Opposition Brief — Rutledge v. Rutledge

fi é’ Supreme Court, U.S,

“BILLED

8) AUG 12 wer

No. 87-72 * JOSEPH F. SPANIOL, JR.

CLERK

In The

Supreme Court of the United States

October Term, 1986

6

ROME RUTLEDGE,

Petitioner,

RUTH RUTLEDGE,

Respondent.

2

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

co)

JacK BANNER

Bar No. 01692000

Banner, Doses & Britey

1200 Hamilton Building

Wichita Falls, Texas 76301

(817) 723-6644

Attorneys for Respondent

COCKLE LAW BRIEF Lee ace CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

This Honorable Court should deny Petitioner’s ap-

plication for Writ of Certiorari because:

(1) The State Court judgment presents no sub-

stantial federal question.

(2) Petitioner’s application for Writ of Certiorari

was filed solely to delay the enforcement of the State

Court’s judgment.

il

LIST OF INTERESTED PARTIES

(1) Rome Rutledge, Petitioner

Wichita Falls, Texas

(2) Ruth Rutledge, Respondent

lowa Park, Texas

(3) Crampton, Crampton & Estrada

505 Lamar Street

Wichita Falls, Texas 76301

Attorneys for Petitioner

(4) Banner, Dobbs & Briley

1200 Hamilton Building

Wichita Falls, Texas 76301

Attorneys for Respondent

iii

TABLE OF CONTENTS

Pages

Questions Presented 4 i

List of Interested Parties li

Table of Contents iii

Table of Authorities wr iv

Statement of Case ...... 1

Reason 1 Why Application For Certiorari Should Be

ASO

eee

Reason 2 Why Application For Certiorari Should Be

SS ee +

argemest Under #2... +

EA a 5

Nee cas ethinecteonin aeei App. 1

Exhibit A—Motion for Contempt, Motion to

Compel Execution of Documents and Motion

for Judgment For Failure to Deliver Certain

Monies ......... Ibi Sa ne a RO App. 1

Exhibit B—Plea In Abatement 20000. App. 7

iv

TABLE OF AUTHORITIES

CasEs Page

Hortonville Dist. v. Hortonville Ed. Ass’n., 426

U.S. 482 (1976) . ncpeicliesetcsanaiail RE

Jordan v. Crudgington, 231 S.W.2d 641 (Tex. 1950)... 2,3

Paul v. Davis, 424 U.S. 693 (1976) __$___.._.. 3

Wolff v. McDonnell, 418 U.S. 539 (1974) nee eecceseeeeensee 3

Texas CONSTITUTION :

III i NUN A soca nrcnositisenpl alent 2

STATUTES :

IEA ED os ntcscecdereceeiceinepiinnclaenadpiacemeniimanebiaianele 2

I aaa Pe 3

RvLEs:

Rule 17 of the Rules of the Supreme Court of the

bo

STATEMENT OF THE CASE

This is a divorce case. On April 2, 1985, the trial

court heard the case. A jury was expressly waived by both

parties. On April 23, 1985, the County Court at Law for

Wichita County, Texas, a Court created by Texas Statute,

entered its decree granting a divorce and dividing the com-

munity property.

Petitioner appealed from such decree to the Court of

Appeals for the Second Supreme Judicial District of Texas

attacking the property division and the failure of the trial

court to grant a new trial. Petitioner did not raise any

issue concerning the trial court’s jurisdiction. The Court

of Appeals affirmed the trial court’s decree.

Following the Court of Appeals affirmance, Petitioner

filed a motion for rehearing which attacked the trial court’s

jurisdiction for the first time. Petitioner did not attack

the jurisdiction of the trial court on the basis that it al-

lowed juries to consist of six persons. The Court of Ap-

peals denied this motion for rehearing. Petitioner then

filed a second motion for rehearing and for the first time

attacked the jurisdiction of the trial court on the basis

that enabling legislation allowed for juries to consist of

six persons. This second motion for rehearing was over-

ruled by the Court of Appeals. Petitioner then filed a

third motion for rehearing which was also denied.

Petitioner then filed an Application for Writ of Error

to the Texas Supreme Court. The Texas Supreme Court

refused to grant this Writ of Error noting ‘‘no reversible

error.’’ |

ray

Vv

REASON 1 WHY THE APPLICATION FOR

CERTIORARI SHOULD BE DENIED

Restated

The State Court judgment presents no substantial

federal question.

ARGUMENT UNDER #1

To grant certiorari in this case the Supreme Court

must find that a substantial federal question exists. 28

U.S.C. 1257(3) ; Rule 17 of the Rules of the Supreme Court

of the United States. If the State Court decided the case

on non federal grounds, as here, this Court should not

grant certiorari. Here, the Texas Courts decided this case

by interpreting Texas law. By way of analogy, the Court

of Appeals for the Second Supreme Judicial District of

Texas cited United States Supreme Court cases that al-

lowed federal juries to be composed of six persons in civil

cases. However, the Texas Court of Appeals opinion did

not cite such case as stare decisis but rather by analogy

and authority.

Petitioner claims that Texas Constitution Article 5

Section 8 confers original exclusive jurisdiction over di-

vorce cases upon its state district courts. This is not true.

In Jordan v. Crudgington, 231 8.W. 2d 641 (Tex. 1950),

the Texas Supreme Court held that the legislature may

create statutory courts having jurisdiction over divorce

eases without violating that constitutional provision.

Petitioner also claims the state constitution requires

twelve person juries. The state constitution is silent as

to what constitutes a jury. In 1950, the Texas Supreme

Court in Jordan held that a jury, as used in the Texas

Constitution, consisted of twelve persons but cited no case

authority for its holding. The Court of Appeals held that

the Texas Constitution did not require twelve person juries

in overruling Petitioner’s second motion for rehearing.

The Texas Supreme Court has apparently overruled Jor-

dan when it refused Petitioner’s Application for Writ of

Error in this case. This holding is binding upon federal

courts. See Hortonville Dist. v. Hortonville Ed. Ass’n., 426

U.S. 482 (1976).

At any rate, Petitioner has not demonstrated in any

manner how the State Court’s refusal to hold that the trial

court lacked jurisdiction on the basis of what constitutes

a jury under the constitution has denied him due process.

Such a claim is especially ludicrous given the fact that

Petitioner waived a jury in this case. Furthermore, Peti-

tioner has not demonstrated in any manner how he was

denied equal protection by the refusal of the State Su-

preme Court to hold that the trial court lacked jurisdic-

tion. He has not demonstrated that he belongs to any

special class that was prejudiced by the trial court’s ruling.

In short, Petitioner simply makes a naked assertion that

the Supreme Court’s judgment violates the 14th Amend-

ment to confer a federal aura on this case which only in-

volves an interpretation of State Law. Petitioner’s re-

liance upon Wolff v. McDonnell, 418 U.S. 539 (1974) and

Paul v. Davis, 424 U.S. 693 (1976) is entirely misplaced.

Both of those cases were actions arising under Federal

Law, specifically 42 U.S.C. 1983. Here, Petitioner never

raised any claim of federal involvement until after the

Court of Appeals affirmed the trial court’s property di-

vision.

REASON 2 WHY THE APPLICATION FOR

CERTIORARI SHOULD BE DENIED

Restated

ond

Petitioner’s Application for Writ of Certiorari was

filed solely to delay the enforcement of the State Court’s

judgment.

ray

Vv

ARGUMENT UNDER #2

Petitioner never raised a jurisdictional objection at

the trial level or on initial appeal. As an after thought,

following the Texas Court of Appeals’ affirmance of the

trial court’s granting a divorce and dividing community

property, Petitioner, for the first time, raised jurisdic-

tional attacks based on the ‘‘jury’’ issue, even though Peti-

tioner had not requested a jury at the trial level and had

affirmatively placed all questions of law and fact before

the trial court, expressly waiving a jury. This jurisdic-

tional attack was raised solely as a vehicle by which Peti-

tioner could frivolously seek a review by this Court in an

effort to delay compliance with the trial court’s order,

which obligated Petitioner to turn over certain items of

community property.

Following the Texas Supreme Court’s refusal to grant

a Writ of Error in this case Respondent filed in the trial

court a motion to compel Petitioner to comply with the

specific terms of the divorce decree. In response to this

motion Petitioner filed a Plea In Abatement claiming that

the divorce decree was as yet unenforceable because Peti-

5

tioner intended to file an Application for Writ of Cer-

tiorari with this Court. Attached to that response is an

affidavit by Petitioner’s attorney, Holly Crampton, that

states that Petitioner intended to seek a review of the case

by the United States Supreme Court even before the case

was submitted to the Texas Supreme Court! Thus, it is

apparent that Petitioner is engaged in a war of attrition

with his ex-wife seeking to delay until the very last mo-

ment of time his compliance with the trial court’s decree.

Further evidence of these dilatory tactics is shown by the

fact that Petitioner filed three motions for rehearing in

the Court of Appeals and one motion for rehearing in the

Texas Supreme Court.

Petitioner’s sole intent in filing this Application for

Writ of Certiorari is to deprive Respondent of the prop-

erty lawfully granted to her in the trial court’s decree of

divorce.

t)

Vv

CONCLUSION

This is a controversy turning on the interpretation

of Texas Law and does not involve any issue arising under

the federal constitution. It is simply another effort by

Petitioner to avoid the trial court’s judgment. Respon-

dent respectfully prays that the Application for Writ of

Certiorari be and all things denied.

Respectfully submitted,

Jack BANNER

Banner, Dosss & BritEy

1200 Hamilton Building

Wichita Falls, Texas 76301

(817) 723-6644

Attorneys for Respondent

Ruth Rutledge

App. 1

APPENDIX

EXHIBIT A

NO. CCL-377-84

IN THE COUNTY

IN THE MATTER OF COURT AT LAW

THE MARRIAGE OF

OF

RUTH RUTLEDGE

AND

ROME RUTLEDGE WICHITA

ee ee

COUNTY, TEXAS

MOTION FOR CONTEMPT,

MOTION TO COMPEL EXECUTION OF DOCUMENTS

AND MOTION FOR JUDGMENT FOR FAILURE TO

DELIVER CERTAIN MONIES

(Filed April 23, 1987)

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Ruth Rutledge, Movant, and requests

the Court to enforce by contempt a prior order entered in

this cause, order the Respondent to execute certain spe-

cific instruments and to grant a judgment in favor of

Movant for the failure of Respondent to turn over certain

monies as required by this Court’s previous order and

for such request would show the Court the following:

I. On April 23, 1985, this Court enfered a final decree of

divorce, which appears of record in Volume 11, Pages 1158

through 1247, of the minutes of this Court, that states in

relevant part as follows:

It is ordered and decreed that Respondent, Rome Rut-

ledge, shall appear in the law offices of Fillmore, Purtle

App. 2

& Spurgers at Wichita Falls, Texas, at 2:00 P.M. on April

26, 1985, and shall execute, have acknowledged, and deliv-

ered to Petitioner, Ruth Rutledge, the following instru-

ments:

i

A special warranty deed in the form attached to

this Decree of Divorce as Exhibit 13 transferring

Respondent’s interest in the ranch at lowa Park,

Texas to Petitioner:

Assignments of overriding royalty interest in the

form attached to this Decree of Divorce as Ex-

hibits 14-18, transferring his interest in the roy-

alty interest to Petitioner;

Certificates of Title to the following motor ve-

hicles :

a. 1983 Cadillac Eldorado

b. 1980 Chevrolet pickup truck

e. 1965 pickup truck

d. 1978 4-wheel drive pickup

e. Winch truck

A check drawn on the MBank Wichita Falls, N. A.

account containing the approximately $225,000.00

that the Court has previously ordered Respon-

dent to deposit in such account, in the amount of

$60,500.00 payable to Ruth Rutledge.

Any and all other documents necessary to effect

this decree.

Movant is Petitioner and Respondent is Respondent

in the above described order.

Il. Respondent has disobeyed the order as follows:

a. Respondent failed to appear at the offices of

Fillmore, Purtle & Spurgers at Wichita Falls,

Texas at 2:00 P. M. on April 26, 1985, and

App. 3

failed to execute the special warranty deed

described as Exhibit 13 attached to the final —

decree of divorce; _

b. Respondent failed to appear at the law offices

of Fillmore, Purtle & Spurgers at Wichita

Falls, Texas at 2:00 P. M. on April 26, 1985

and failed to execute the assignments of over-

riding royalty interest in the form attached

to the decree of divorce as Exhibit 14-18

transferring Respondent’s interest in the

royalty interest to Petitioner;

ce. Respondent failed to appear at the law offices

of Fillmore, Purtle & Spurgers at Wichita

Falls, Texas at 2:00 P. M. on April 26, 1985

and failed to execute the certificates of titles

to the following motor vehicles:

1983 Cadillac Eldorado

1980 Chevrolet pickup truck

1965 pickup truck

1978 4-wheel drive pickup

Winch truck

d. Respondent failed to appear at the offices of

Fillmore, Purtle & Spurgers at Wichita Falls,

Texas at 2:00 P. M. on April 26, 1985 and

failed to deliver a check in the amount of

$60,500.00.

Ill. Im its final decree of divorce this Court awarded

movant the property described as Exhibit A attached to

this motion.

The Court also ordered the Respondent to execute any

and all other documents necessary to effect this decree.

Attached to this motion and identified as Exhibit B are

transfer orders required by Forest Oil Company, the com-

pany purchasing the oil from the gil lease -desertbedt-ebore;~--——- ~~

to transfer royalty payments to Movant. Movant requests

App. 4

the Court to issue a clarifying order directing Respondent

to execute the original of these documents within a reason-

able time so that Movant may receive the royalty she is

entitled. Movant further requests the Court to enter an

order holding Respondent in contempt of Court if he re-

fuses to execute such documents.

IV. In its final deeree of divorce this Court awarded

Movant the sum of $60,500.00 out of a specific account.

Movant requests the Court to hold Respondent in civil and

criminal contempt of Court for failing to deliver such

amount as alleged above. Respondent requests the Court

to order the Respondent to be confined in the county jail

of Wichita County Texas for six months and for an addi-

tional period of time until Respondent purges himself of

contempt by complying with the Court’s previous orders.

V. In the event the Court feels that any of the above

referenced orders contained in the final decree of divorce

are not specific enough to be enforced by contempt, Movant

requests the Court to enter a clarifying order directing

the Respondent to execute the documents transferring Re-

spondents interest in the property described in Exhibits

13 through 18 attached to the original decree of divorce,

the certificates of titles to the motor vehicles described

above and to order the Respondent to deliver the sum of

$60,500.00 to Movant.

VI. Respondent, Rome Rutledge, has failed to pay

$60,500.00 from the specific account of MBank Wichita

Falls, N.A., as ordered by this Court. Petitioner seeks a

judgement from this Court against Respondent pursuant

to V.T.C.A. Family Code, Section 3.74, for the $60,500.00

plus pre-judgment interest and post judgment interest.

Petitioner further requests the Court to rule that such

App. 5

sum was held in trust or constructive trust for Petitioner’s

benefit. Petitioner further requests damages for the fail-

ure of Respondents to so deliver such monies.

VII. It was necessary to secure the services of Stephen

Briley, a licensed attorney, to enforce and protect the

rights of Movant and Respondent should be ordered to pay

a reasonable attorney’s fees, and a judgment plus interest

should be rendered in favor of this attorney and against

Respondent; or in the alternative such reasonable attor-

ney’s fees should be taxed as cost and ordered to be paid

directly to the undersigned attorney.

VIIi. Movant would show it is necessary to appoint an

alternate process server. Prior motions to enforce the

Court’s decree have been placed with Mr. Mark Brewer

constable in and for Wichita County, Texas. As shown

by his affidavit attached hereto he has been unable to

serve such motions. Movant requests the Court to appoint

a disinterested adult to serve this motion.

PRAYER

Movant prays that the Court enter an order appoint-

ing an alternate method of service as requested herein and

that Respondent be cited to appear herein. Movant prays

that Respondent be held in contempt for disobedience of

this Court’s order as alleged herein and that punishment

be fixed at a fine of not more than $500.00 or confinement

in the county jail for not more than six months and con-

tinue thereafter until the Respondent complies with the

order of the Court as alleged herein. Movant prays for

App. 6

a money judgment as alleged and requested in this mo-

tion. Movant prays for attorney’s fees as herein alleged.

Respectfully submitted,

BANNER, DOBBS & BRILEY

1200 Hamilton Building

Wichita Falls, Texas 76301

817/723-6644

BY: /s/ Stephen Briley

Stephen Briley

State Bar No. 02993600

THE STATE OF TEXAS

COUNTY OF WICHITA

The undersigned states under oath:

‘‘T am Movant in the foregoing motion for contempt.

I have personal knowledge of the facts and allegations

stated in it and they are true and correct.’’

/s/ Ruth Rutledge

Ruth Rutledge, Affiant

THE STATE OF TEXAS

COUNTY OF WICHITA

SIGNED UNDER OATH BEFORE ME on the 22

day of April, 1987.

/s/ Marian S. Parks

Notary Public, State of Texas

My Commission Expires 1-24-89

SEAL

a

App. 7

EXHIBIT B

NO. CCL-377-84

IN THE MATTER OF )IN THE COUNTY

THE MARRIAGE OF ) COURT AT LAW

) OF

RUTH RUTLEDGE ) WICHITA

AND ) COUNTY,

ROME RUTLEDGE ) TEXAS

PLEA IN ABATEMENT

(Filed May 14, 1987)

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES Rome Rutledge by and through his at-

torney of record, and would show the Court that the Mo-

tion for Contempt, Motion to Compel Execution of Docu-

ments and Motion for Judgment for Failure to Deliver

Certain Monies should be abated, and in support of this

Plea would show the Court the following:

In 1983 the Texas Legislature enacted Subchapter D

to Chapter 3 of the Texas Family Code. Specifically, sub-

chapter D addresses the questions involving enforcement

of divorce decree.

§ 3.71(a) provides that ‘‘Further orders may be en-

tered to enforee the division, but these orders shall

be limited to orders in aid of or in clarification of the

prior order.’’

§ 3.71(c) states ‘‘The power of the court to enter fur-

ther orders to aid or clarify the property division is

abated during the pendency of any appellate proceed-

ings.’’? (emphasis ours)

App. 8

While this case has completed the Texas appellate

process, it is being appealed by Writ of Certiorari to the

United States Supreme Court. The time period in which

to petition for certiorari in a civil case is governed by

Rule 20 of the Kules of the Supreme Court and 28 U.S.C.

§ 2101(c) which provides:

(c) Any other appeal on any writ of certiorari in-

tended to bring any judgment or decree in a civil

action, suit or proceeding before the Supreme Court

for review shall be taken or applied for within ninety

days after the entry of such judgment or decree... .

Because the Petition for Certiorari must be profes-

sionally printed and the form must be strictly adherred

to, counsel for Rome Rutledge does not expect to be able

to file the Petition for Certiorari before the end of May,

1987, which is a period of time significantly less than the

90 days given by law within which to file.

The decision to take this case to the United States

Supreme Court if necessary was made in the summer of

1986 by Rome Rutledge and this counsel following the

Opinion by the Court of Appeals being handed down.

The provisions of the family code § 3.71 are specific

and control in matters involving enforcement of a divorce

decree over general provisions of the law. § 3.71(c) is not

limited to State court appellate proceedings, nor is a super-

cedeas bond require, nor is there any reference to whether

the mandate has come down or not.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Rome

Rutledge prays that the Court abate the said Motion for

Contempt, Motion to Compel Execution and Documents

App. 9

and Motion for Judgment for Failure to Deliver Certain

Monies until the conclusion of the federal court appellate

process.

Respectfully submitted,

CRAMPTON, CRAMPTON &

ESTRADA

By: Holly Crampton

State Bar No. 05004500

505 Lamar

Wichita Falls, Texas 76301

(817) 723-9746

Attorneys for Rome Rutledge

STATE OF TEXAS )

)

COUNTY OF WICHITA )

BEFORE ME, the undersigned authority, on this day

personally appeared Holly Crampton, who, being duly

sworn, on her oath, deposed as follows:

My name is Holly Crampton, and I am the attorney

of record for Rome Rutledge.

On April 8, 1987, the Supreme Court of Texas over-

ruled Mr. Rutledge’s Motion for Rehearing.

App. 10

Mr. Rutledge and I agreed in the summer of 1986 to

take this case to the United States Supreme Court if it

was not overturned in the State appeals process.

We have preserved an important federal question to

present to the United States Supreme Court arising out

of the application of federal law to this case by the Court

of Appeals which restricts the greater rights of Texas

citizens specifically enunmerated in the Texas Constitu-

tion.

Our law firm expects to file Mr. Rutledge’s Petition

for Certiorari to the United States Supreme Court no

later than Monday, June 1, 1987.

Further Affiant sayeth not.

/s/ Holly Crampton

SIGNED AND SUBSCRIBED BEFORE Mb this

14th day of May, 1987.

/s/ Betsy Gurganus

Notary Public, State of Texas

My Commission Expires: 10-25-89

(SEAL)

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the above

and foregoing Plea in Abatement was hand delivered to

Mr. Stephen Briley, Banner, Dobbs & Briley, Suite 1200

Hamilton Building, Wichita Falls, Texas 76301, on this

14th day of May, 1987.

/s/ Holly Crampton