# Randal B. Ward v. Suzanne Banowsky McCaskill

> Texas Court of Appeals, 3rd District (Austin) · January 2, 2018

URL: https://www.frixlaw.com/law-library/cases/4235495

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** January 2, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4235495

## How later opinions describe it (automated extraction)

- reversing and remanding case to tiial comi based on conclusion that defendant had no actual or constructive notice of trial setting

## Opinion text

ACCEPTED
03-17-00543-CV
21523412
THIRD COURT OF APPEALS
AUSTIN, TEXAS
12/29/2017 10:50 AM
JEFFREY D. KYLE
CLERK

No. 03-17-00543-CV
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
THIRD DISTRICT AUSTIN, TEXAS
AT AUSTIN, TEXAS 1/2/2018 8:00:00 AM
JEFFREY D. KYLE
Clerk

RANDALL B. WARD, Appellant

v.

SUZANNE BANOWSKY MCCASKILL, Appellee

APPEAL FROM THE 274TH DISTRICT COURT OF COMAL COUNTY
TRIAL COURT CAUSE NUMBER C2015-1012C

BRIEF FOR APPELLANT

Gina Jones
State Bar No. 24036855
200 North Seguin Avenue
New Braunfels, Texas 78130
(830) 625-5454 - Phone
(830) 606-2036 - Facsimile
lawofficeofginajones@gmail.com

Attorney for Appellant
Randall B. Ward

ORAL ARGUMENT REQUESTED
Identity of Parties and Counsel

Attorneys for the Appellant, Randall B. Ward

AT TRIAL & ON APPEAL
Gina Jones
JONES SULLIVAN, PLLC
200 North Seguin A venue
New Braunfels, Texas 78130
(830) 625-5454 - Phone
(830) 606-2036 - Facsimile
lawofficeofginajones@gmail.com

Attorneys for the Appellee, Suzanne Banowsky McCaskill

AT HEARING
Deborah Wigington
DEBORAH LINNARTZ WIGINGTON & ASSOCIATES, PLLC
140 South Walnut A venue
New Braunfels, Texas 78130
(830) 627-7300 - Phone
1-866-706-8765 - Facsimile
deb@dlwlawfirm.com
Table of Contents

List of Parties and Counsel .............................................................................................................. i

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

Index of Authorities ....................................................................................................................... iii

Su1nmary of the Argument. .............................................................................................................. 1

A. Standard of Review .............................................................................................................. 1

B. Notice of Hearing to Appellant on April 26, 2017 was Inadequate to Allow the Comito
Make a Default Judgement Against Plaintiff. ...................................................................... 2

C. Appellant was Denied His Due Process Rights Guaranteed Under the Fourteenth
Amendment to the U.S. Constitution Because He Did Not Receive Notice of Hearing on
April 26, 2017 ...................................................................................................................... 3

D. Conclusion ........................................................................................................................... 6

Prayer ............................................................................................................................................... 7

Ce1iificate of Service ....................................................................................................................... 8

Ce1iificate of Service ....................................................................................................................... 9

ii
Index of Authorities

Cases

Alexander v. Lynda's Boutique, 134 S.W.3d 845 (Tex. 2004) ........................................................ 3

General Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942 (Tex. 1991) ....... 3

Ginn v. Forrester, 282 S.W.3d 430 (Tex. 2009) .............................................................................. 3

Kuykendall v. Beverly, 436 S.W.3d 809 (Tex. App.-Texarkana 2014, no pet.) ........................... 6

LBL Oil Co. v. International Power Servs., Inc., 777 S.W. 2d 390 (Tex. 1989) ............................. 5

Lopez v. Lopez, 757 S.W. 2d 721 (Tex. 1988) ................................................................................. 5

Mahand v. Delaney, 60 S.W.3d 371 (Tex. App.-Houston [1st Dist.] 2001), no pet. h.) ............... 5

Matthews v. Eldridge, 424 U.S. 319 (1976) .................................................................................. .4

Mosser v. Plano Three Venture, 893 S.W.2d 8 (Tex. App.-Dallas 1994, no writ) ...................... 5

Myers v. County of Williamson, 2011 WL 6352288 (Tex. App.-Austin Dec. 16, 2011, no pet.). 6

Pennoyer v. Neff, 95 U.S. 714 (1878) .............................................................................................. 4

Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) .............................................................. .4, 5

Smith v. Holmes, 53 S.W.3d 815 (Tex. App.-Austin 2001, no. pet. h.) ........................................ 5

Steele v. Steele, 2009 WL 2567911 (Tex. App.-Austin, Aug. 19, 2009) .................................. 1, 2

World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) ................................................ .4

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969) ............................................ 4

Rules

TEX. R. APP. P. 26.l(a) ..................................................................................................................... 1

Tex. R. App. P. 30 ................................................................ ,.......................................................... 3

iii
Summary of the Argument

A. Standard of Review

"A restricted appeal is available for the limited purpose of providing a non-participating

party an opportunity to correct an erroneous judgment." Steele v. Steele, No. 03-07-00011-CV,

2009 WL 2567911, at 2 (Tex. App. Aug. 19, 2009) (citing Clopton v. Pak, 66 S.W.3d 513, 516

(Tex. App .-F01i W01ih 2001, pet. denied)). To prevail on his restricted appeal, Appellant must

establish that: (1) he filed notice of the restricted appeal within six months after the judgment was

signed; (2) he was a party to the underlying lawsuit; (3) he did not participate in the hearing that

resulted in the judgment complained of and did not timely file any postjudgment motions or

requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the

record. Steele at 2 (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004)).

"The face of the record, for purposes of a restricted appeal, consists of all the papers,

including the reporter's record, on file when the trial comi rendered judgment." Steele at 3 (citing

DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551 (Tex.1991)); TEX. R. APP. P. 26.l(c), 30. "Because a

restricted appeal affords the same scope of review as an ordinary appeal, the appealing party may

challenge the legal and factual sufficiency of the evidence to support the order rendered." Steele

at 3 (citing Miles v. Peacock, 229 S.W.3d 384, 387 (Tex.App.-Houston [1st Dist.] 2007, no pet.)

(citing Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269,270 (Tex.1997)).

"In family law cases, the traditional sufficiency standards of review overlap with the abuse-

of-discretion standard of review; therefore, legal and factual insufficiency are not independent

grounds of error but are relevant factors in our assessment of whether the trial court abused its

discretion." Steele at 3 (citing Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex.App.-Fort Worth 2004, no

pet.)). "Accordingly, to determine whether there has been an abuse of discretion because the

evidence is legally or factually insufficient to support the trial court's decision, we engage in a two-

1
pronged inquiry, determining whether (1) the trial comi had sufficient evidence upon which to

exercise its discretion, and (2) the trial comi erred in its application of that discretion." Steele at 3

(citing Moroch v. Collins, 174 S.W.3d 849, 857 (Tex.App.-Dallas 2005, pet. denied)). "The

applicable sufficiency review comes into play with regard to the first question" (Steele at 3 (citing

Boyd, 131 S.W.3d at 611)) and a legal-sufficiency point must be sustained when, among other

things, " ... the evidence conclusively establishes the opposite of the vital fact." Steele at 3 (citing

City ofKeller v. Wilson, 168 S.W.3d 802, 810 & nn. 15-16 (Tex.2005)).

The judgment or order being appealed was signed on April 26, 2017. Appellant filed notice

of the restricted appeal on August 14, 2017, which is within the required six-month time frame.

Appellant appeared and was the respondent in the underlying lawsuit. Appellant did not participate

in the hearing that resulted in the judgment complained of due to a lack of notice and did not timely

file any postjudgment motions or requests for findings of fact and conclusions of law.

A. Appellant did not Receive Notice of the Final Hearing on April 26, 2017

On April 12, 2016, the trial court signed the "Order on Motion for Withdrawal of Counsel"

submitted by Marilee Brown, Appellant's former attorney ofrecord at trial. In said order, the trial

comi stated:

"The Comi finds that the last known address of [Appellant] Randall B. Ward is 722

W. 30 th Street, Houston, Texas 77018 and ORDERS that all notices in this case

shall either be delivered to [Appellant] Randall B. Ward in person or sent to

[Appellant] Randall B. Ward at that address by both certified and regular first class

mail."

(CR. P. 40, L. 12-15).

2
Despite the above language in the trial court's order, Appellee's counsel at trial, Deborah L.

Wigington, mistakenly mailed the notice to 958 Coyote Ridge Dr., Spring Branch, Texas 78070,

which happened to be the address of her client, Suzanne Banowsky McCaskill, petitioner at trial

and appellee in the instant case. (CR. P. 54). Nonetheless, during the final hearing of April 26,

2017, Wigington stated on the record that she had" ... sent [Appellant] notice on March l51 by

ce1iified and by regular mail" (RR. P. 5, L. 5-7) to the " ... address that was in the order for

withdrawal of [Appellant's] last known address from Ms. Brown." (RR. P. 5, L. 10-12). These

statements simply are not true. (CR. P. 40, L. 12-15; P. 54). Furthennore, Appellant was never

noticed of the comi's order as to the April 26, 2017 final hearing, which prevented him from

acquiring the requisite knowledge of the existence of the trial court's order necessary in the filing

of a motion for new trial as notice of the court's order was also mistakenly sent to 958 Coyote

Ridge Dr., Spring Branch, Texas 78070. (CR. P. 56).

When, as here, a party claims in a restricted appeal that the required notice was not given,

the error must appear on the face of the record. Ginn v. Forrester, 282 S.W.3d 430, 432 (Tex.

2009); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); General Elec. Co. v.

Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942,943 (Tex. 1991); see also TEX. R. APP.

P. 30. Although the trial comi neither requested nor entered any evidence to the record that would

have either supported or controverted such fact, simply taking Wigington's word, as an officer of

the comi, that notice had been perfected on Appellant and that the case was ripe for default, it is

affirmatively shown in the Clerk's record that Appellant did not receive notice of the final hearing.

(RR. p. 4, 1. 11-16).

B. Lack of Notice Deprived Appellant of his Rights to Due Process Guaranteed
Under the 14t1• Amendment to the U.S. Constitution

3
"An elementary and fundamental requirement of due process in any proceeding which is

to be accorded finality is notice reasonably calculated, under the circumstances, to apprise

interested paiiies of the pendency of the action and afford them the opportunity to present their

objections." Peralta v. Heights Med. Ctr., Inc,., 485 U.S. 80, 84-85 (1988) (quoting Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306,314 (1950). Failure to give notice violates "the

most rudimentary demands of due process oflaw." Peralta at 84-85 (quoting Armstrong v. Manzo,

380 U.S. 545, 550 (1965); See also at 85 World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

286,291 (1980); Mathevvs v. Eldridge, 424 U.S. 319, 333 (1976); Zenith Radio C01p. v. Hazeltine

Research, Inc., 395 U.S. 100, 110 (1969); Pennoyer v. Neff, 95 U.S. 714, 733 (1878).

"Where a person has been deprived of property in a maimer contrary to the most basic

tenets of due process, 'it is no answer to say that in his pmiicular case due process of law would

have led to the same result because he had no adequate defense upon the merits."' Peralta at 86-

87 (quoting Coe v. Armour Fertilizer Works, 237 U.S. 413, 424 (1915). "As we observed in

Armstrong v. Manzo, 380 U.S., at 552, only 'wip[ing] the slate clean ... would have restored the

petitioner to the position he would have occupied had due process of law been accorded to him in

the first place."' Id. "The Due Process Clause demands no less in this case." Id.

"Once a defendant has made an appearance in a cause, he is entitled to notice of the trial

setting as a matter of due process under the Fomieenth Amendment to the United States

Constitution." LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex.

1989) (per curiam). A defendant who does not receive notice of a post-answer default judgment

proceeding is deprived of due process. Id. A party who has been denied due process through lack

of notice of a trial setting satisfies the first Craddock factor and is not required to meet the

remaining requirements to be entitled to a new trial. Lopez v. Lopez, 757 S.W.2d 721, 723

4
(Tex.1988) (holding that Peralta eliminated the second requirement as a matter of constitutional

law in notice cases); Mahand v. Delaney, 60 S.W.3d 371 (Tex.App.-Houston [1st Dist.] 2001, no

pet. h.); Smith v. Holmes, 53 S.W.3d 815, 817-18 (Tex.App.-Austin 2001, no pet. h .); see also

Mosser v. Plano Three Venture, 893 S.W.2d 8, 12-13 (Tex.App.-Dallas 1994, no writ) (all holding

that the third requirement is necessarily also eliminated in notice cases).

If the party has no notice of the trial or heating, then the party is entitled to have the default

judgment set aside without consideration of the second and third requirements of Craddock. See

LBL Oil Co. v. Int'l Power Servs. Inc., 777 S.W.2d at 390-91 (reviewing a notice defect in the

context of a post-answer default judgment and reviewing the due process claim pursuant to Peralta

and without reference to any other Craddock requirement); see id. (reversing and remanding case

to tiial comi based on conclusion that defendant had no actual or constructive notice of trial

setting); Lopez v. Lopez, 757 S.W.2d 721, 722-23 (Tex. 1988) (per cmiam) (in context of post-

answer default judgment, remanding for new trial and concluding that defendant was not required

to establish Craddock element of me1it01ious defense when record established that defendant did

not have actual or constructive notice of tiial setting); Kuykendall v. Beverly, 436 S.W.3d 809,

814-15 (Tex. App.-Texarkana 2014, no pet.) (noting in context of post-appearance default that,

"when the defendant did not receive actual or constructive notice of trial, he has met the first prong

of Craddock, and due process prevents the application of the second and third prongs of the

Craddock test"); Myers v. County of Williamson, No. 03-10-00410-CV, 2011 Tex.App. LEXIS

9948, at *15, 2011 WL 6352288 (Tex. App.-Austin Dec. 16, 2011, no pet.) (mem.op.)(concluding

that "defendant who has been denied due process through lack of notice of a trial setting is entitled

to a new trial without further showing").

5
C. Conclusion

Appellant has affirmatively shown that (1) he was not noticed of the final hearing held on

April 26, 2017, in violation of his due process rights guaranteed under the 14th Amendment of the

U.S. Constitution (CR. P. 54); (2) Appellant was never noticed of the comi's order as to the April

26, 2017 final hearing, which prevented him from acquiting the requisite knowledge of the

existence of the trial court's order necessary in the filing of a motion for new trial(CR. P. 56); (3)

he filed notice of the restricted appeal within six months after the judgment was signed; (4) he was

a party to the underlying lawsuit; (5) he did not participate in the hearing that resulted in the

judgment complained of and did not timely file any postjudgment motions or requests for findings

of fact and conclusions oflaw; and (6) e1rnr is apparent on the face of the record(CR. P. 40, L. 12-

15; P. 54; P. 56). As such, Appellant is entitled to have the default judgment set aside followed

by a new trial.

6
Prayer

Wherefore, premises considered, Appellant prays that this Honorable Court of Appeals

reverse the trial court's order granting Appellee reimbursement of nineteen thousand, four

hundred and forty-three dollars and twelve cents ($19,443.12) and reverse the division of the

community and separate property in the Final Divorce Decree signed April 26, 2017 because the

Appellant received inadequate notice of hearing and was denied his Due Process rights

guaranteed under the Fourteenth Amendment of the U.S. Constitution. The Appellant prays that

the Court remand this case to the District Court for further orders.

JONES SULLIVAN, PLLC

By:

Gina Jones
200 North Seguin Avenue
New Braunfels, Texas 78130
(830) 625-5454 - Phone
(830) 606-2036 - Facsimile
lawofficeofginajones@gmail.com

Attorneys for Appellant Ward

7
Certificate of Service

I, Gina Jones, attorney for the Appellant, Randall B. Ward, hereby ce1iify that a true and
correct copy of this Brief for the Appellant has been delivered to Appellee counsel, Deborah
Wigington:

Ms. Deborah Wigington
Deborah Linnartz Wigington & Associates, PLLC
140 South Walnut A venue
New Braunfels, Texas 78130
Attorney for Appellee, Suzanne Banowsky McCaskill

By electronically sending it through efile.txcourts.gov service, this 28 th day of December, 2018.

Gina Jones

8
Certificate of Compliance

I hereby certify, pursuant to Rule 9.4(i)(2)(B) and Rule 9.4(i)(3) of the State of Texas
Rules of Appellate Procedure that the instant brief is computer-generated using LibreOffice and
said computer program has identified that there are 1867 words within the p01iions of this brief
required to be counted by Rule 9.4(i)(l) & (2) of the Texas Rules of Appellate Procedure.

The document was prepared in prop01iionally-spaced typeface using Times New Roman
12 for text.

Gina Jones

9
Appendix

1. Order On Motion For Withdrawal of Counsel

2. Attorney's Certificate of Respondent's Last Known Mailing Address

3. Court Reporter's Record on Final Divorce April 26, 2017

4. Final Decree Of Divorce
F~µlf
At • o'
Ecqna
ockitM
APR 12 016

NO. C2015,.JOJ2C

IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
SUZANNE D. MCCASKIL § 274th ,JUDIClAL D.ISTRICT
AND §
RANDAL B. w ARD § COMALCOUNTY;TEXAS

ORDER ON MOTION FOR WITHDRAWAL OF COUNSEL

On ~ 'Zdj, the Court considered the Motion for Withdrawal of Coume of

Marilee H. Brown.

The Court finds that good cause exists for withdrawal of Marilee H.Brown as counsel

The Court finds Urnt a copy of the Motion for Withdrawal of Counsel was de.livere to

·Randal.R Ward, that Randal B. Ward was notified in writing of the right to object to the moti n,

that Randal B. Ward has not cons·ented to the motion, that the last known address of Randal B.

Ward is 958 Coyote Ridge Dr., Spring Branch, Texas, 78070, and that the pending settings nd

deadlines in the case arc as foUows:.

Motion for Mediation set on 4/12/16 at9:00 a.rn ..

lT IS THEREF'ORE ORDERED that Marilee I-I. Brown is permitted fo withdraw as

counsel ofrecord for Randal B, Ward in this case.
th
The Court
. finds tha~ the J~qt known mailing address of Randal
. B. Ward is. 722 W. 3
, . .

Street, Houston, 'texas, 77018 and ORDERS that all notices in this case shall be either delive cd

to Randal B. Ward in person or sent to Randal B. Ward at that address by _b(Hh certified

regular :first-class maH.

The Court orders that MadleeR Brown immediately notify Randal B. Ward in writing .f

any additional settings or deadlines ofwhich Marilee.H. Bro1,-v.11 now has knowledge and has ot
I
l
I
i

already notified Randal B. Ward. The Court further orders Marilee H. Brown to make availabl

to Randal B. Ward, not later than _ _days after the date of entry ofthis order, the originals o

all of Randal B. Ward's discovery responses and documents Randal B. Ward has produced i

response to discovery requests.

SKlNEDo~~

AGREED TO AND APPROVED:

HAZEL BROWN & MILLER, PLLC
163 W Bridge Street
New Braunfels, TX 78130
Tel: (830) 629-6955
Fax: (830) 62972559

By:_·-f-l.'--1--1~~:..__ ___:~:........\----===+-
/. ilee H. Brown
State Bar No. 24046044
marilee@hazelbrownlaw.com
ttomey for Randal Barrett Ward

By:,~-+-~----.!.-~---------
Deborah Wigingto
State Bar No. 24036971
deb@dlwlaw.com
Attorney for Suzanne B. McCaskill
REVIEWED AND AGREED:
FILED
Susan Collier
C2015-1012C
4/27/2017 10:57:28 AM
Heather N. Kellar
Comal County
District Clerk
NO. C20 l5- l0 12C

IN THE MATTER OF § IN THR DISTRI.CT COURT
THE MARRI A(;E OF §
~
SUZANN I;, HANOWSKY MCCASKILL ~ .HJ UIC IAL DlSTRlCT
§
AND ~
RANDAL BARRETT WARD § COMAL COUNTY, TEXAS

ATTORNEY'S CERTJFlCATE OF RESPONBE,NT'S
LAST KNOWN MAJI .ING ADDRESS

In accordam;l! with ruk 239a of th1.;: Texas Rules orCi vil Pro ·eJurt::, I certify that the last
known mailing ar the __ Judicial

District C\mrt.

J11risdictio11 and Domiciie

The Court finds that ihe pieadings of Petitioner arc in due form nnd contain ull the

allegations, information, and prerequisites rcquirl~d by law. The Court, after receiving evidence,

linds that it has jurisdiction of this cnsc and of all the rartics and llmt ut lenst sixly days have

elapsed since the dale the suit was filtd.

The Comt !'11rther finds that. at the ti me this suit was filed, Petitioner had been a

domiciliary of Tex.as i'nr the preceding six-month period :rnd a n.:siclcnt of the county in which
this suit was filed for the preceding ninety-day period. All persons entitled to citation were

properly cited.

Jury

A jury was waived, and questions of fact and of law were submitted to the Court.

Divorce

IT IS ORDERED AND DECREED that Suzanne Banowsky McCaskill, Petitioner, and

Randal Barrett Ward, Respondent, are divorced and that the marriage between them is dissolved

on the ground of insupportability.

Child of the Marriage

The Court fmds that there is no child of the marriage of Petitioner and Respondent and

that none is expected.

Division ofMarital Estate

The Court finds that the following is a just and right division of the parties' marital estate,

having due regard for the rights of each party.

Property to Husband

IT IS ORDERED AND DECREED that the husband, is awarded the following as his sole

and separate property, and the wife is divested of all right, title, interest, and claim in and to that

property:

H-1. All household furniture, furnishings, fixtures, goods, art objects, collectibles,

appliances, equipment, and firearms in the possession of the husband or subject to his sole

control excluding the following that is awarded to wife: Mauser rifle with scope, chainsaw, iPad,

custom rifle with scope, wife's Lucchese boots.

H-2. All clothing, jewelry, and other personal effects in the possession of the husband
or subject to his sole control.

H-3. All sums of cash in the possession of the husband or subject to his 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 husband's sole name or

from which the husband has the sole right to withdraw funds or which are subject to the

husband's sole control.

H-4. 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 husband's past, present, or future employment.

H-5. All individual retirement accounts, simplified employee pensions, annuities, and

variable annuity life insurance benefits in the husband's name.

H-6. All policies of life insurance (including cash values) insuring the husband's life.

H-7. All brokerage accounts, stocks, bonds, mutual funds, and securities registered in

the husband's name, together with all dividends, splits, and other rights m1d privileges in

connection with them.

H-8. The 2014 Chevrolet Silverado motor vehicle, together with all prepaid insurance,

keys, and title documents and debt thereon.

Property to Wife

IT IS ORDERED AND DECREED that the wife, is awarded the following as her sole

and separate property, and the husband is divested of all right, title, interest, and claim in and to

that property:
W-1. All household furniture, furnishings, fixtures, goods, art objects, collectibles,

appliances, and equipment in the possession of the wife or subject to her sole control and the

following items in possession of the husband: Mauser rifle with scope, chainsaw, iPad, custom

rifle with scope, wife's Lucchese boots.

W-2. All clothing, jewelry, and other personal effects in the possession of the wife or

subject to her sole control.

W-3. All swns 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.

W-4. The swns, 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.

W -5. The individual retirement accounts, simplified employee pensions, annuities, and

variable annuity life insurance benefits in the wife's name.

W-6. All policies of life insurance (including cash values) insuring the wife's life.

W-7. All brokerage accounts, stocks, bonds, mutual funds, and securities registered in

the wife's name, together with all dividends, splits, and other rights and privileges in connection

with them.

Division of Debt
Debts to Husband

IT IS ORDERED AND DECREED that the husband shall pay, as a part of the division of

the estate of the parties, and shall indemnify and hold the wife and her property harmless from

any failure to so discharge, these items:

H-1. The balance due, including principal, interest, and all other charges, on the

promissory note given as part of the purchase price of and secured by a lien on the 2014

Chevrolet Silverado motor vehicle awarded to husband.

H-2. The following debts, charges, liabilities, and obligations:

a. all debts, charges, liabilities, and obligations solely in husband's name.

b. All tax liability for years prior to marriage.

H-3. All debts, charges, liabilities, and other obligations incurred solely by the husband

from and after June 18, 2015 unless express provision is made in this decree to the contrary.

H-4. Debt owed to ~fe in the amount of nineteen thousand, four hundred and forty-

three dollars and twelve cents ($19,443.12).

Debts to Wife

IT IS ORDERED AND DECREED that the wife, shall pay, as a part of the division of

the estate of the parties, and shall indemnify and hold the husband and his property harmless

from any failure to so discharge, these items:

W-1. All debts, charges, liabilities, and other obligations incurred solely by the wife

from and after June 18, 2015 unless express provision is made in this decree to the contrary.

Notice

IT IS ORDERED AND DECREED that each party shall send to the other party, within

three days of its receipt, a copy of any con·espondence from a creditor or taxing authority
concerning any potential liability of the other party.

Judgment

IT IS ORDERED that Petitioner, Suzanne Banowsky McCaskill entitled to

reimbursement from Randal Barrett Ward, and therefore, IT IS ORDERED that Suzanne

Banowsky McCaskill is granted a judgment against Respondent of nineteen thousand, four

hundred and forty-three dollars and twelve cents ($19,443.12) such judgment bearing interest at

6 percent simple interest per ye~ from the date this order is signed, for which let execution issue.

Liability for Federal Income Taxes for Prior Year
The Court ORDERS the following for prior tax years:

For the tax year 20 I 5 and 2016, for the purposes of detennining income tax liability, the

parties will partition 100 percent of the income, gain, loss, and deductions attributable to a party

from that party's individual labor, that party's individuaJ efforts, and file married but separate..

The partition further assigns to· a party any exemptions, exclusions, estimated tax payments, and

withholdings made by that party or for his or her benefit from date of marriage through

December 31, 2016. The parties further agree that any tax payments and any payments that are

tax deductible are assigned to the party who made those payments.

Randal Barrett Ward wi.ll report I 00 percent of his income, withholdings, prepayments,

and deductions and none of Suzanne Banowsky McCaskill's income, withholdings,

prepayments, and deductions. Randal Barrett Ward will be entitled to receive 100 percent of any

refund for which he might be entitled on his 2015 and 2016 federal income tax return. Randal

Barrett Ward will pay 100 percent of any liability shown on his 2015 and 2016 federal income

tax return.

Suzanne Banowsky McCaskill will report 100 percent of her income, withholdings,

prepayments, and deductions and none of Randal Barrett Wa.rd income, withholdings,
prepayments, and deductions. . Suzanne Banowsky McCaskill will be entitled to receive 100

percent of any refund for which she might be entitled on her 2015 and 2016 federal income tax

return. Suzanne Banowsky McCaskill will pay 100 percent of any liability shown on her federal

income tax return.

For calendar years 2015 and 2016, each party will indemnify and hold the other party and

his or her property harmless from any tax liability associated with the reporting party's individual

tax return for that year unless the parties have agreed to allocate their tax liability in a manner

different from that reflected on their returns.

The parties agree that nothing contained herein shall be construed as or is intended as a
waiver of any rights that a party has under the "Innocent Spouse" provisions of the Internal
Revenue Code.
Treatment/Allocation of Community Income for Year of Divorce

The Court hereby ORDERS the following for year of divorce:

For the purposes of determining income tax liability, the parties are Ordered to partition

I 00 percent of the income, gain, loss, and deductions attributable to a party from that party's

individual labor, that party's individual efforts, or the property awarded in this agreement to that

party, as his or her sole and separate property, as if that party had been single and unmarried

from January 1, 2017, through the date of divorce. The partition further assigns to a party any

exemptions, exclusions, estimated tax payments, and withholdings made by that party or for his

or her benefit from January I, 2017, through the date of divorce, as if the same were that party's

separate property. For purposes of determining income tax liability, any property awarded to a

party in this agreement shall be deemed to have been partitioned to that party and have been that

party's separate property as of January 1, 2017, and thereafter. IT IS ORDERED that any tax

payments and any payments that are tax deductible are assigned to the party who made those
payments.

For calendar year 2017, each party will file an individual income tax return in accordance

with the Internal Revenue Code.

Randal Barrett Ward will report 100 percent of his income, withholdings, prepayments,

and deductions and none of Suzanne Banowsky McCaskill's income, withholdings,

prepayments, and deductions. Randal Barrett Ward will be entitled to receive 100 percent of any

refund for which he might be entitled on his 2017 federal income tax return. Randal Barrett

Ward will pay 100 percent of any liability shown on his 2017 federal income tax return.

Suzanne Banowsky McCaskill will report 100 percent of her income, withholdings,

prepayments, and deductions and none of Randal Barrett Ward income, withholdings,

prepayments, and deductions. Suzanne Banowsky McCaskill will be entitled to receive 100

percent of any refund for which she might be entitled on her 2017 federal income tax return.

Suzanne Banowsky McCaskill will pay 100 percent of any liability shown on her 2017 federal

income tax return.

For calendar year 2017, each party will indemnify and hold the other party and his or her

property harmless from any tax liability associated with the reporting party's individual tax return

for that year unless the parties have agreed to allocate their tax liability in a manner different

from that reflected on their returns.

Each party will furnish such information to the other party as is requested to prepare

federal income tax returns for 2017 within thirty days of receipt of a written request for the

information, and in no event will the available information be exchanged later than March 1,

2018. As requested information becomes available after that date, it will be provided within ten

days of receipt.
Each party will pay for the preparation of his or her return for 2017.

IT IS ORDERED AND DECREED that all payments made to the other party in accordance with

the allocation provisions for payment of federal income taxes contained in this Final Decree of

Divorce are not deemed income to the party receiving those payments but are prui of the property

division and necessary for a just and right division of the parties' estate.

Confirmation of Separate Property

IT IS ORDERED AND DECREED that the following described property is confirmed as

the separate property of Suzanne Banowsky McCaskill: the residence and real property and all

furniture and fixtures contained therein located at 958 Coyote Ridge Dr., Spring Branch, Texas,

two four-wheelers, 2013 Dodge Challenger, 2004 F-250 Ford, the residence and real property

and all furniture and fixtures contained therein located at 1315 Modaff Rd., C-11, Naperville,

Illinois, 2 donkeys, 2001 Harley Davidson 1200 Custom motorcycle.

Respondent, Randal Barrett Ward is ORDERED to appear at the law office of Deborah

Linnartz Wigington, 140 S. Walnut, New Braunfels, Texas 78130 by 5:00 p.m. on May 31, 2017

to sign the title to the Honda 4X4.

No Alimony

IT IS ORDERED AND DECREED that no provision of this decree shall be construed as

alimony under the Internal Revenue Code, except as this decree expressly provides for payment

of maintenance or alimony under the Internal Revenue Code.

Court Costs

IT IS ORDERED AND DECREED that costs of court are to be borne by the party who

incurred them.

Discharge from Discovery Retention Requirement
IT IS ORDERED AND DECREED that the parties and their respective attorneys are

discharged from the requirement of keeping and storing the docwnents produced in this case in

accordance with rule 191.4(d) of the Texas Rules of Civil Procedure.

Indemnification

Each party represents and warrants that he or she has not incurred any outstanding debt,

obligation, or other liability ~n 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 asswning 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

asswning the debt, obligation, li°ability, act, or omission of the other party against any such claim

or demand, whether or not well founded, and will indemnify the party not asswning the debt,

obligation, liability, act, or omission of the other party and hold him or her harmless from all

damages resulting from the claim or demand.

Damages, as used in this provision, includes any reasonable 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 any judgment of any court of competent jurisdiction or in accordance

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 threatened or instituted against either party that might constitute

the basis of a clalm for indemnity under this decree.

Name Change

IT IS ORDERED that Suzanne Banowsky McCaskill, also known as Suzanne Bnnowsky

Ward, is gra11tecl a name change to Suzanne Bnnowsky McCaskill.

Cfar[fj,ing Orders

Without alfocting the finality or this Fina! Decree of Divorce, this Co urt expressly

reserves the right lo make orders necessary to clarify and enforce this decree.

N.eliefNot Granted

IT [S ORDERl:\D AND DECREED that all relief requested in this case nncl not expressly

granted is denied. This is a final j u~1.:Jt½ ., \ ,/2 1/l-._;; C:1_ ? ~ , - -)

-:~;tX1 ,;lRES fDlNG
APPROVED AS TO PORM ONL,Y:~ //
//

DEBOR/\1-1 L1NNARTZ WlGINGT ~//
& ASSOC TATES, PLLC ,... -·
140 S. Walnut Ave.
New Braunfels, Texas 78130
Tel : 830-627-7300
Fax: 1-866-706-8765
Deborah L. Wigington
Attorney for Petitioner
State Bar No. 24036971
deb@dlwlawfirm.com

APPROVED AND CONSENTED TO AS TO BOTH FORM AND SUBSTANCE:

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4235495. Public record. Not legal advice.