the Estate of Francis W. Sinatra Jr. v. Cynthia Sinatra

ACCEPTED
13-14-00565-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
7/21/2015 4:07:39 PM
CECILE FOY GSANGER
CLERK

NO. 13-14-00565-CV
FILED IN
IN THE THIRTEENTH COURT OF13th
APPEALS
COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
7/21/2015 4:07:39 PM
CORPUS CHRISTI, TEXASCECILE FOY GSANGER
Clerk
__________________________________________________________

FRANCIS W. SINATRA
Appellant

v.

CYNTHIA SINATRA,
Appellee
__________________________________________________________

Appealed from the 329th Judicial District Court, Wharton County, Texas
__________________________________________________________

APPELLANT’S REPLY BRIEF
__________________________________________________________________

LYNN KURIGER STANTON WARREN COLE
State Bar No. 11767600 State Bar No. 04549500
JENKINS & KAMIN, L.L.P. LAW OFFICE OF WARREN COLE
TWO GREENWAY PLAZA, STE. 600 3355 W. ALABAMA, STE. 825
HOUSTON, TEXAS 77046 HOUSTON, TEXAS 77098
TEL: (713) 600-5500 TEL: (713) 275-4444
FAX: (713) 600-5501 FAX: (713) 400-9144
lstanton@jenkinskamin.com warren@warcolelaw.com

ATTORNEYS FOR APPELLANT
FRANCIS W. SINATRA, JR.

ORAL ARGUMENT REQUESTED
 TABLE OF CONTENTS

Table of Contents ..................................................................................................ii

Index of Authorities .............................................................................................iv

Issues Presented [Restated]....................................................................................vii

Argument and Authorities

I. Reply and Additional Argument on Issue One
[Relating to Court’s Ruling of Informal Marriage] ....................................1

A. Introduction and Scope of Frank’s Reply on Informal
Marriage .............................................................................................1

B. Summary of Direct and Circumstantial Evidence “For” and
“Against” Common Law Marriage ..................................................3

1. Analysis of Cynthia’s claim of agreement to be
married contrasted with Frank’s evidence showing
no agreement ..............................................................................4

a. Cynthia’s meager evidence favoring an agreement
does not rise above a bare scintilla ..................................4

b. Preponderance of evidence offered by Cynthia and
Frank is contrary to any agreement to be married ............6

2. Analysis of Cynthia’s claim of living together in Texas,
contrasted with Cynthia’s and Frank’s evidence showing
he has always lived in California ............................................13

a. Preponderance of evidence offered by Cynthia and
Frank is contrary to court’s ruling .................................13

ii
 b. Additional rebuttal on Cynthia’s claim of living
together .........................................................................15

II. Reply and Additional Argument on Issue Two and Issue Three
[Relating to Court’s Ruling on Frank’s Hensal Road home and
$500,000 equalization judgment ] ..............................................................18

A. Frank met his burden of proof to show that the Hensal
Road home was his separate property ...........................................18

B. The court abused its discretion when it allowed Cynthia
to withdraw her stipulation that the Francis W. Sinatra
Trust was separate property because the stipulation
was binding and conclusive as to the fact conceded and
Cynthia was estopped from claiming to the contrary ...................21

C. Frank disputes Cynthia’s arguments regarding the state
of discovery, Charles Gerhardt’s testimony and the
inventory prepared by him. ............................................................24

Prayer for Relief ..................................................................................................28

Certificate of Compliance .....................................................................................30

Certificate of Service ............................................................................................31

Index to Appendix ..................................................................................................32

A Cynthia - Frank Correspondence
[Petitioner’s Exhibits 29 - 32; Respondent’s Exhibits 36, 38]

B Correspondent relating to Discovery
[Petitioner’s Exhibits A, B, C. D]

iii
 INDEX OF AUTHORITIES

Cases

Bomar Oil and Gas, Inc. v. Loyd, 381 S.W.3d 689
(Tex.App.–Amarillo 2012, pet. denied) ........................................................24

Boyd v. Boyd, 131 S.W.3d 605 (Tex.App.–Fort Worth
2004, no pet.) ................................................................................................20

Burden v. Burden, 420 S.W.3d 305
(Tex.App.–Texarkana 2013, no pet.). ........................................................4, 8

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005). ................................2, 6, 13

Farrell v. Farrell, 459 S.W.3d 114 (Tex.App.–
El Paso 2015, no pet.) .....................................................................................7

Gary v. Gary, 490 S.W.2d 929(Tex.Civ.App.–Tyler
1973, writ ref’d n.r.e.) ....................................................................................4

Gulf Coast Construction Co. v. Self, 676 S.W.2d 624
(Tex.App.–Corpus Christi 1984, writ ref’d n.r.e.) .......................................22

Hart v. Webster, 2006 WL 1707975 (Tex.App.–Austin
2006, no pet.) ................................................................................................12

In the Interest of C.M.V., —S.W.3d—, 2015 WL 2265388
(Tex.App.–El Paso 2015, no pet. h.) ..............................................................4

In the Matter of the Marriage of Tandy, 532 S.W.2d 714
(Tex.Civ.App.–Amarillo 1976, no writ) .......................................................21

Lewis v. Anderson, 173 S.W.3d 556
(Tex.App.–Dallas 2005, pet. denied). .....................................................4, 12

iv
Lozano v. Lozano, 52 S.W.3d 141 (Tex. 2001) ........................................................7

Mills v. Mest, 94 S.W.3d 72 (Tex.App.–Houston
[1st Dist.] 2002, pet. denied) ............................................................................8

Moroch v. Collins, 174 S.W.3d 849 (Tex.App.–
Dallas 2005, pet. denied) ...............................................................................21

Russell v. Russell, 865 S.W.2d 929 (Tex. 1993) ...............................................5, 15

Small v.McMaster, 352 S.W.3d 280 (Tex.App.–Houston
[14th Dist.] 2011, pet. denied) .........................................................................4

Thomas v. Sun Life Assurance Co. of Canada, 2010 WL 2991116
(S.D. Tex. 2010) ....................................................................................5, 6, 15

Tompkins v. State, 774 S.W.2d 195 (Tex.Crim.App. 1987) ...................................4

Welder v. Welder, 794 S.W.2d 420 (Tex.App.–Corpus Christi
1990, no writ) .........................................................................................20, 21

Winfield v. Renfro, 621 S.W.2d 640(Tex.App.–Houston
[1st Dist.] 1991, writ denied). .....................................................................4, 9

Zagorski v. Zagorski, 116 S.W.3d 309 (Tex.App.–Houston
[14th Dist.] 2003, pet. denied) ................................................................20, 21

Statutes and Rules

TEX. FAM. CODE § 2.401 .....................................................................................3, 7

TEX. CIV. PRAC. & REM. CODE, Chapter 10 ............................................................7

TEX.R.CIV.P. 13 ........................................................................................................7

v
 ISSUES PRESENTED
[Restated]

Issue Relating to Informal Marriage
Issue One

The trial court abused its discretion when it ruled that Frank and Cynthia
entered into an informal marriage on or before April 27, 2002, because there is
legally insufficient, or alternatively, factually insufficient evidence to establish
the requisite elements: (1) an agreement to be married; (2) after the agreement,
living together in Texas as husband and wife; and (3) representing to others in
Texas that they are married. [Challenging Final Decree CR 193, 208-209;
Interlocutory Order-Common Law Marriage CR 156-57; Findings of Fact and
Conclusions of Law CR 224-25 at ¶¶ 3, 4, 5, 7, 11, 13, 26; See, Request for
Additional and Amended Findings of Fact and Conclusions of Law CR226-27 at ¶¶
1, 2, 3, 4 CR 229 at ¶ 11, See also Motion for New Trial CR 217 at ¶¶ 5, 6]

Issues Relating to Characterization and Division of Property

Because Frank contends that the trial court’s ruling on common law-informal

marriage is contrary to Texas law and should be reversed, he also contends that all

subsequent rulings which purport to divide a community estate and which

characterize portions of Frank’s separate property as owned by the non-existent

community estate and awarded to Cynthia are an abuse of discretion and erroneous

as a matter of law. However, in the event the Honorable Court upholds the common

law marriage theory, then Frank presents the following additional issues complaining

of the trial court’s Final Decree of Divorce.

vi
Issue Two

Because the evidence was legally and factually insufficient to establish the
community property character of the Hensal Road home and the funding into
the trust’s bank account which purchased the home, the trial court erred when
it failed to confirm the Francis W. Sinatra Trust as Frank’s separate property,
when it mischaracterized the funds that had purchased the Hensal Road house
as community property, and when it awarded one-half of the Hensal Road house
to Cynthia. [Challenging Final Decree at CR 194-95, 196-97, 198-99, 201-02;
Findings of Fact and Conclusions of Law at CR 224-25, ¶¶ 7, 14, 16, 28; RR 6: 59-
60; See, Requests for Additional and Amended Findings of Fact and Conclusions of
Law at CR227 ¶¶ 5, 6, CR 228 at ¶ 9, CR 229 at ¶ 12, CR 230 at ¶ 13; See also
Motion for New Trial CR 218 at ¶¶ 7, 8, 9]

Issue Three

The trial court abused its discretion when it ordered Frank to pay Cynthia
a judgment in the amount of $500,000 to equalize its division, because there is
legally insufficient, or alternatively, factually insufficient evidence to support
the court’s finding that Frank had possession and control of $1,000,000 in
unspent cash and earnings paid to him during marriage. [Challenging Final
Decree at CR 202; Findings of Fact and Conclusions of Law at CR 224-25, ¶¶ 13, 28;
RR 6: 61-62; See, Requests for Additional and Amended Findings of Fact and
Conclusions of Law at CR 227-28 at ¶¶ 7, 8, CR 230 at ¶ 14; See also Motion for
New Trial at CR 218-19, ¶ 10]

Issue Four

The trial court’s mischaracterization of the Hensal Road house as
community property, together with the equalization judgment of $500,000,
caused the trial court to abuse its discretion in making its property division
where the values of the assets and the equalization judgment awarded to Cynthia
resulted in a manifestly unfair, unjust, and disproportionate division of the
marital estate which is not “just and right” and which is not supported by legally
and factually sufficient evidence. [Challenging Final Decree at CR 194-200, 202-
03; Findings of Fact and Conclusions of Law at CR 1 - 2, ¶¶ 7, 11, 13, 14, 28; See,
Requests for Additional and Amended Findings of Fact and Conclusions of Law at

vii
CR227 ¶¶ 5, 6, 7, 8, CR 228 at ¶ 7, 8, 9, CR 229 at ¶ 12, CR 230 at ¶¶ 13, 14]

Issue Five

The trial court abused its discretion when it ordered Frank to pay Cynthia
$5,000 per month, because the evidence is legally insufficient, or alternatively,
factually insufficient to support the statutory prerequisites for spousal
maintenance. [Challenging Final Decree at CR 202-03; Findings of Fact and
Conclusions of Law at CR 225, ¶¶ 21, 22, 23; RR 6: 62-63; See, Requests for
Additional and Amended Findings of Fact and Conclusions of Law CR 229 at ¶¶ 19,
11; See also, Motion for New Trial at CR 219, ¶ 11]

viii
 ARGUMENT AND AUTHORITIES

I. Reply and Additional Argument on Issue One
[Relating to Court’s Ruling of Informal Marriage]

A. Introduction and Scope of Frank’s Reply on Informal Marriage.

In order to prove the existence of an informal marriage, a proponent is

required to prove each of three statutory elements. See TEX. FAM CODE § 2.401(a)(2).

Cynthia contends that because she presented some evidence on each of the three

elements, the judgment must be affirmed without regard to undisputed facts which

rendered Cynthia’s supporting evidence incompetent.

Frank disputes Cynthia’s interpretations of proper evidentiary review. The trial

court was not free to believe Cynthia and her claim of informal marriage when

Cynthia herself offered irreconcilable and shifting versions of events which were

negated by Cynthia herself in her pleadings, trial testimony, and documentary

evidence. Without regard for the requirement that a fact-finder’s determinations on

credibility must be reasonable, she argues this Court must give absolute deference to

the trial court’s acceptance of Cynthia as a credible witness and the weight to be

given her testimony.

Frank contends that Cynthia’s evidence should not be afforded automatic

acceptance as to either its credibility or to its probative weight. The reasoning

1
contained in City of Keller v. Wilson is key to analyzing and weighing the evidence

as to both legal and factual sufficiency. City of Keller v. Wilson, 168 S.W.3d 802,

811-12, 820 (Tex. 2005). Drawing from City of Keller, Frank contends the following

standards apply to this case:

• The traditional rule for a no-evidence review has never been that
appellate courts must reject contrary evidence, noting that in some
circumstances contrary evidence renders supporting evidence
incompetent. Id. at 810.

• Evidence cannot be taken out of context in a way that makes it seem to
support a verdict when in fact it never did. Id. at 812.

• When circumstances are equally consistent with either of two facts,
neither fact may be inferred; in such a case each piece of circumstantial
evidence must be viewed, not in isolation, but in light of all the known
circumstances. Id. at 813-14.

• When circumstantial evidence of a vital fact is meager, a reviewing
court must consider not just favorable evidence but all competing
inferences as well. Id. at 814.

• Decisions by the jury (fact-finder) regarding credibility must be
reasonable; jurors (fact-finder) are not free to believe testimony that is
conclusively negated by undisputed facts. Id. at 820.

In this Reply, Frank reiterates his challenges: (1) there is no objective evidence

to show that Frank entered into an agreement to remarry Cynthia following their

March 29, 2001 divorce; and (2) the preponderance of the evidence refutes Cynthia’s

contention that they lived together in Texas and throughout the world, at all times

2
possible, from 2001 through 2012. 1

As to the third element of “ . . . there represented to others that they were

married,” Frank has not disputed his introductions of Cynthia as “wife.” However,

Frank has explained the context of his “wife” references. Frank has insisted he was

not married to Cynthia after 2001, but as a gentleman, he did not choose to embarrass

Cynthia, he wanted to avoid bad feelings, and he took pride in her companionship as

a beautiful and intelligent woman. [Appellant’s Brief, pp. 29-32] In addition to the

“wife” introductions, Frank also believed it necessary to make the extraordinary

financial expenditures during the post-divorce years in order to retain her

companionship. As it turned out, he was right. Cynthia admitted she would probably

not have filed this lawsuit but for the fact that the money stopped coming. [RR 5:49]

The trial court’s ruling of common law marriage must be reversed because two

of the requisite elements are lacking evidentiary support.

B. Summary of Direct and Circumstantial Evidence “For” and
“Against” Common Law Marriage.

In addition to the facts, argument, and authorities presented in

Appellant’s Brief [pp. 1 - 33], Frank presents the following evidence and argument

1
Cynthia’s reliance on representations outside the state of Texas and her allegations
of living together in California and throughout the world are irrelevant. The statute requires the
elements to be met in Texas. See TEX.FAM.CODE §2.401(a)(2)(including “. . . they lived together
in this state as husband and wife and there [Texas] represented to others that they were
married.”).

3
as supplement to his prior brief.

1. Analysis of Cynthia’s Claim of “Agreement to be Married” as
Contrasted with Frank’s Evidence Showing “No Agreement.”

Texas law on “agreed to be married” is well-settled. Cynthia had the

burden to prove that she and Frank agreed to create a present, immediate, and

permanent marriage relationship in Texas , and the agreement had to be specific and

made by both sides. See, e.g., In the Interest of C.M.V., —S.W.3d—, 2015 WL

2265388, * 6 (Tex.App.–El Paso 2015, no pet. h.); Burden v. Burden, 420 S.W.3d

305, 308 (Tex.App.–Texarkana 2013, no pet.); Small v.McMaster, 352 S.W.3d 280,

283 (Tex.App.–Houston [14th Dist.] 2011, pet. denied); Winfield v. Renfro, 621

S.W.32d 640, 645 (Tex.App.–Houston [1st Dist.] 1991, writ denied); see also Lewis

v. Anderson, 173 S.W.3d 556, 560 (Tex.App.–Dallas 2005, pet. denied); see also

Tompkins v. State, 774 S.W.2d 195, 208 (Tex.Crim.App. 1987); Gary v. Gary, 490

S.W.2d 929, 932 (Tex.Civ.App.–Tyler 1973, writ ref’d n.r.e.).

a. Cynthia’s Meager Evidence Supporting ‘Agreement’
Does Not Rise Above a Bare Scintilla.

At trial and in her pleadings, Cynthia did not rely on

circumstantial evidence to support a tacit agreement. She presented direct evidence

of an express agreement to be married. When a party such as Cynthia offers direct

evidence, her testimony should not be viewed in isolation. It should be tested in the

4
context of her other testimony and documentary, objective evidence on informal

marriage. When direct evidence is offered by the marriage proponent, and it is found

to be uncorroborated, unbolstered, and contradicted by the proponent herself, it would

be improper to rely only on circumstantial evidence to find a tacit agreement. See

generally Russell v. Russell, 865 S.W.2d at 932 (when direct evidence is not offered,

the fact-finder may look to circumstantial evidence); see also Thomas v. Sun Life

Assurance Co. of Canada, 2010 WL 2991116, *3 (S.D. Tex. 2010)(in cases where

agreement was found over the denial of the non-proponent, there was objective

evidence which showed the non-proponent’s agreement, such as jointly filed tax

returns, signing legal documents as a married person, owning joint bank accounts,

joint ownership of property as husband and wife).

Cynthia testified that she and Frank continued to share each other’s lives

after the March 29, 2001 divorce, just as before. [RR 2: 349-50] She testified they

had a routine as husband and wife that did not change after March 29:

I understand that we were married and then we were divorced and
that the common-law marriage began as soon as the divorce was
final. [RR 3: 14]

As to the vital element of “agreed to be married,” the court’s question

to Cynthia elicited only a cursory response.

5
 THE COURT: “You’re sitting here in court today telling me that you and
Frank, despite your divorce, agreed to continue your
marriage. I think I heard you say that.”
MRS. SINATRA: “Yes, that’s what I’m saying.” [RR 3: 86-7]

The court’s question and Cynthia’s response do not show the requisite

intent to create an immediate and permanent marriage relationship in the state of

Texas. Because Cynthia’s evidence in support of the vital fact of an agreement to be

married failed to meet the standards set out in the case authorities referenced above,

and she did not any present objective evidence as described in Thomas v. Sun Life

Assurance, the reviewing court should consider all the evidence, including contrary

evidence. City of Keller v. Wilson, 168 S.W.3d at 814.

b. Preponderance of Evidence Offered by Both Cynthia and
Frank is Contrary to Any Agreement to Be Married.

Frank flatly denied that he and Cynthia ever agreed to be

remarried following their March 29, 2001 divorce. [RR 3: 97, 108] 2

Cynthia offered direct testimony and made pleading allegations

which presented contradictory dates and stories concerning when the parties were

informally married, i.e., when she and Frank allegedly agreed to be remarried. (May

2001 [CR 10]; February 7, 2000 [CR 21]; April 29, 2001 [CR 42]; March 29, 2001

2
In briefing, Cynthia claims that Frank tried to retract his statement of agreement.
[Appellee’s Brief, p. 36] Frank did not ever make any statement of agreement that would be
subject to retraction. Frank did explain the context and reasoning of his references to Cynthia as
“wife,” which likewise, were not retractions.

6
[CR 84]; March 30, 2001 [RR 3: 14]; April 2002 [RR 3: 15]).3 The variety of dates

contained in the pleading allegations violated Texas’ rules of pleading and practice

which require that signatures on pleadings constitute certification of evidentiary

support for factual assertions and claims. See generally TEX.R.CIV.P. 13;

TEX.CIV.PRAC.& REM.CODE, Chapter 10. Despite the prohibitions against groundless

pleading allegations contained in Tex.R.Civ.P. 13 and Section 10, Tex.Civ.Prac.&

Rem. Code, Cynthia, pro se, or subsequent attorneys acting at her behest, signed and

filed pleadings which could not all be true.

Because Cynthia’s differing dates for the “agreement” were internally

inconsistent, the trial court could and should have found that Cynthia simply changed

the dates to accommodate the scenario she was trying to create. Even though she had

been the petitioner, Cynthia told the judge that she couldn’t really remember the

circumstances in 2001 as to why they got a divorce, concluding: “Perhaps – I don’t

remember.” [RR 3: 88] Cynthia’s evidence has the legal effect of “no evidence” on

the element of ‘agreed to be married.’ See Lozano v. Lozano, 52 S.W.3d 141, 148

(Tex. 2001)(applying the equal inference rule which is a species of the no evidence

rule, and emphasizing that when circumstantial evidence is so slight that any

3
The plain language of the statute requires the agreement to occur first in time and
then living together in Texas as husband and wife after the agreement. TEX.FAM.CODE § 2.401;
see also Farrell v. Farrell, 459 S.W.3d 114, 117 (Tex.App.–El Paso 2015, no pet.).

7
plausible inference is purely a guess, it is “no evidence.”); see also Mills v. Mest, 94

S.W.3d 72, 75-76 (Tex.App.–Houston [14th Dist.] 2002, pet. denied).4

Following their 2001 divorce, Frank contends that even though he

and Cynthia engaged in periods of intimacy and friendship, the documentary evidence

and the parties’ conduct established that no agreement ever occurred and no marriage

existed. For example, at trial Cynthia offered letters which defeat her claim of a post-

divorce, informal marriage. There is no instance in any of the faxed letters between

Cynthia and Frank where the parties mention remarriage, or any agreement to be

remarried, or any discussion of a then-existent marriage. [ RR 8: PX 29 - PX 34; RR

24: RX-36, RX-38] Instead, Cynthia refers to “our relationship” and never refers to

“our marriage.” When the relationship was in trouble, Cynthia writes of “going our

own way,” or “go on with your life,” which showed Cynthia’s understanding of their

relationship which could be ended by either party. See Burden v. Burden, 420 S.W.3d

at 308; Winfield v. Renfro, 821 S.W.2d at 645. 5 Reading through the sampling of

4
The trial court was also unwilling to commit to a date when the parties agreed to
be married. Frank specifically requested the court to amend its findings to state when each
element of informal marriage occurred and the date upon which all 3 elements concurred. [CR
229 at No. 11]
5
For example, Cynthia set forth detailed requests for money and concluded: “I
know that your life has moved on, and I will always care about you and love you. Perhaps after I
get a job, we can communicate like in old days as friends.” [RR 8: PX 30] In an October 1, 2009,
letter which presented an astonishing juxtaposition of monetary requests, scoldings, and
complaints interspersed with love-language, Cynthia herself acknowledged the deteriorating
relationship but made no marital allegations. For example: “I wanted to be able to share my life

8
letters offered by Cynthia reveals the relationship was about Cynthia’s requests for

more money, Frank running out of money, and Frank left with no assurance that he

could enjoy Cynthia’s companionship. [RR 8: PX 27, PX 28, PX 30, PX 31, PX 33,

PX 34 (“Thank you for telling me just where I stand in your estimation for your life,

and also the one thing I seem to be good for. $” )]

Even when Frank told Cynthia about his relationship with Leslie

and the 2004 birth of their daughter, Josie, Cynthia’s own testimony shows that her

reaction was not that of an aggrieved wife, but rather, she focused on the money that

Frank was spending on Leslie and Josie. Cynthia complained: “He bought someone

else a house and started giving her support instead of me.” [RR 3: 28-29] Cynthia

admitted that she had known about Josie’s birth soon afterward, but in the beginning

she did not know how much money he was providing to Leslie and Josie. [RR 3: 28-

29]

The Cynthia-Frank letters show a relationship which deteriorated due

to Frank’s inability to fund Cynthia’s lifestyle, but the letters do not evidence a

second marriage. In fact, Frank wrote “when we were married . . .” in a September 29,

2009 letter, and Cynthia did not dispute his past-tense reference in her answering

with my Francis, but life has moved on. My Francis has a life that he is comfortable in, and I am
not a part of it.” [RR 8: PX 32]

9
letter of October 1, 2009. [See Cynthia’s trial exhibits, RR 8: PX 29, PX 30, PX 31,

PX 32, PX 33, PX 34] In our case, Cynthia’s own proffered documentary evidence

shows they had a relationship which could be ended at any time by either party, with

that result contemplated by Cynthia herself when she wrote of ‘life moving on.’

Cynthia presented additional documents which underscored the fact that

Cynthia herself was aware that no agreement for a second marriage had ever been

made. For example, as the recipient of massive transfers of funds during the post-

divorce years, Cynthia was concerned over her tax liability, and her trial exhibits

show the efforts she made to assure herself that Frank had paid gift taxes arising due

to his monetary transfers to her.6 [See records from Cynthia’s CPA, Phil Stephenson,

at RR 23: PX 28, pdf 175, 183, 190-195]

At trial, both testifying experts (Gerhardt for Cynthia and O’Connor for

Frank) testified that there is no tax impact on transfers between spouses, and

therefore, there would have been no tax impact on the money transfers if Cynthia and

6
Even though Cynthia is a licensed Texas attorney, a member of the Wharton Bar
Association and up to date on her CLE, she tried to portray herself as lacking legal skills and
without any knowledge of ordinary business, tax, and legal matters at various times during trial.
[See, e.g., RR 2: 347; RR 3: 18-21, 72-77] However, her portrayals are belied by her testimony
and documentary evidence (letters to Frank) in which she writes of expecting payment on a
family law case that had concluded, her work arising from court appointments, her application to
teach at South Texas College of Law, her work in the Hague during the preceding 15 years, her
description of her employment as a “Fee Attorney for United Nations” on her application for the
Kelving Way loan, and her comparisons of California and Texas taxes. [RR 22: RX 20; RR 8:
PX 32; RR 3: 44, 55; RR 5: 12, 64, 65-66]

10
Frank had been married. [RR 2: 276; RR 4: 113-14] Thus, had there been an

agreement to be married and an informal marriage, neither Cynthia nor her CPA

would have been concerned about taxes because she and her CPA would have known

there would be no tax consequences for Cynthia’s receipt of money from Frank. [RR

23: PX 28 at pdf 175, 183, 190-195]

Also, had there truly been any agreement to be married, Cynthia would

not have consented to or signed off as “head of household” on her federal income tax

returns, as “unmarried” on her loan application, and as “single” on the deed to her

home. The loan application for Cynthia’s Kelving Way home was signed by Cynthia,

alone, as “unmarried.” In executing the document, Cynthia acknowledged that her

“unmarried” representation was true and correct, and that “any intentional or

negligent misrepresentations of this information contained in this application may

result in civil liability, including monetary damages . . . and/or criminal penalties,

including but not limited to fines or imprisonment.” [RR 22: RX 20, p. 1, 3] Cynthia’s

forthright assertions of marital status in a document that carried with it the

consequence of liability for false statements is highly probative evidence that Cynthia

knew there was no marriage and that she and Frank had not agreed to remarry. See,

e.g., Russell v. Russell, 865 S.W.2d at 932 (where the Court discussed assertions as

to marital status in the context of potential liability).

11
 Likewise, Frank’s federal tax returns showed his marital status as

“single,” and on the gift tax schedules he listed Cynthia, the recipient, as “ex-spouse.”

[RR 22: RX-11 through RX-19; RR 22: RX-1 through RX-8] The Francis W. Sinatra

Trust (Dated June 15, 1998) Restated September 20, 2005, states that Frank, the

settlor, is not married. The section providing for distributions at time of his death

lists Cynthia as “my former wife.” [RX-45, p. 5 ¶ 1.3, p. 11 ¶ 5.3(a)(1)] Where both

Cynthia and Frank made “single” and/or “unmarried” representations of marital

status in federal tax returns, a trust document, and loan application, the objective

evidence shows that both parties clearly knew and understood that they had not

agreed to remarry and were no longer married.

In those cases where courts found sufficient evidence of an agreement

to be married, there was also objective evidence to support the finding of agreement,

such as jointly filed federal tax returns, signing off on legal documents as married,

and referring to an existing state of marriage. See, e.g., Lewis v. Anderson, 173

S.W.3d 556, 559 (Tex. App.–Dallas 2005, pet. denied); Hart v. Webster, 2006 WL

1707975, * 3 (Tex.App.–Austin 2006, no pet.). In our case there is no objective

evidence to support a finding of agreement, and all objective evidence is contrary to

any agreement.

As the fact-finder, the trial court was charged with the duty to make

12
reasonable decisions regarding the credibility of the party witnesses. The trial court

was not free to disregard the evidence that was contrary to informal marriage, where

both parties had declared their marital status as single. Under the authority of City

of Keller v. Wilson, the court’s unreasonable credibility and evidentiary

determinations are not immune from review and should be reversed. See generally

City of Keller v. Wilson, 168 S.W.3d at 810, 812, 813-14, 820.

2. Analysis of Cynthia’s Claim of “Living Together in Texas as
Husband and Wife” Contrasted with Cynthia’s and Frank’s
Evidence Showing Frank has Always Lived in California

The relevant time period for the purpose of reviewing the trial court’s

order of common law marriage is between the March 29, 2001 divorce and April 27,

2002. (The trial court ruled that the parties “. . . entered into an informal marriage on

April 27, 2002.” [CR 208-09])

a. Preponderance of Evidence Offered by Both Cynthia and
Frank is Contrary to Court’s Ruling 7

Frank testified he has lived in California all his life. [RR 3: 93]

Cynthia admitted that Frank has always lived in California, and specified: “Mr.

Sinatra has never lived outside of 90210.” [RR 3: 54-55] At the risk of belaboring

the obvious, Frank again contends he could not have created a permanent and

7
In addition to the supplemental argument contained in this Reply, Frank refers the
court to his Appellant’s Brief, pp. 25-29.

13
immediate marriage relationship in the State of Texas and lived in Texas as Cynthia’s

husband when he always lived in California.

Frank left Texas after the March 29, 2001 divorce hearing, and he

did not visit Cynthia in Texas until eight months later, when he traveled to Wharton

for the Christmas holiday in December 2001. [RR 2: 328; RR 3: 15-16] In briefing,

Cynthia incorrectly claims that after the divorce, Frank, Cynthia and her daughters

remained together in California until they all returned together to Wharton in

September 2001. (Appellee’s Brief, p. 8) In fact, Cynthia herself testified that she

stayed at Frank’s home during the spring so her daughters could finish the school

year; she went to the Hague in the summer of 2001; and the girls went to summer

camp. [RR 3: 314, 317; see also RR 8: RX-1 at App. 1, p. 9]

In addition to Frank’s Christmas visit with the family, Cynthia also

testified to two other visits that occurred prior to April 27, 2002. [RR 2: 329-30, with

Cynthia’s testimony incorporating ‘visit’ language, and not ‘coming back home.’]

These three visits during the year from March 29, 2001 - April 27, 2002 should not

be viewed as “living together in Texas as husband and wife” and establishing a

permanent marital relationship in Texas where at all times Frank was living in

California, and Cynthia admitted that vital fact.

There is no dispute that the parties’ sexual relationship continued

14
after divorce. The dispute is whether the fact of “sharing a bed” during three visits to

Texas can support a finding of “living together in Texas as husband and wife.”

Cynthia’s argument and the court’s ruling illustrate the problem presented by non-

marital sexual relationships in modern society. The fact that a man and woman

engage in a sexual relationship should not mean that they lived together as husband

and wife. The Texas Supreme Court has noted the difficulty presented by non-marital

cohabitation in the context of reviewing evidence for tacit agreements, and the

reasoning should be equally applicable to this case where the court found “living

together as husband and wife” based on a non-marital sexual relationship. See Russell

v. Russell, 865 S.W.2d at 932 (changes in modern society and non-marital

cohabitation called for more careful weighing and analysis of evidence); see also

Thomas v. Sun Life Assurance Co., 2010 WL 2991116 at * 3.

b. Additional rebuttal on Cynthia’s claims of living together

Frank specifically disputes Cynthia’s claim that his post-divorce

financial support was additional evidence of informal marriage. (Appellee’s Brief,

p. 40) In fact, Cynthia testified that Frank had provided her with financial support

since 1992, six years prior to their marriage. [RR 2: 321, 339; RR 3: 37-38]

Following the 2001 divorce, Frank paid Cynthia lump sums and monthly spousal

payments, per the decree. [RR 8: PX-1, p. 2 ¶ 8, App. 1 at p. 8, ¶ 6.2 (A. and B.)]

15
After that he continued to meet her demands for money, until such time as he could

not. (See Appellant’s Brief, pp. 6-10; RR 25: RX-52) Frank’s financial support was

not evidence of an informal marriage, but it was the constant factor from 1992

forward in his keeping company with Cynthia, where Frank had been paying Cynthia

before marriage, during marriage, and after marriage.

In briefing, Cynthia would have the Court believe that she and

Frank were in constant communication and lived together as husband and wife at all

times permitted by schedules, whether in Texas or California and when traveling.

(Appellee’s Brief, pp. 10, 16, 31, 39) However, Cynthia herself presented evidence

that is contrary to her marriage claim and the court’s ruling, for example:

• PX-29 in which Cynthia acknowledged she was not traveling with
Frank; she was disappointed in the relationship; she was excluded
from important moments in his life;

• PX-30 in which Cynthia wrote to Frank with requests for money,
and acknowledged his life had moved on;

• PX-32 in which Cynthia acknowledged that they had not spoken
in over a month; Leslie and Josie are a giant part of Frank’s life;
he pays for them to live across the hill from him; he jumps to
assist them; life has moved on; asking Frank to let her move into
his home in California;

• RR 5: 51-2 where Cynthia testified that Frank didn’t spend as
much time with her; he spent time with Leslie and Josie; he
wanted to raise Josie;

16
 • RX-38 in which Cynthia acknowledged that it would be ‘some
little time’ before he would want to see her; she invited him to
come for a visit when it was convenient;

• RX-36 in which Cynthia wrote Frank, telling him to go on with
his life, live his life, enjoy his money and his home, she would be
moved by May 1, signing off Not your weapons any more.

Contrary to Cynthia’s assertion that the “marriage” was marked by

constant togetherness and communication, Cynthia’s letters to Frank and her

testimony established the following facts: Frank’s life was focused on Leslie and

Josie in California; Frank wanted to raise Josie in California; Frank was paying for

a home across the hill so that Leslie and Josie could be near his home; Cynthia was

not living with Frank but made requests for Frank to visit her in Texas and to allow

her to move in with him in California; Cynthia admitted she was not included in

important moments in Frank’s life; they did not see each or speak with each other for

extended periods of time; Cynthia admitted that ‘life was moving on.’ Cynthia’s

claim that she and Frank entered into an informal marriage in 2001 is defeated by her

own evidence as well as evidence presented by Frank.

II. Reply and Additional Argument on Issue Two and Issue Three
[Relating to Court’s Ruling on Frank’s Hensal Road home and $500,000
equalization judgment]

Because Frank believes that no informal marriage ever existed, he continues

to maintain that no community estate could have been accumulated which would be

17
subject to division. Nonetheless, Frank offers the following short supplement and

rebuttal on the Hensal Road arguments presented in Cynthia’s brief.

A. Frank met his burden of proof to show that the Hensal Road home
was his separate property.

The trial court awarded Cynthia an undivided 50% community interest

in the Hensal Road home. [CR 196] However, Frank has contended the evidence

shows the home was purchased by the Francis W. Sinatra Trust and was paid for with

separate property funds that had been deposited into the trust’s bank account.8

• Frank inherited separate property assets from his father, Frank Sr. Frank
Sinatra Sr.’s estate included the Somerset Trust. Entities called Bristol, Essex,
and Sheffield were part of the Somerset trust. These entities held reprised
masters, movies, the Capitol Records catalog, intellectual properties in name
and likeness. [RR 5: 92-3, 97-8] The assets had been earned by Frank Sinatra
Sr. and the Somerset Trust had been set up by him to provide for his heirs upon
his death. The owners of Bristol, Essex, and Sheffield were Frank, his two
sisters, three then-living grandchildren, and two business associates.

• Tracing Bristol, Essex, and Sheffield assets into new entities. In 2007, the
Bristol, Essex, and Sheffield entities were folded over into an entity called FSE
Holdco. [RR 5: 103; RX-49; RX-50] FSE Holdco then contributed a portion
of its assets (all of the masters, likenesses, and TV shows) into another new
entity named Frank Sinatra Enterprises (referred to as FSE). [RR 5: 97-99; RX-
43; RX-49, RX-50] The owners of these two new entities (FSE Holdco and
Frank Sinatra Enterprises) remain as they had been under Bristol, Essex, and
Sheffield. [RR 5: 100-103]

8
There is no dispute that Frank’s trust was created in 1998, following his father’s
death and prior to his ceremonial marriage to Cynthia. [RR 24: RX-45]

18
• The “Holdco Transaction.” As part of the creation of the new FSE Holdco
entity and the Frank Sinatra Enterprises (FSE) entity, 50% of the assets held
by Frank Sinatra Enterprises (FSE) were sold to Warner Music. 9 The closing
date on the asset sale was November 19, 2007. Frank’s share of the proceeds
was reported on his 2007 tax return as $12,367,795. [RR 22 at RX-15, p. 1; RR
5: 103]

• Frank’s share of the proceeds was deposited into his Frank W. Sinatra Trust
bank account. Frank realized proceeds from the asset sale in the amount of
$10.1 million. That amount went directly into his trust’s bank account on
November 19, 2007. [RR 5: 103, 112-13; RR 6: 32-33]

• Purchase of Hensal Road property. One month later, on December 21, 2007,
the Francis W. Sinatra Trust closed on the purchase of 9706 Hensal Road. The
home cost $4.1 million and all funds came from the trust’s bank account,
which was the same bank account that had received the November 19, 2007
deposit of Frank’s share of proceeds from the asset sale to Warner Music. [RR
5: 102-103, 112-13; RR 27: RX-77] The closing statement identified the buyer
as the Francis W. Sinatra Trust, dated June 15, 1998, and the Grant Deed lists
the grantee as Francis Wayne Sinatra, Trustee of the Francis W. Sinatra Trust,
dated June 15, 1998. [RR 24: RX-41, RX-43; RR 27: RX-77]

Frank’s evidence on the inception of his right to the separate property assets

and tracing those assets through mutations and exchanges met Texas’ standards for

proving his separate property claims by clear and convincing evidence. See, e.g.,

Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex.App.–Fort Worth 2004, no pet.); Zagorski

v. Zagorski, 116 S.W.3d 309, 316 (Tex.App.–Houston [14th Dist.] 2003, pet. denied).

At the time of the November 19, 2007 Holdco Transactions and the December

9
The contribution agreements and operating agreements were produced to Cynthia
and were admitted as exhibits at trial. [See RX-48, 49, 50, 69, 70, 71, 79]

19
21, 2007 purchase of the home on Hensal Road, the bank account that had received

the proceeds from the asset sale to Warner Music and then paid for the Hensal Road

home did not have any funds that could be deemed community property. There could

have been no commingling when all monies that could have been community

property had been paid to Cynthia. Working from Frank’s tax returns, Randal

O’Connor prepared Exhibit 52, a summary of all income which would be considered

community if the parties had been married. (Capital gain was excluded as separate

property.) [RR 5: 102, 105-108] In the column for the year 2007, the summary shows

that Frank had transferred all “community” income to Cynthia; the community

column reflected a negative, and Frank was paying Cynthia out of his separate

property. [RR: 25: RX-52]

Although the trial court seemed to find that Frank’s separate property

became community property when it was deposited into his trust’s bank account, our

law does not require that result when the exact amount of separate property funds can

be traced into, and then out of, a bank account. See Welder v. Welder, 794 S.W.2d

420, 425 (Tex.App.–Corpus Christi 1990, no writ); Zagorski v. Zagorski, 116 S.W.3d

at 319, 20; In the Matter of the Marriage of Tandy, 532 S.W.2d 714, 717

(Tex.Civ.App.–Amarillo 1976 , no writ).

In addition to the exhibits cited above, Frank relied on the testimony of

20
Randal O’Connor, CPA, whose firm has handled Frank’s and the family’s financial

affairs for many years. O’Connor also handles payment of taxes and pays bills for

Frank. Frank does not have a personal bank account, and O’Connor writes all checks

and manages two bank accounts for Frank.10 In his role of financial manager and

overseer of Frank’s affairs, O’Connor participated in the Holdco and subsequent

Hensal Road transactions. [RR 2: 272-73; 294-95; RR 5: 95-97, 117] Even without

the wire transfers, O’Connor presented competent evidence on deposits and

expenditures from the trust’s bank account. See Moroch v. Collins, 174 S.W.3d 849,

863 (Tex.App.–Dallas 2005, pet. denied); Zagorski v. Zagorski, 116 S.W.3d 309, 317

(Tex.App.–Houston [14th Dist.] 2004, pet. denied].

B. The court abused its discretion when it allowed Cynthia to
withdraw her stipulation that the Francis W. Sinatra Trust was
separate property because the stipulation was binding and
conclusive as to the fact conceded and Cynthia was estopped from
claiming to the contrary.

At the close of evidence and after O’Connor had left for California,

Cynthia withdrew her stipulation that all items listed at lines 78 - 102 were Frank’s

separate property. She requested the court to allow her to withdraw her stipulation

on line 85 which itemized the Francis W. Sinatra Trust. [Cynthia’s inventory, PX-

10
Frank does not have access to a personal bank account. He has cash that Randy
sends him weekly. He has credit cards. [RR 6: 19] The summaries of the flow through entity
Anomaly were in evidence. [RR 25: RX-53 to 54]

21
100; RR 6: 39-41] Cynthia’s counsel also attempted to except lines 78 and 80 from

the stipulation on separate property. Cynthia further argued that Frank had failed to

prove the separate nature of the trust deposits into the account which were then

commingled.11 Frank objected to Cynthia’s request as reopening evidence and also

noted that the case had been tried under the stipulation and O’Connor was no longer

present. [RR 6: 40; see also RR 5: 134] In Gulf Coast Construction Co. v. Self, 676

S.W.2d 624, 631 (Tex.App.–Corpus Christi 1984, writ ref’d n.r.e.), the appellants in

that case argued that the appellees had failed to prove up a basic portion of their

proof. This Court overruled the point, explaining that the appellants were ignoring

the stipulations agreed upon by the parties. Id. Likewise, Cynthia and the trial court

totally ignored the stipulations in this case.

In the course of argument, the trial court offered its conclusion that

“Somerset, Bristol and some of the others retain their separate character because they

all went into FSE Holdco. I don’t recall hearing any testimony that any of those

11
In briefing, Cynthia incorrectly states that O’Connor admitted he could not trace
the funds from the trust to the house. (Appellee’s Brief, p. 54] O’Connor testified at length about
the transaction, including the deposit into the account and purchase payments out of the account.
(Cites and argument at pp. 18-21, supra.) On cross-examination, O’Connor reiterated the
payments from the trust. [RR 5: 130-31] Cynthia also incorrectly alleges that O’Connor conceded
$129,000 had been paid by Frank individually. (Appellee’s Brief, p. 56) In fact, O’Connor stated
it was the trust and had previously testified that Frank did not have a personal checking account.
As to an itemized tracing for the entire account, O’Connor testified he could do it, it would take
time, and he could give no testimony on that day. [RR 5: 132] The exercise would have been
expensive, and unnecessary under the trial stipulation as well as previous stipulations.

22
wound up in the trust.”12 [RR 6: 42] The issue narrowed to whether the trial court

would allow Cynthia to withdraw her stipulation as to the entire Francis W. Sinatra

Trust, which owned Hensal Road, or whether the court would limit the withdrawal

to the monies that went in and out of the trust’s bank account. When it became clear

that the court would allow Cynthia to withdraw her stipulation as to all of the Francis

W. Sinatra Trust, Frank sought to limit the extent of the withdrawal by accepting the

description of “bank account” and “monies that have come in and out.” [RR 6: 40-44]

Counsel’s statement that the limitation to the bank account was ‘perfect, ’ should not

be viewed as waiver of objection where counsel was arguing against the even more

onerous alternative as to the entire trust and its assets.

In fact, the court allowed Cynthia to withdraw her stipulation as to the

entirety of the Francis W. Sinatra Trust which owned Hensal Road. The decision

violated well-settled law on the conclusive effect of stipulations as to the matters

conceded. See Bomar Oil and Gas, Inc. v. Loyd, 381 S.W.3d 689, 693 (Tex.

App.–Amarillo 2012, pet. denied)(stipulation serves as proof on an issue that

otherwise would be tried and parties are thereafter estopped from claiming to the

contrary). Although Cynthia argues that Frank did not meet his burden of proof as

12
As noted above in ¶ II. A., Randal O’Connor testified to the sale of the assets that
the court had acknowledged were separate property and the proceeds from the sale were
deposited into the Francis W. Sinatra Trust bank account.

23
to the Hensal Road home which was owned by Frank’s trust, her stipulation had

conceded the separate characterization of the trust. When Cynthia was incorrectly

allowed to withdraw her stipulation, the trial court proceeded to award Cynthia ½ of

Hensal Road property. The trial court abused its discretion where its ruling was

clearly prejudicial and deviated from guiding rules and principles governing the

binding nature of stipulations.

C. Frank disputes Cynthia’s arguments regarding the state of
discovery, Charles Gerhardt’s testimony and the inventory
prepared by him.

Cynthia’s complaints that Frank did not produce documents that she

needed and that violated rules of discovery are without merit. Frank’s approach to

the discovery process had been open and transparent, as illustrated by letters and

emails sent by Frank’s counsel to Cynthia’s counsel and expert witness, Charles

Gerhardt, to wit:

• On the same day that Cynthia designated her expert witness, March 5, 2014,
Frank’s counsel wrote to Cynthia’s counsel with the suggestion for a
conference call with the attorneys, Gerhardt and O’Connor, and with the
additional suggestion that Gerhardt communicate directly with O’Connor to
expedite the process. [RR 9: PX-A, attached hereto] Gerhardt emailed that he
would contact O’Connor. [PX-B] Gerhardt never contacted O’Connor. [RR 4:
95-6; RR 5: 88]

• Gerhardt received a thumb drive from Frank’s counsel which contained 3,000
documents; he also received Frank’s tax returns for the years 2003 through
2012. [RR 4: 43]

24
• On April 22, 2014, Gerhardt received a copy of Frank’s preliminary inventory
with its notations on proof of the various entities and identification of Bates-
stamped documentation, together with another invitation to discuss any
questions with Frank’s counsel or paralegal. [PX-C] A comparison of the
preliminary inventory with Frank’s trial inventory [RR 26: RX-72]shows
revisions only to the lowered amount of mortgage, Frank no longer owned the
Lexus automobile, and Frank listed the promissory note to his sister.

• On May 29, 2014, Frank provided Gerhardt with a copy of the summary
showing income that could be deemed community under marriage and monies
paid to Cynthia which had been prepared from Frank’s tax returns. [PX-D]

In addition to tax returns, Frank also produced all contribution agreements,

operating agreements, trust and partnership agreements, settlement statements, and

real property documents, which are contained in the record as trial exhibits.[RR 24:

RX-41 to 50; RR 25: RX-55 to 59; RR 26: RX-60 to 71; RR 27: RX-77 to 82]

In contrast, Cynthia did not produce an inventory until May 30, 2014, the

Friday before trial. While Frank had known the identity of Charles Gerhardt and had

offered to conference with him and answer any questions, no conference took place.

Frank never received any expert report from Gerhardt showing the subject matter, the

substance of his mental impressions and opinions, and the basis for them. Frank filed
13
a motion to strike the expert, which was denied. [CR 170-172; RR 4: 25, 28]

Frank made his objections at trial, all of which were overruled. [RR 4: 9, 26-7, 28, 37,

13
Cynthia’s counsel offered a continuance so that Gerhardt could be deposed, but as
a practical matter, Frank had been forced to borrow money from his sister to pay temporary
support and the “bleeding” on the case kept on. His counsel noted a continuance would punish
him. [RR 4: 15, 24]

25
52, 54, 60]

Frank was not provided with any calculations or methodology by which

Gerhardt arrived at nearly $2million which was allegedly owed to Cynthia. [RR 4: 17,

25-27] During Gerhardt’s testimony, it became apparent that many of his conclusions

on the character of property and the valuation to be placed on Cynthia’s claims

against a community estate were based on numerous erroneous assumptions,

projections, and mathematical mistakes. By way of example, and without listing all

of the errors, Frank points out the following:

• Gerhardt characterized FSE as separate property, but he characterized FSE
Holdco as community property, testifying it had been formed during the
marriage and he did not consider the entities that were folded into the new
holding companies. [PX-100, line 31; RR 4: 60, 118-19]

• He characterized FWS Realty Delaware, LLC as community property [PX-100,
line 32]. Cynthia’s counsel later corrected that mistake and admitted that FWS
Realty Delaware should be Dorchester and was Frank’s separate property. [RR
4: 121]

• Gerhardt itemized one community property claim against Frank’s separate
property based on losses which allegedly arose from Anomaly. [PX-100, line
118] He testified that Frank was losing money on his music business, that it
created a negative cash flow and concluded that his singing business was a
hobby. [RR 4: 63, 125]

• Gerhardt calculated the losses arising from Anomaly by taking a monthly cost
between $11,845 and $18,508/month and carried it out for 144 months of
marriage. [PX-100, lines 118-19] On cross-examination it was pointed out that
his 144 months projection was incorrect since Anomaly had not existed until
2005. [RR 4: 130-31]

26
• Gerhardt calculated that the community estate lost income when separate
property was moved into FSE in 2007. [PX-100, line 122] As part of Cynthia’s
claim he calculated the lost income as $127,469 for 6.5 years and arrived at a
total: $1,413,548. During cross-examination it was pointed out the
mathematics were incorrect; the total should have been listed as $838,548;
Gerhardt admitted the mistake but said it didn’t matter. [RR 4: 105]

• Gerhardt prepared PX-100A from tax returns and referred to it when analyzing
the 2007 Holdco transaction (described at ¶ II. A., supra). Gerhardt referred
to line 96, column H, which listed the 2007 capital gain of $12,408,035.
Gerhardt testified that none of the capital gain/cash was distributed except for
income taxes, further opining that the capital gain had been retained by
Holdco. [RR 4: 57] Of course, there is no evidence in the record to support
this theory, and Gerhardt failed to prepare a report explaining his mental
impressions, opinion, and the basis for this conclusion.

The trial court spoke to Frank’s counsel: “ . . . And it might be interesting for

you to know what I’m wondering about. . . . you really can’t tell where the cash is.”

[RR 4: 126-27] Then Gerhardt reiterated once again: “They make a cash distribution

for taxes only but they don’t distribute anything else.” [RR 4: 127]

Regardless of the baseless opinions, assumptions, and untrustworthy

calculations shown in Gerhardt’s inventory, the trial court elected to find Gerhardt a

credible witness. The court’s credibility determination is unreasonable and required

the court to disregard and ignore clear, positive, and direct evidence presented by

Frank, O’Connor, and as contained in the transactional documents, tax returns, and

summaries. A fact-finder is not free to believe testimony that is conclusively negated.

See City of Keller v. Wilson, 168 S.W.3d at 820, 827 (“While there is some dispute

27
whether Lady Justice should wear a blindfold, the metaphor was surely never

intended to suggest that justice disregards the facts.”) The court found that “Francis

Wayne Sinatra has possession and control of unspent cash and earnings paid to him

during the informal marriage and deposited in bank accounts in the name of the

Francis W. Sinatra not revealed or identified during the trial in the amount of at least

$1,000,000.” [CR 224-25, Finding No. 13] The court’s determination of Gerhardt’s

credibility was not reasonable, but nonetheless it led to the unsupported finding and

rendition of the erroneous money judgment for $500,000.

WHEREFORE, PREMISES CONSIDERED, Appellant FRANCIS W.

SINATRA respectfully requests the Honorable Court to sustain his issue on common

law marriage, and to thereafter issue its opinion and render judgment that Appellant

and Appellee did not enter into an informal marriage; therefore, there was no

community property to divide. In the event the Court finds a marriage existed,

Appellant requests the Court to sustain his remaining issues, confirm his separate

property, vacate the Final Decree of Divorce, and remand for entry of a decree in

conformity with the Honorable Court’s opinion. Appellant requests such other and

further relief to which he may be entitled, both at law and in equity, and for which he

will ever pray.

28
 Respectfully submitted,

JENKINS & KAMIN, L.L.P.
TWO GREENWAY PLAZA, STE. 600
HOUSTON, TX 77046
TEL: 713-600-5500
FAX: 713-600-5501
lstanton@jenkinskamin.com(non-service)
jenkinskaminservice@jenkinskamin.com
(e-service)

/s/ Lynn Kuriger Stanton
By:_____________________________
Lynn Kuriger Stanton
State Bar No. 11767600

LAW OFFICE OF WARREN COLE
3355 W. ALABAMA, STE. 825
HOUSTON, TX 77098
TEL: (713) 275-4444
FAX: (713) 400-9144
Email: warren@warcolelaw.com

/s/Warren Cole
By:_______________________________
Warren Cole
State Bar No. 04549500

ATTORNEYS FOR FRANCIS W. SINATRA

29
 CERTIFICATE OF COMPLIANCE

This brief complies with the form requirements, including word limits, as
contained in Rule 9.4, Texas Rules of Appellate Procedure. The brief was prepared
using Wordperfect X7. The Word Count function states that the brief contains 7,447
words, excluding the items which are not to be counted under Rule 9.4(i)(1).

/s/ Lynn Kuriger Stanton
________________________________
LYNN KURIGER STANTON

30
 CERTIFICATE OF SERVICE

I certify that a true copy of the above Appellant’s Reply Brief was served on
Robinson Ramsey and John Maher, who are appellate counsel and trial counsel for
Cynthia Sinatra, via e-filing, on July 20, 2015.

ROBINSON C. RAMSEY
LANGLEY & BANACK, INC.
Trinity Plaza II, Suite 900
745 E. Mulberry
San Antonio, Texas 78212
rramsey@langleybanack.com

JOHN C. MAHER, JR.
THE LAW OFFICE OF JOHN C. MAHER, JR.
212 E. Burleson Street
Wharton, Texas 77488
johncmaher@sbcglobal.net

/s/ Lynn Kuriger Stanton
_______________________________
LYNN KURIGER STANTON
Attorney for Francis Wayne Sinatra

31
The APPENDIX contains the following book-marked items:

A Cynthia - Frank Correspondence
[Petitioner’s Exhibits 29 - 32; Respondent’s Exhibits 36, 38]

B Correspondence relating to discovery
[Petitioner’s Exhibits A, B, C, D]

32
 33

1

2

3

4

5

6

7

8

9

10

11

12 Petitioner's Exhibit No. 29
Letter from Weapons to F. Sinatra
13

14

15

16

17

18

19

20

21

22

23

24

25
 CYNTHIA SINATRA
Attorney and COlU1selor at Law
2120 Welch Street ,I>.ETITIONER'S-
Houston, Texas 77019 EXHIBIT
(713) 225-8500
(713) 523-7887 FAX
cynthiasinatra@aol.com
SinaLTalaw.com

August 31, 2009

Deal' Francis,

I know that Jackson Hole is one of the most beautiful places on this earth. I have
been there many times and had hoped that you would include me in special
trips, such as this. I am glad that you enjoyed the trip and had the opportunity
to inhale the Grand Tetons with your friends.

Yes, I am disappointed in our relationship. I am excluded from the important
moments in your life. I was hoping that by now you would have realized that I
am an asset to you and your organization and not a liability.

Please note that for months, I have had no credit on my credit card. I checked
today. I have not used it. I have not other income, and you have promised that I
would have $2800 credit each month for prescriptions and food. Please assure
that by tomorrow, September 1, 2009, that I have the $2800 allotment. I am going
to pay my electricity, water, prescriptions and food with that amOW1t.

Thank you for promptly calling Matt and seeing tl1at tlus is taken care of.

Always,
f--
Weapons
 34

1

2

3

4

5

6

7

8

9

10

11

12 Petitioner's Exhibit No. 30
Letter from Weapons to F. Sinatra
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 ..

PETITIONER'S
CONFIDENTIAlL EXHIBIT

CYNTHIA SINATRA
Attorney and COLU1selor at Law
2120 Welch SlTeet
Houston, Texas 77019
(713) 225-8500
(713) 523-7887 FAX
cynthiasinatra@aol. com
Sinatralaw.com
September 13, 2009

FF and Company
By Fax: 310-258-1507

Dear Francis,

I have just read tlu'ough your memo to Matt, and I want you to know that I
appreciate your fight to continue to protect us from harm. I ~ cutting back as
much as I can, and I am feeling positive about a job coming up in the near future.

In subsection b) you state tllat we have use of the Exxon card up to $200. Is that
$200 per person? I know that all of three of our vehicles will not be able to be
fueled at such rationing. Is this a clerical mistaJ. THINGS TH E WAY THAT you WISHED THE1"fTO BE . I HAV!'.
BROKEN MY BACK SO MA NY TIMES TO KEEP nus ORD ER OF'THI NGS FOR YOU AND THF.
GllU.s IN EXACTlY THIS WAY.

BUr NOW THE TIME IS COME WHEN I CAN NO LON GER DO SUCH THINGS.
PROFESSlONALLY AS WELL AS FINANCIALY, I AM FIGHTING FOR MY VRRY LIFE.

\\lHEN WE WERE MARRlED, I PROVED MYSELf NOT TO 131.'. T Ii E HUSBAND YOU WANTED.
NOT BY A LONG SHOT. AND EVEN TODAY, IT HURTS ME TO THINK or HOW
INADEQUATE I WAS. I M.ADEMY MIND UP AfTER OUR MARlUAG£ FAILED THAT I WOULD
AT LE.AST BE STEADfAST AND COMPLETE IN ONE PROMISE I HAD MADE TO YOU. I
ALWAYS TOLD YOU THAT HOWEVER GREAT OR H UMBLE, I WOULD ALWAYS "SHARE MY
FORTUNE WITH YOU".
TJ-([S, I HA VE FAITHFULLY CARRIED OUT WITH OUT A FAILURE, OR A HESITA'nO N.
PROMISED TO TAKE CARE OFYOU AND THE GIRLS. 1 HAV E KJ':p'rMY PROMISE IN
SI'IARlNG WITH YOU, ALL OF MY RESOURCES.

BUT ONE THING J NEVER PROMISED YOU WAS .. ... EVERYfHl.NG". I~ I PRnMlT THI N GS TO
CONTINUE THE WAY ·tHEY HAVE BEEN FOR THE PAST 17 YEARS, THAT IS F.XACTI..Y WHA'j'
YOU \v/LL HAV /:l HNDED UP TAKING FROM ME ... EVERYrnINGI THIS IS WHY I HAVE
BEGGED YOU TO GO BACK TO WORK., SO THAT SOME OF TI-lR HEAT WID. BE REMOVED
PROM MY PICTURE BEFO RE I GO BROKE.

TTlEltE 1S NO REASON FOR ME TO DST AGAIN TI..m DFTAlJ.5 OF MY MASSIVE
CONTRlllUTIONS 1'0 BOTH YOU AND THE GIRLS THROUGH ALL or- THE YEARS, BECAUSE
YOU K..'JOW THEM SO WELL. I SENT A !..lST TO MRS.HENSLEY OF ALL THE
RESPONS lBIUTJES THAT I WILL CONTINUE TO ASSUME IN THE FUTURE. OBVlOUSLY SHE
SHO\VED 11' TO YOU, AND THEN YOU SEND A TEXT SCOLDlNG ME cOR SENDlNG n' TO
I·IF.R AND NOT TO YOU. YOU ARE THE ONE WI·IO I'IAD llR(JKEN OFF COMMUNICATION.
 --;
. SEP-29-2009 16:25 P.02/02

~.""'""
(' IN ONE INSTANCE, YOU PROMISE THAT YOU WILL GO BACK TO WORK IN ORDER TO HELP
TAKE THE BURDEN OFF ME. I RENT FOR YOU ONE OFFICE, AND THEN ANOTHER..
NEITHER ONE YOU USB FOR THE PRACICE OF LAW. IN ANOTHER INSTANCE, YOU
BECOME ANGRY Kf ME AND TELL ME TI-JAT IF I WASN'T SUPPORTING JOCIE,. I WOUlD
S141LLBEABLE TO PAY ALL OF YOUR BIllS AND THEUKE. MY SUPPORT OF YOU AND THE
GIRLS IN nIlS TIME PERIOD REMAINS NEARLY 310,000.000 PER MONTH. 1 DON'T
UNDERSTAND WHY YOU WIll. NOT ACCEPT TIllS AS A BASIS FOR YOUR fINANCIAL UFE,
AND PICK. UP THE REST OF THE COSTS BY WOR.I (21.75%), Essex
1,700,000.00 Production L.P. (33%) and Sheffield Enterprises, Inc. (27%)

PENSIONIRETIREMENTRRAS
Screen Actor's GuRd (SAG) Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement
American Federation of Television & Radio Artists (AFTRA) Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement
American Federation of Musicians (AFM) Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement

UFE INSURANCE

First Colony Life Insurance POIicv number 2153436 Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement
First Colony Life Insurance policy number 2350893 Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement
Union Central Life Insurance policy number 03041827 Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement
American Federation of Musicians Local 47 Policy Confirmed as FSWs SP - Page 21 of 24 of Post Marital Agreement

PERSONAL PROPERTY

Fumiture & Furnishings 400,000.00

MISCELLANEOUS
FWS000056 - signed 01-10-2005
Promissory Note $40,000 plus interest at 5% due and payable pon the sake of 3420 Old
Cynthia Sinatra to Frank Sinatra (01-10-2005) 40,000.00 Canney Road, Wharton, Texas n478.

TOTAL GROSS ESTATE 0.00 2,892,000.00 0.00
_..._._, ._ enrer as negauves)

Payables 0.00

TOTAL UABIUTIES 0.00
NET ESTATE 0.00 2,892,000.00 0.00

INVENTORY 412212014 Pago2
 54

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Email
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 Subject: RE : Sinatra

From: Warren Cole (warren@wa rco lelaw.com)

To: charlie@gerhardtcpa.com;

Cc: johncmaher@ sbcglobal.net;

Date: Thursday, May 29, 2014 8:23 AM

Charlie, Don't know if this will help but it is an updated to/from Cynthi a taken from all tax returns,

From: Charlie Gerhardt [mailto:charlie@gerhardtcpa,com]
Sent: Thursday, May 29, 20 14 7:56 AM
To: Warren Co le PETITIONER'S
Cc: John Maher EXHIBIT
Subject: Sinatra

Warren:
John and I are meeting Fri day.

Charl ie Gerhardt CPA

56 15 Kirby #640

Houston, Texas 77005

713-520-5592 - Office

713 -520-9968 - Fax

This correspondence is a part of my work product and can be subpoenaed. It is confidential and
intended only for my clients and/or designated Parties use. It is not to be considered "Tax Advice" or
to be used as "Tax Advoidance". If you received this in error, please notify me and delete copy.

https://us-mg205.mail.yahoo.comlneo/launch?partner=sbc&.rand=bv5bkknOhfme5 6/3/2014
 SUMMARY OF $$ TOIFOR BENEFIT OF CS
SCH.C CAP GIL FEDERAL STATE REMAINING
YEAR WAGES. ETC. INTEREST DIVIDENDS INCOME LOSSES PTRSHPS TAXES PAID TAXES PAID COM $$1
2003 1,906 10,448 285 128,247 (3000) 748387 147,563) (47,932) 437,284
2004 154 8,333 474 152,304 (3,000) 705,323 126,152) (41,304) 394524
2005 27,489 23,905 38,322 1359,617 1,364,359 1,224,181 505,134) (219,377) 229,769
2006 4,995 46,534 4,885 159,723 (3,000) 1,101,857 259,377) (84,413) 654,758
2007 7,307 22,436 24,725 (44,566 12,367,795 30,338 (1,848,998) (1,149,552) (2,958,3101
2008 6,455 55,426 22,664 249,138 1,202 1,182,353 259,864) (77,889) 680,007
2009 9,017 18,649 1,602 102,050) (200) 486,472 (93,407) (23,345) 296,938
2010 18,949 438 324 121,509 1,303 543,044 198,447) (51,724) 434,093
2011 17,098 903 134 114,447 (289) 445,864 167,956) (47,446) 363,044
2012 4,364 14,092 4,809 124,671 5,550 479,813 180,503) (62,981 ) 384,265
2013 4,288 14,699 14,358 132,248 4,671 188,084 105,422) (21,134) 227,121
Totals 102,022 215,863 112,582 (702,770) 13,735,391 7,135,716 (3,892,823) (1,827,097) 1,143,493

1 This amount reflects only what may have been deemed as community income. All CG/losses are not included since that would be separate property.
 ~

to
,
~.

)r

TO
C. SINATRA
194.002
88.574
818.839
503.347
903.706
1.009.921
434.362
315,759
283,647
113,320
47.t~
4,712,659