CourtListener opinion 4070471

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01-15-00856-CV

DATE 10/8/2015
 FILED IN
R

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

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

CAUSE: 2012-52286

VOLUME PAGE OR IMAGE # 67371346

DUE 12/15/2015 ATTORNEY 24041501

NOTICE OF APPEAL HAS BEEN ASSIGNED TO THE 1ST

DATE ORDER SIGNED: 7/17/2015

MOTION FOR NEW TRIAL FILED: 8/17/2015

REQUEST TRANSCRIPT DATE FILED N/A

NOTICE OF APPEAL DATE FILED 10/8/2015

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

CODES FOR NOTICE OF APPEAL: BC, C

 CHRIS DANIEL
 Harris County, District Clerk

 By: /s/IRMA MEDINA
 IRMA MEDINA, Deputy

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

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

 NO. 2012-52286

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

 NOTICE OF APPEAL

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

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

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

above.

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

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

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

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

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

protection case.

 Respectfully submitted,

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

 Certificate of Service

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

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

Party: Aaron Wayne Adcock

Lead attorney: Briscoe Cain

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

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

Date of service: October 8, 2015

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

 NO. 2012-52286

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

 MOTION FOR NEW TRIAL

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

in support:

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

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

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

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

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

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

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

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

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

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

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

Compelling Entry of Qualified Domestic Relations Order).

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

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

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

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

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

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

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

Default Order Compelling Entry of Qualified Domestic Relations Order).

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

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

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

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

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

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

Final Decree of Divorce).

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

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

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

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

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

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

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

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

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

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

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

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

UPS and Air Force retirement benefits.

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

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

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

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

Compelling Entry of Qualified Domestic Relations Order).

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

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

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

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

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

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

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

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

Adcock filed with this Motion for New Trial.).

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

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

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

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

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

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

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

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

2015 and grant a new trial.

 Respectfully submitted,

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

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

 Notice of Hearing

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

Judicial District, Harris County, Texas.

SIGNED on .

 Judge or Clerk

 Certificate of Service

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

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

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

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

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

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