how you have executed the same. WITNESS: GARY FITZSIMMONS, Clerk of the District Courts, Dallas County, Texas.. GIVEN UNDER MY HAND AND SEAL OF SAID COURT, at office in the City of Dallas, ON THIS THE _______ 25th DAY OF JULY, 2013 ______ Issued at request of: ATTEST: GARY FITZSIMMONS HOLLY R MONK ÿ\»uiiii//;//Clerk of the District Courts 4131 N CENTRAL EXPRESSWAY SUITK&k) County, Texas DALLAS TEXAS 75204 r ,Deputy SACHEEN AÿTTHUNY"""""" Came to hand on the and executed on the delivering to _„day of _day of| O'fÿMt&ÿTURN __ ,20 , 20 , at_ ,at_ the within named .o'clock. o'clock M., in per son, a true copy of this Notice FEES: Serving Notice: $_ Officer .County. Mileage: $ IOTAL: $[ By:. Deputy EXHIBIT E  FILED DALLAS COUNTY 9/17/2015 3:19:30 PM FELICIA PURE DISTRICT CLERK Jeffery White CAUSE NO. 08-05932 MARY M,. MCCAFFERTY § m THE DISTRICT COURT ALANA MCCAFFERTY, AND § AMANDA MCCAFFERTY § § V„ § 254th JUDICIAL DISTRICT § JOHN JEFFREY MCCAFFERTY § DALLAS COUNTY, TEXAS SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR ENFORCEMENT Discovery Discoveiy in this case is intended to be conducted under level 2 of rule 190 of the Texas Rules of Civil Procedure Parties This suit is brought by Mary M, McCafferty, Alana McCafferty, and Amanda McCafferty, Petitioners.. The last three numbers of Petitioner's driver's license number are 943,, The last three numbers of Petitioner's Social Security number are 228 Respondent, John Jeffrey McCafferty, should be served with process in accordance with T exas Rule of Civil Pr ocedur e 21a by serving Counter -Respondent's attorney of r ecor d, Fr ank Shot , Law Offices of Frank Shor, 1620 East Belt Line Road, Canollton, Texas 75006 Enforcement Agreed final Decree of Divorce On July 17, 2009, this Court tendered an Agreed Final Decree of Divorce providing in relevant part as follows: SECOND AMENDED FETITIONFOR ENFORCEMENT OF PROPERTY DIVTSION AND PETITION FOR BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR ENFORCEMENT PAGE 1  I ( "The Court finds Amanda Lauren McCaffeity shall own as her separate property and shall have clear title to the 2005 White Volvo VIN#YVIC7911551145 741 uponthe Volvo being paid oft: "Additionally, John JeffreyMcCaffeity and Mary Micheline McCaffeity hereby agree to pay 50 % each for any room and board of the children, not covered by the Texas Tomorrow Fund, while attending undergraduate college full time from September through May IT IS AGREED the cost for room and board shall not exceed on-campus dormitory room and board cost. "Whilethe children are attendingundergraduate college full time, John Jeffrey McCaffeity and Mary Micheline McCaffeity hereby agree to pay 50% each for the children's health insurance "Additionally, John Jeffrey McCaffeity hereby agrees to pay $500 per month to each child, while attending undergraduate college full time, except during the summer1 session IT IS AGREED by the parties the children shall pay for their car insurance from the $500 per1 month "IT IS ORDERED AND DECREED that the husband, John Jeffrey McCaffeity, shall pay, as apart of the division of the estate of the parties, and shall indemnify and holdthe wife and her property harmless from any failure to so discharge, these items: "H-12 Fifty (50%) percent of medical, dental, optical, and counseling for the children since August 10, 2008 to the present, Any payments under this paragraphby John Jeffrey McCaffeity to Mary Micheline McCaffeity shall be an offset against any child support due or paid during this period " Respondent has failed to comply with the terms of the Agreed Final Decree of Divorce as follows: 1 Respondent has failed to pay the college expenses for room and board as agreed to in the Agreed Final Decree of Divorce Petitioner respectfully requests that Respondent be ordered to pay these funds and that Petitioner s beawaided a judgment against Respondent for these expenses 2 Respondent has failed to pay for his portion of the children's health insurance premiums as agreed to inthe Agreed Final Decree of Divorce Petitioner respectfully requests that Respondent be ordered to pay these funds and that Petitioners be awar ded a judgment against Respondent for these expenses SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISIONAND PETITION FOR BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ONPETITIONFOR ENFORCEMENT PAGE 2 I 1 ( 3 Respondent failed to pay $500 per month to each child while the children were in college as agreed to inthe Agreed Final Decree of Divorce Respondent r espectfully requests that Respondent be ordered to pay these funds and that Petitioners be awar ded a judgment against Respondent. 4 Respondenthasfailedtopaytiftypeicentofmedical, dental, optical, and counseling for the children from August 10, 2008 through the entry of the Agreed Pinal Decree of Divorce.. Petitioner respectfully requests that Respondent be ordered to pay these funds and that Petitioners be awarded a judgment against Respondent for these expenses. 5. Respondent has failed to provide Amanda McCafferty with the title to the vehicle Petitioner requests that Respondent be ordered to provide proof of payment of the vehicle and that the title be provided to Amanda McCafferty by a date and time certain Interim Order on Petition for Enfor cement On December 18, 2013, this Court rendered an Interim Order on Petition for Enforcement providing in relevant part as follows: "2 After the date the house is listed for sale, John Jeffery McCafferty will wire tr ansfer or direct deposit the sum of $6,000 00 per month on the 15th day of each month to Mary M.. McCafferty. . "4 If John McCafferty fails to deposit or wire the money inthe amounts or on the dates listed above, upon proof pr ovided to his attorney and to the Court, a receiver will immediately be appointed to list the house at 14327 Hughes Lane, Dallas, Texas for sale No further court hearings will be necessary to appoint the receiver Provided that evidence has been provided to John Jeffrey McCafferty's counsel that John Jeffrey McCafferty has failed to deposit or wire the money inthe amounts and/or on the dates listed hereinabove, then, in the event, Mary McCafferty's attorney will be fully authorized by this Order to pr esent an Order Appointing Receiver to the Court for signature without further notice to or agreement by John Jeffrey McCafferty or by counsel for John Jeffrey McCafferty" Respondent has failed to comply with the terms of the Interim Order on Petition for Enforcement as follows: SECOND AMENDED PETITIONFOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR BREACH OF CONTRACT AND FOR ENFORCEMENT OF INTERIM ORDER ONPETIIIONFOR ENFORCEMENT PAGE 3  ( 1. Respondent has failed to pay Petitioner the $6,000 00 per month as ordered by the Couitfor the months of May, Tune, and July 2015 Respondent respectfully requests that the Court order Respondent to pay the funds owed to Petitioner by a date and time certain In addition, Petitioner respectfully requests that the Court appoint a receiver to facilitate the sale of the 14327 Hughes Lane residence Petitioner was the petitioner and Respondent was the respondent in the prior proceedings Breach of Contract Respondent, without just excuse, has demonstrated a clear ,pr esent, and unconditional intention not to pay Petitioner the funds due to her pursuant to the terms of the Agreed Final Decree of Divorce As a r esult of this anticipatory breach of contract, Petitioner was forced to cash out a life insurance policy inPetitioner 's name andincur credit card debt and accruedinter est on such debt due to delays in Respondent's monthly payments to Petitioner' Petitioner seeks to recover consequential damages she was subjected to as a result of Respondent's breach of contract Clarification Petitioner requests that, if the Court finds that any part of the orders sought to be enforced is not specific enough to be enforced, the Court enter a clarifying order restating the terms of the order, decree, or judgment in a manner specific enough to allow enforcement and specifying a reasonable time within which compliance will be required, Attorney's Fees It was necessary for Petitioner to secure the services of Reagan K Vernon and KoonsFuIler, PC licensed attorneys, to enforce and protect the rights of Petitioner Respondent should be ordered to pay reasonable attorney's fees, expenses, and costs, and a judgment should be rendered in favor of the attorney and against Respondent and be ordered paid directly to the undersigned SECOND AMENDED PETITIONFOR ENFORCEMENT OF PROPERTY DIVISION AND PETITION FOR BREACH OF CONTRACT AND FORENFORCEMENI OF INTERIM ORDER ON PETITION FOR ENFORCEMENT PAGE 4  ( attorney, who may enforce the judgment in the attorney's own name Petitioner requests postjudgment interest as allowed by law Prayer Petitioner prays that citation and notice issue as required by law, that the Court grant the Petition for Eiiiorcement of Property Division and Petition for Breach of Contract and for' Enforcement of Interim Order on Petition for Enforcement, for attorney's fees, expenses, costs, and interest, and for all further relief authorized by law Respectfully submitted, KoonsFuller, PC.. 1717 McKinney Avenue Suite 1500 Dallas, Texas 75202 Tel: (214) 871 2727 Fax: (214)8710196 By:_ I : Reagan K. Vernon State Bar No., 24081192 reagan@koonsfuller com Attorney for Petitioner CERTIFICATE OF SERVICE Icertify 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 September' _13?2015 Reagan K Vernon Attorney for Petitioner SECOND AMENDED PETITION FOR ENFORCEMENT OF PROPERTY DIVISIONAND PETITION FOR BREACH OF CONIRACI AND FOR ENFORCEMENT OF INTERIM ORDER ON PETITION FOR ENFORCEMENT PAGE 5 EXHIBIT F  r r Fl -ED DALLAS coutlITY 10/1/2015 4:35:22 PM FELICIA PI 'RE DISTRICT CLI:RK ÿ Adrenna James CAUSE NO. 08-059,32 R MARY M. MCCAFFERTY, S INTHE DISTRICT COURT ALANA MCCAFFERTY and AMANDA MCOAFFERTY V. 254th DISTRICT COURT OF JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS RESPONSE TO (ANTICIPATED) APPLICATION FOR RECEIVER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, RespondentfCounteÿetitioner, JOHN JEFFREY MCCAFFERTY , hereinafter referred to herein as Respondent, and fries this his Response to (Anticipated) Application for Receiver, and for same would respectfully show the Court as follows: I. It is anticipated that Petitioner, Mary M McCafferty is going to present an Application for the appointment of a r eceiver in this matter Pr esumably this will be based upon the , instrument signed by the Court on December 18, 2013 (entitled "Interim Order on Petition for Enforcement") II. Respondent would show the Court that the appointment of a receiver here would be violative of law, Inthis regard, Respondent would show the following: A) The Divorce Decree in this case provides in pertinent part as follows: "MaritalResidence ITISFURTHER ORDERED AND DECREED that the pr operty andall improvements locatedthereon at lot 40 block 1/8175, Williamsburg At Preston An Addition to the City of Dallas According to the Plat thereof recordedin Volume 78090 Page 1397, Map Records of Dallas County, Texas, and more commonly known as 14327 Hughes Lane Dallas, Texas 75254, hereinafter "Property" shall be soldunder the following terms and conditions Response to (Anticipated) Application for Receiver Page 1 -  ( I The JOHNJEFFREY McCAFFERTY shalllist the property -with a duly licensedteat estate broker having sales experience in the area where the property is located 2 The property shall besoldfor aprice as determined by JOHNJEFFREY McCAFFERTY. MARYMICHEL1NEMcCAFFERTY shall receive $509,000. 00 as her share of the community property To ensure compliance of the monies due MARY MICHELINE McCAFFERTY, title to the Proper ty .shall not tr ansfer untilsuch time as MARYMICHELINEMcCAFFERTYhas received her communityproperty due or contemporaneous with a Nosing of the Property. ITISORDERED MARY MICHELINEMcCAFPERTYshall remove her name from the title to the Property upon receipt of her community property due ITISORDERED MARYMICHELINE McCAFFERTY shall sign a Special Warranty Deedremoving her name from title to the Property contemporaneous with the receipt of her share of the community property describedherein 3. JOHNJEFFREY McCAFFERTYshall continue to make allpayments ofprincipal, interest, taxes andinsurance on the property during the pendency of the sale and JOHNJEFFREY McCAFFERTY shall have the exclusive right to enjoy the use and possession of the premises until closing All maintenance and minor repairs necessary to keep the property in its present condition shall be paid by JOHN JEFFREY McCAFFERTY 4. The net sales proceeds (defined as the gross sales price less cost of sale andfull payment of any mortgage indebtedness or liens on the property) shall be distributed as follows a $509, 000 00 to MARYMICHELINEMcCAFFERTY (The parties agree the $509, 000, 00 is comprised (sic) of Wife 's share of the community property of $434,000.00from the equity of the marital residence, $45,000 00 to help her pay her credit cards in her name, $15, 000 00 towards ALANA NICOLE McCAFFERTY's automobile and $15,000 00 towards MARYMICHELINE McCAFFERTY automobile) Notwithstanding the forgoing language, JOHN JEFFREY McCAFFERTY shall be reimbursedfrom the $509,000 00 due MARYMICHELINE McCAFFERIY limitedto the following amounts 1 Monies paid Wife by Husbandafter divorce as an advance on her $509,000. 00 The advance on the $509,000 00 shall be defined by the amount Husbandpays Wife after divorce in the contemplated amount of$4, 000 00per monthpayable each 15th of the month The parties hereby agree the intent of the parties is Wife have monies until she receives her share of the communityproperty from JOHNJEFFREY McCAFFERTY, and 2 Health insurance payments paidby Husbandfor Wife after divorce, and 3 Only in the event ALANA McCAFEERTY elects to keep the black VOLVO, then $25,000. 00 shall be deductedfrom the $509,000 00 4 No other deductions from the $509, 000 00 shall be allowed, b Any balance of the netproceedsfrom the sale of the Property shall be paidto JOHNJEFFREY McCAFFERTY ITIS ORDEREDJOHNJEFFREY - Response to (Anticipated) Application for Receiver Page 2  McCAFFERTYmay exercise his option to buy the Property. In the event JOHNJEFFREY McCAFFERTYexercises his right to buy the Property, MARY M1CHELINEMcCAFFERTY nevertheless shall receive her share of the community property as identified inparagraph 4(a) of the paragraph titled "MaritalResidence " but subject to said deductions identifiedtherein IT IS ORDERED MARYMICHELINE McCAFFERTYshall cooperate in the refinancing or purchase of the marital residence by JOHNJEFFREY McCAFFERTY in the event he chooses to exercise the option to bÿy c It is the agreement of the parties that JOHNJEFFREY McCAFFERTY shall pay MARYMICHELINEMcCAFFERTYfour thousanddollars ($4,000 00) per month untilthe Property is sold or she receives her share of the community property identifiedhereinand such $4,000. 00per month shall be an offset against the $509, 000 00 due MARYMICHELINE McCAFFERY " B) The instrument signed by the Court on December 18,2013 (entitled "Interim Order on Petition foi Enforcement") provides as follows: "i John Jeffrey McCafferty will wire transfer or direct deposit into Mary M McCafferty 's bank account with Capital One Bankthe following sums $15,000 00 on November 12, 2015, $10,000 00 on December 15, 2015, and $10,000 00 on January 15, 2014 John Jeffrey McCafferty anticipates that the home at 15527 Hughes Lane, Dallas, Texas, will be listedfor sale by February 1, 2014 Untilthe house is listedfor sale, John Jeffrey McCafferty will continue to pay Mary M McCafferty the sum of $10, 000, 00 on the 15 day of each month 2 After the date the house is listedfor sale, John Jeffery McCafferty will wire transfer or direct deposit the sum of $6,000 00 per month on the 15th day of each month to Mary M McCafferty The account number was providedto John Jeffrey McCafferty in a separate document and will be used by him only for the purpose of the transfer of the money and no other purpose of any kind John Jeffrey McCafferty will not share or publish the account number to anyone other than Bankpersonnel and solely for the purpose of the transfer of the money. John Jeffrey McCafferty willpay any and all costs associated with the transfer of the money. 5, Ifthe 15th day of any monthfalls on a Saturday or a Sunday, John Jeffr ey McCafferty will wire or direct deposit the money into Mary M McCafferty 's account on the precedingFriday 4 IfJohn Jeffrey McCafferty fails to deposit or wire the money in the amounts or on the dates listedabove, uponproofprovidedto his attorney and to the Court, a receiver will immediately be appointed to list the house at 14527 Hughes Lane, Dallas, Texas for sale Nor further court hearings will be necessary to appoint the receiver Providedthat evidence has beenprovidedto John Jeffrey McCafferty *s counsel that John Jeffrey McCafferty has failed to deposit or wire the money in the amounts and/or on the dates listedher einabove, then, in that event Mary McCafferty's attorney will be fully authorized by this Order to present an Order Appointing Receiver to the Court for signature without further notice to or agreement by John Jeffrey McCafferty or by counselfor John Jeffrey - Response to (Anticipated) Application for Receiver Page 3  f McCafferty. 5 All amounts received by Maty M McCafferty under this Interim Order are to be credited against the obligations owed by John Jeffr ey McCaffer ty under the Decree ofDivorce datedJuly 17, 2009. " C) Family Code § 9 007 provides as follows: "(a) A court may not amend, modify, alter, or change the division ofproperty made or approved in the decree of divorce or annulment An order to enforce the division is limitedto an order to assist in the implementation of or to clarify the prior order and may not alter or change the substantive division ofproperty (b) An order under this section that amends, modifies, alter, or changes the actual, substantive division ofproperty made or approved in afinal decree of divorce or annulment is beyond the power of the divorce court and is unenforceable " As the December 18, 2013 instrument amends, modifies, alters and changes the division of pr operty made and approved in the decree of divorce, that same is beyond the power of the divorce Court and is unenforceable WHEREFORE PREMISES CONSIDERED, Respondent respectfully requests that the Court deny an application for the appointment of a receiver, and for such other and further relief, at law or equity general or special, to which Respondent may show himself justly entitled. Respectfully submitted, LAW OFFICES OF FRANK SHOR /s/ Frank Shor Frank Shor State Bar No 18294700 1620 East Belt Line Road Caxrollton, Texas 75006 (972) 242-8887 OFC (972)446-7976 FAX FrankShorLawFirm@gmail.com ATTORNEY FOR TOHN JEFFREY MCCAFFERTY - Response to (Anticipated) Application for Receiver Page 4  ( Certificate of Service I'ias is to certify that a true and correct copy of the above and foregoing was forwarded via e-frle to Ms. Reagan Vernon, attorney for Petitioner/Counter-Respondent, at 1717 McKinney Avenue, Suite 1500, Dallas, Iexas 75202,on this the fr day of October, 2015 /$/ Frank Shot Frank Shoi - Response to (Anticipated) Application for Receiver Page 5 EXHIBIT G  FILED DALLAS COUiHTY 10/9/20151:09:02 PM FELICIA PI RE DISTRICT CLIRK Paul Eagle CAUSE NO. 08-05932-R MARY M. MCCAFFERTY, § INTHE DISTRICT COURT ALANA MCCAFFERTY and § AMANDA MCCAFFERTY § V. 254th DISTRICT COURT OF JOHN JEFFREY MCCAFFERTY § DALLAS COUNTY, TEXAS FLEA TO THE JURISDICTION TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Respondent/Countex-Petitionei, JOHN JEFFREY McCAFFERTY, hereinafter referred to herein as "Movant", and files this his Piea to the Jurisdiction and for same would respectfully show the Court as follows: L Ostensibly, Petitioner, Mar y McCafferty, is requesting the Court to appoint a Receiver for purposes of facilitating the sale of apiece of real estate owned jointly by Petitioner, Mary McCafferty and Movant II. It is further presumed that Petitioner, Mary McCafferty's request (for the application of the appointment of a Receiver) is predicated upon the instrument entitled "Interim Order on Petition for Enforcement" and dated December 18, 2013 III. It will be shown to the Court that the terms of that instrument amends, modifies, alters or changes the terms of the Movant and Petitioner, Mary McCafferty's Divorce Decree Plea to the Jurisdiction Pagel  f IV. As a result thereof, the instrument entitled "Interim Older on Petition for Enforcement: is unenforceable. Iherefore, the Court lacks jurisdiction to giant the relief requested in Petitioner, Mary McCaffeity's application for the appointment of a Receiver WHEREFORE PREMISES CONSIDERED, Movant prays that the Court deny Petitioner, Mary McCaffeity's application for the appointment of a Receiver and grant Movant such other and further relief, at law or in equity, general or special, to which Movant may show himself justly entitled Respectfully submitted, LAW OFFICES OF FRANK SHOR A/ Frank Shor Frank Shor State Bar No 18294700 1620 East Belt Line Road Canollton, Texas 75006 (972)242-8887 OFC (972) 446-7976 FAX FrankShorLawFirm@gmail.com ATTORNEY FOR IEFF McCAFFERI Y Certificate of Service This is to certify that a true and correct copy of the above and foregoing was forwarded via e-file to Ms Reagan Vernon, attorney for Petitionei/Counter-Respondent, at 1717 McKinney Avenue, Suite 1500, Dallas, Texas 75202,on this the 3ÿ' day of October, 2015. A/ Frank Shor Frank Shot Plea to the Jui isdiction Page 2 EXHIBIT H  1 1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. DF-08-05932 3 MARY MCCAFFERTY, ET AL IN THE JUDICIAL 4 vs. DISTRICT COURT NO. 254 5 JOHN JEFFREY MCCAFFERTY DALLAS COUNTY, TEXAS 6 7 8 9 10 STATEMENT OF FACTS 11 12 MOTION TO APPOINT RECEIVER 13 14 15 16 17 18 19 On the 15th day of October, 2015, the following 20 proceedings came on to be held in the above-titled 21 and numbered cause before the Honorable Susan 22 Rankin, Judge Presiding, held in Dallas, Dallas 23 County, Texas . 24 Proceedings reported by computerized stenotype 25 machine .  2 1 APPEARANCES 2 MS. REAGAN VERNON 3 SBOT NO. 24081192 KoonsFuller, P.C. 4 1717 McKinney Avenue Suite 1500 5 Dallas, Texas 75202 (214) 871 - 2727 6 FOR THE PETITIONER 7 8 MR. FRANK SHOR SBOT NO. 18294700 9 Law Offices of Frank Shor 1620 E. Belt Line Road 10 Carrollton, Texas 75006 (214) 242 - 8887 11 FOR THE RESPONDENT/ COUNTER PETITIONER 12 13 14 15 16 17 18 19 20 21 22 23 24 25  1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 October 15, 2015 Argument by Ms. Vernon Argument by Mr . Response by Ms. Vernon Response by Mr. Shor Court's Ruling PETITIONER'S WITNESSES REAGAN VERNON Shor Direct 14 Court's Ruling on Attorney's Fees Petitioner Rests and Closes Argument by Mr . Shor Argument by Ms. Vernon Court ' s Ruling ....... ... ...... Court Reporter's Certificate.. REAGAN VERNON Cross — . CHRONOLOGICAL INDEX VOLUME 1 OF 1 VOLUME MOTION TO APPOINT RECEIVER . . ALPHABETICAL WITNESS INDEX Direct 14 Cross — VD — VD — 5 8 10 12 14 15 16 17 18 19 22 1 1 1 1 1 1 1 1 1 1 1 3 Page Vol. Vol. 1 Vol. 1  4 1 PROCEEDINGS 2 (October 15, 2015; 8:04 a.m.) 3 THE COURT: Okay. We're here on the — the 4 issue regarding the receivership, correct? 5 MS. VERNON: Yes, your Honor. 6 THE COURT: Okay. So that would be — 7 let's just go ahead and announce — for the record, 8 counsel . 9 MR. SHOR: Judge, I'm Frank Shor here on 10 behalf of respondent/counter petitioner 11 John Jeffrey McCafferty. 12 And, Judge, if Ican just ask for a little 13 more precision. Ibelieve it's an application for 14 receiver predicated upon an instrument labeled "Interim 15 Order" that was signed in December of 2013. That's what I 16 understand we're here on today. 17 THE COURT: Counsel, your appearance for 18 the record and then a comment. 19 MS. VERNON: Reagan Vernon here on behalf 20 of Mary McCafferty, the petitioner in this case. And, 21 yes, it's my understanding that this hearing is to 22 determine the enforceability of that interim order. 23 THE COURT: Are you in agreement with the 24 way that was phrased, Mr. Shor? 25 MR. SHOR: Yes, your Honor.  5 1 THE COURT: Okay. Go ahead and proceed. 2 I'm going to call you Reagan. 3 MS.. VERNON: That's fine, your Honor. 4 THE COURT: Go ahead. 5 MS. VERNON: Your Honor, the interim order 6 in question is enforceable because this is an agreed 7 order. It was agreed to by the parties. It specifically 8 says in the order "the parties agree and it is ordered." 9 And unless the provisions that are 10 applicable to my appearance here today, which is to get a 11 receivership over the house, the parties agree to modify 12 their decree and they outline those modifications in that 13 order. 14 They both signed the decree, they're both 15 represented by counsel, and their counsel signed that 16 order. The allegations that it is unenforceable or that 17 it's void based on 9.007 of the Family Code is wholly 18 unapplicable in this case because that's based on if the 19 Court modifies or does more to change the provisions in 20 a party's decree, then, yeah, it would be void if it 21 really was a substantial modification that the Court 22 ordered. 23 But in this case, Idon't even believe that 24 even if the Court had patently ordered what was in the 25 interim order that it would be void under that section.  6 1 But, nevertheless, they agreed to it. And so that 9.007 2 discusses that the Court can't make those modifications, 3 but here we have an agreement by the parties, an agreement 4 by Mr. McCafferty to make certain payments. 5 He has failed to make payments, not only 6 under the decree which gave rise to this action, but also 7 under these interim orders. And as a result, the 8 punishment is coming down. 9 You don't make the payments, I'm permitted 10 to come down here without the necessity of the hearing, 11 which is what we're doing here today because he's trying 12 to fight this agreement he made and the modifications he 13 made to the decree for me to come down here and get 14 a receivership if he misses these payments. And so under 15 that agreement, I'm allowed to come down here and present 16 you with an order. 17 And that's the end of it, so that my client 18 doesn't have to continue to incure fees to come and 19 enforce orders that we knew he would end up violating, 20 which is why we have those provisions in that order that 21 allows me to come down here without the necessity of 22 a hearing, without the necessity of a motion, to just have 23 an order appointing a receiver. 24 And that was agreed to by his client. And 25 _ now that he's missing payments, he's corning here to  7 1 complaint to you, Judge, saying, "No, the order is void- 2 It's unlawful modification- 11 But no, no, no, no, you 3 agreed to this. And this is an agreement made two years 4 ago, and this is the first time we're hearing him complain 5 today. 6 And now my client is incurring fees, which 7 I'm requesting here today, your Honor. 8 THE COURT: Do you have an extra copy of 9 the order that you're going to enforce, Counsel? 10 MS. VERNON: Yes, your Honor, Ido. Ialso 11 have a brief that Ican provide you because Ithink it was 12 e-filed today.. And so I'm sure it's not on your system 13 yet. 14 THE COURT: You were up early if you 15 e-filed it today. 16 MS. VERNON: Iknow you probably have that 17 order, too. 18 May Iapproach, your Honor? 19 THE COURT: Yes, please. Thank you. 20 MS,. VERNON: Here's the — here's the 21 brief. 22 THE COURT: Thank you. 23 MS. VERNON: And, Judge, the brief just 24 goes into more detail on what Ijust argued today, 25 provides the case law; but if you'd like me to go further  8 1 into why 9.007 doesn't apply, regardless if there was an 2 agreement or not, Ijust went ahead and briefed that issue 3 for you as well. 4 THE COURT: Okay. Thank you. 5 Mr. Shor, your response. 6 MR. SHOR: May Iplease the Court. 7 Judge, we filed a plea to the jurisdiction 8 on October 9th, 2015. The basis of that plea to the 9 jurisdiction is certainly 9.007 of the Family Code that 10 says, in essence, an order that alters, amends, modifies 11 the terms of a property division in a divorce decree is 12 unenforceable . 13 There are no ifs, ands, buts, or however s. 14 Following the language, the order is unenforceable. There 15 hasn't been any pleading from the petitioner subsequent to 16 the pleading of the jurisdiction. And the case law is 17 that one of the ways to raise that which 9.007 provides is 18 by a plea to the jurisdiction that the Court does have the 19 power to enforce an order that alters, amends, or modifies 20 property division in the divorce decree. 21 And you raise that by a plea to the 22 jurisdiction. We haven't heard anything from Ms. Vernon 23 as to how this Court has jurisdiction to do that which she 24 is requesting the Court to do based upon the document 25 labeled "Interim Order".  9 1 And Ithink the Court understands this. 2 But if the risk of being overly anal — she's not 3 requesting a receiver at this time based on the terms of 4 the divorce decree. It's merely predicated on the interim 5 order. Claxton versus Lake Fork Water Control, 220 S.W. 6 3d 537 tells us that a party cannot confer or waive 7 jurisdiction by consent or agreement. 8 And, by the way, Iapplaud counsel. We — 9 we exchanged, last evening, the primary cases that each of 10 us were going to be relying upon in presenting our 11 positions to the Court this morning. So Ibelieve that 12 Ms. Vernon was aware that I' d be citing this case this 13 morning . 14 And so jurisdiction is not something that 15 parties can confer. And so when this instrument entitled 16 "Interim Order, Petition for Enforcement" is agreed to by 17 Mr. McCafferty, he doesn't confer any more jurisdiction in 18 this court than the Court already had. Idon't want to be 19 so naive as to suggest that perhaps there are some 20 remedies that, are available to the petitioner based upon 21 this interim order. 22 Arguably, there's an accordance 23 satisfaction claim, which hasn't been pled. Laches has 24 not been pled as a— as a defense to the plea to the 25 jurisdiction even though Idon't believe that laches would  10 1 apply because you can't confer jurisdiction merely by an 2 action, except subject manner jurisdiction where if you're 3 served and you don't answer, if you had this subject 4 matter jurisdiction by defaulting, you'd waive that. 5 We don't have that situation here. And so 6 we have a situation where there's an order. It certainly 7 alters, amends, or modifies the decree.. And we know that 8 in two ways. First, the terms of this interim order call 9 for increased monthly payments versus the monthly payments 10 in the divorce decree. So we know that one way. 11 The second way we know that is because this 12 is the instrument she's relying upon and not the divorce 13 decree for the liens being sought today. And so, we can 14 talk about this ad nauseam. Iwant to be sensitive to 15 Court's time and everybody's time. 16 The Court doesn't have jurisdiction to do 17 what — what Petitioner wants based upon this order,. 18 THE COURT: Thank you, Mr. Shor. 19 Response, Ms. Vernon. 20 MS. VERNON: Judge, this isn't 21 a jurisdictional question. The judge — well, the Court 22 always has the ability to enforce its orders and enforce 23 agreements — property settlement agreements in a divorce 24 decree. This is an interim order that the parties agreed 25 to.  11 1 The judge is — absolutely has 2 a jurisdiction to enforce that agreement just as if it 3 appeared in the divorce decree. By a virtue of that 4 argument, that would mean every time we're in an 5 enforcement case and the parties settle and have 6 a settlement agreement, one of the parties could say, you 7 know, "Oh. No, Judge, you never had jurisdiction because, 8 you know, we agreed to a modification of our property 9 settlement agreement, and you don't have jurisdiction 10 anymore to enforce that agreement. 11 It would just make — it makes no sense and 12 it's illogical. Secondarily, his argument kind of goes 13 into the weeds a little bit about whether or not the 14 interim order is in violation of the 9.007. We don't even 15 get there, Judge, because they — parties agreed to modify .16 the property settlement agreement. 17 And so it's not the Court, which is, you 18 know, the Court that's actually modifying the decree. 19 But, alternatively, even if that were the case, let's say 20 they never agreed to it and a judge just rendered thi.s 21 interim order. It's still enforceable because it's not a 22 substantive modification. 23 It's simply a clarification to enforce 24 a property settlement agreement and money that she is due 25 and owed and he is in violation of paying her for it. And  12 1 that's — that's kind of what Idelve into the secondary 2 part of my brief is that it's not a — the judge is always 3 welcome to change the method and manner of how somebody 4 receives a property settlement agreement. 5 They can make it — and the judge well 6 knows that you can order a receivership to enforce 7 whatever settlement that my client is due under the decree 8 on its own. Imean, we can come in here and do that which 9 is what was done two years ago and agreed to by the 10 parties along with other provisions that if he failed to 11 make some payments, that Icould come down here without 12 the necessity of a hearing again. 13 And if the judge would like to hear my 14 testimony as to attorney's fees, I'm happy to do so and 15 prepared to do so because under that agreement, Iwas 16 not — under that agreement, Idid not have to come down 17 here and not only defend the agreement but also have 18 a hearing on the appointment of a receivership. 19 It was supposed to be automatic, and I 20 would just present an order to the Court which would save 21 my client fees in this case. Thank you. 22 MR. SHOR: Now, may Ibrief at one point, 23 your Honor? 24 THE COURT: You may.. 25 MR. SHOR: I'm not arguing that this Court  13 1 under no circumstances has the authority to appoint 2 a receiver. I'm not arguing that. I'm arguing that the 3 Court doesn't have the jurisdiction to order a receiver 4 based upon this interim order. 5 Counsel suggested that the interim order is 6 merely a clarification. If it's merely a clarification, I 7 would agree that that's not an order that would amend, 8 modify, or alter the division of property. 9 But she's not relying upon the decree. 10 She's relying upon the interim order. If the Court 11 examined the interim order, it calls for monthly payments 12 to be increased either to 6,000 per month or 10,000 per 13 month versus 4,000 per month in the decree. 14 Ifind it hard to understand how those 15 increased payments don't alter, amend, or modify the 16 property division. It gets her her money quicker. That 17 amends, alters, or modifies the decree. And so, Judge, 18 once again, there are contractural remedies that may be 19 available to the petitioner. 20 But asking the Court to order a receiver 21 based on the interim order lies on the face of 9.007. 22 THE COURT: Okay. Thank you. We will be 23 in recess for about ten minutes while Iread the brief. 24 (Off the record; 8:19-8:29) 25 THE COURT: Thank you. Please be seated.  14 1 After reading the plea to the jurisdiction and 2 respondent's brief and 9.007 and the interim order, the 3 Court finds that the Court does have jurisdiction to 4 enforce the agreement of the parties as found in the 5 interim order on petition for enforcement and orders the 6 appointment of the receiver. 7 Do you have an order, Ms. Vernon? 8 MS. VERNON: Ido. And also my testimony 9 on attorney's fees if the Court is — 10 MR. SHOR: I'll waive the oath, your Honor. 11 THE COURT: Okay,, Thank you. Go ahead and 12 testify. 13 MS. VERNON: Okay. My name is 14 Reagan Vernon. I'm an attorney licensed to practice in 15 the State of Texas. My billing rate as specified by my 16 fee contract with my client is $250 per hour. My 17 paralegal's billing rate is $'140. 18 I'm familiar with the fair and reasonable, 19 usual and customary fees charged by family lawyers in 20 Dallas County, Texas. It is my opinion that the 21 attorney's fees incurred by my client pertained to this 22 lawsuit have been reasonable and necessary and reflect the 23 usual and customary fees charged for the same or similar 24 matters . 25 I've spent a total of six hours in  15 1 preparing for this hearing, including an hour that 2 allocated to the attendance of this hearing and attending 3 the last conference, doing — conducting legal research, 4 drafting the brief for the Court in response to the 5 attempt to invalidate the interim order, conducting 6 conferences with my client, assigning tasks to my 7 paralegal, who has spent 30 minutes in assisting me. 8 Attorney fees and costs for my client that 9 are attributable for preparing and attending this hearing 10 totals $1,570. My client would' ve never incurred $1,570 11 but for Mr. McCafferty's attempt to get this Court to 12 overturn the interim order that specifically states that I 13 didn't have to come down for a hearing on this issue. 14 It's my opinion that the $1,570 in fees and 15 costs have both been reasonable and necessary in 16 representing my client in this matter and that such fees 17 to be paid by Mr. McCafferty are in conformity with the 18 Texas Rules of Civil Procedure and the Texas Family Code. 19 THE COURT: Pass yourself? 20 MS. VERNON: Pass myself. 21 MR., SHOR: Ihave no questions, your Honor. 22 MS. VERNON: And may approach with the 23 orders, your Honor? 24 THE COURT: You may,. 25 The Court grants attorney's fees of $1,570  16 1 finding it reasonable and necessary under these 2 circumstances .. 3 MS. VERNON: Your Honor, I'm presenting two 4 orders. One, Ileft blank in case your Honor wanted to 5 choose the receiver* The other, Ichose a realtor in the 6 Dallas County area for where this house is located. So — 7 and Fred Mams told me that you appointed somebody the 8 other day that you really liked, and so Ijust brought two 9 different — 10 THE COURT: Do you have an opinion in 11 regards to who the receiver would be, Mr. Shor? 12 MR. SHOR: Well, Imay, your Honor. I'm 13 presuming that the petitioner has rested and closed on 14 this motion. 15 THE COURT: Yes. 16 MS. VERNON: Yes, your Honor. 17 THE COURT: Well, Idon't know if rest and 18 close regarding the motions but, yes, sir. Go ahead. 19 MR. SHOR: Is that correct? 20 MS. VERNON: Yes. 21 MR. SHOR: Well, if that's correct, your 22 Honor — this may seem like sharp practice, but this is 23 what my legal training tells me to say. The only evidence 24 that's before the Court is that Ms. Vernon has testified 25 as to attorney's fees,  17 1 There's no evidence before the Court that 2 that which is required in the interim order — and by the 3 way, Idon't mean to waive my prior argument that the 4 Court can't enforce it. The Court understands my 5 argument. But if that order is enforceable, there is 6 still a predicate that has to occur for the receiver to be 7 appointed under that order, and that hasn't been proven. 8 THE COURT: Mr. Shor, Iknow exactly what 9 you're talking about; but in my opinion, you waived that 10 argument when we started this proceeding because you never 11 stated that your client wasn't behind,. 12 MR. SHOR: Idon't believe the burden of 13 proof is on me, Judge, to prove their — the matters that 14 they need to prove. Now, we do have a trial setting 15 November 12th. So — 16 THE COURT: On other issues? 17 MR. SHOR: On the merits of this case. 18 THE COURT: Okay. I'm still on the 19 appointment of the receiver. Iunderstand your argument 20 but I'm overruling the objection. 21 MR. SHOR: Well, Judge, if — if you want 22 to hear from me regarding either of these proposed orders, 23 they call for the parties to sign any real estate listing 24 agreement. That could compel these parties to sign 25 a lease agreement that calls for property to be sold for  18 1 $1. 2 And I — Idon't think that that's what the 3 petitioner wants. It's certainly not what the respondent 4 wants. And the property is listed for about 5 $1,399 million right now. Hasn't sold. But that's what 6 it's listed for. But this doesn't set a base as to what 7 it can be sold for, and Isuggest that either one of these 8 orders could cause a— a forfeiture for these people. 9 MS. VERNON: The realtors owe their clients 10 fiduciary duties. And they have an interest in selling 11 the house for as much as they can because they get a 12 percentage off of that. And that's where their fees will 13 come out for being a receiver . 14 THE COURT: Iunderstand that but the 15 phrase that Mr. Shor specifically is pointing out is 16 signing any real estate listing agreement can leave these 17 parties wide open to a lot of problems, to put it lightly. 18 MS. VERNON: Imean, I'm happy to write in 19 that they — if it's currently listed, you know — Imean, 20 it's been listed three times now. So I'm sure that the 21 contract, that currently exists, and if it's truly at 1.3, 22 then that's fine. We can sign a listing agreement that is 23 listed for 1.399 if that's what it is. 24 Imean, he already agreed to it. 25 MR. SHOR: That's correct.  19 1 THE COURT: Is that agreeable to you 2 Mr. Shor, 1.399? 3 MR. SHOR: Judge, that's a much better term 4 to have in this order than — when you say it's agreeable 5 to me, I'm opposing this order. 6 THE COURT: Well, under duress. 7 MR. SHOR: I'm opposing the Court from 8 signing this order. But that at least addresses the 9 possibility of there being a forfeiture here. 10 THE COURT: Why are you asking for the 11 appointment of two receivers? 12 MS. VERNON: They work together and they're 13 part of their own realtor group. It's just going to be — 14 THE COURT: Do they share the fee or do 15 they ask for more fees? 16 MS. VERNON: They're — it's just going to 17 be the one. Ithink Ishould 've put "or," Isuppose.. I 18 haven't spoken to all three.. In terms of just — Ijust 19 suggested those people because they've done it before for 20 our firm in the past and work well in this area; but they 21 all work well together . So Isuppose Ishould say "or ." 22 It's just that they're found as good 23 receivers — qualified receivers but not to be appointed 24 together. 25 THE COURT: Okay. I've modified the order  20 1 to state that it's Eve Sullivan or Shelly Tillery. Then I 2 have stated that they will sign a real estate listing 3 agreement that lists the property initially at 4 1.399 million. And Ihave ordered to attorney's fees to 5 be paid on or before 11/1/15 at Mrs. McCafferty's 6 residence . 7 And I've taken out the last line that said 8 they may enforce by contempt if the parties do not 9 cooperate . 10 MR. SHOR: Judge , there's another phrase 11 that Ithink needs a little bit of massaging. 12 THE COURT: What is that? 13 MR. SHOR: The paragraph second from the 14 bottom. It is further ordered that Eve Sullivan or 15 Shelly Tillery — I'm saying "or" because Ithink the 16 Court — 17 THE COURT: Correct. 18 MR. SHOR: — are authorized to manage, 19 control, and dispose of the property as they see fit in 20 their sole discretion. Ithink it should be something 21 like in accordance with the listing agreement or some 22 qualifier . 23 MS. VERNON: That's fine with me, Judge. 24 Another point: Mr. McCafferty does not know where my 25 client resides because there was — back when they were  21 1 interacting. 2 THE COURT: Okay. So where do we want this 3 sent, then? 4 MS. VERNON: It can be just sent back to my 5 office. 6 THE COURT: Okay. I've made the 7 adjustments that we've stated. I'm going to make a copy 8 for you-all. 9 (Proceeding ended; 8:42 a,.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25  22 1 STATE OF TEXAS 2 COUNTY OF DALLAS 3 I, Janet Saavedra, Official Court Reporter in 4 and for the 254th Judicial District Court of Dallas 5 County, State of Texas, do hereby certify that the 6 above and foregoing contains a true and correct 7 transcription of all portions of evidence and other 8 proceedings requested in writing by counsel for the 9 parties to be included in this volume of the 10 Reporter's Record, in the above-styled and numbered 11 cause, all of which occurred in open court or in 12 chambers and were reported by me. 13 X further certify that this Reporter's Record 14 of the proceedings truly and correctly reflects the .15 exhibits, if any, admitted by the respective 16 parties. Ifurther certify that the total cost for 17 the preparation of this Reporter's Record is $176 18 and was paid by Mr. Frank Shor, attorney for the 19 Respondent/ Counter Petitioner. 20 WITNESS MY OFFICIAL HAND this the 30th day of 21 October, 2015. 22 23 Janet Saavedra, Texas CSR #9160 Expiration Date: 12/31/2017 24 Official Court Reporter 254th Judicial District Court 25 Dallas, Texas 75202 — Telephone: 214)653 - 6602 -