Appendix — Austin v. Dawson-Austin

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‘ Supreme Court, u

W tts

98 559 01 1-198

OFFICE

No.

In The

Supreme Court of the United States

October Term, 1998

WILLIAM FRANKLIN AUSTIN,

Petitioner

CYNTHIA LEE DAWSON-AUSTIN,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TEXAS

APPENDIX TO PETITION

FOR WRIT OF CERTIORARI

RICHARD R. ORSINGER

Counsel of Record

ATTORNEY AT LAW

1616 Tower Life Building

San Antonio, Texas 78205

Telephone: (210) 225-5567

Telefax: (210) 267-7777

Attorney for Petitioner

Item 1

Item 2

Item 3

Item 4

Item 5

Item 6

Item 7

Item 8

APPENDIX

Final Decree of Divorce ..............

Trial Court’s Findings of Fact

and Conclusions of Law ..............

Court of Appeals’ Opinion ............

Texas Supreme Court’s Opinion........

Texas Supreme Court’s Judgment ......

Clerk’s Letter regarding overruling of

rehearing in Texas Supreme Court......

U.S. Constitution, Fourteenth

Amendment, Section 1 ...............

Abernathy v. Abernathy, 482 S.E.2d 265

uo RRSP rete

A-1

NO. 92-14835

In the Matter of .

the Marriage of

riag In the District Court of

William Franklin Austin > Dallas County, Texas

and 301st Judicial District

Cynthia Lee Dawson-Austin

FINAL DECREE OF DIVORCE

On July 1, 1993, this case came on for trial in open court

before this the 301st Judicial District Court in and for Dallas

County, Texas.

On August 31, 1993 both parties rested and on Septem-

ber 2, 1993 the Court heard argument of counsel.

Petitioner, WILLIAM FRANKLIN AUSTIN, Social Se-

curity number 542-46-5854, appeared in person and through

his attorneys of record, M.J. “Ike” Vanden Eykel of Koons,

Fuller & Vanden Eykel and Harry L. Tindall of Tindall &

Foster, P.C.

Respondent, CYNTHIA LEE DAWSON-AUSTIN, So-

cial Security number 543-50-1164, appeared in person and

through her attorneys of record Kenneth G. Raggio, Charles

Wilson and Tom O’Brien of Raggio & Raggio, Inc., Toby

Goodman of Goodman & Clark, P.C., and Michael Aronson.

Robert Smith, a member of the California Bar appeared pro

hac vice.

The record of testimony was duly reported by Evelyn

Talada, 301st Judicial District Court Reporter, Dallas County,

Texas.

The Court finds that the pleadings of Petitioner are in due

form and contain all the material allegations, information, and

prerequisites required by law. The Court, after receiving

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evidence, finds that it has jurisdiction over this cause of action

and the parties and that at least 60 days have elapsed since the

date the suit was filed. The Court finds Petitioner was and has

been a domiciliary of this state for at least a six-month period

preceding the filing of this action and a resident of the county

in which this suit is filed for at least a 90-day period preceding

the filing of this action.

A jury was waived, and all questions of fact and of law

were submitted to the Court.

The parties stipulated that William Franklin Austin and

Cynthia Lee Dawson-Austin were married on August 23,

1980. The Court accepts the stipulation.

IT IS ORDERED AND DECREED that WILLIAM

FRANKLIN AUSTIN, Petitioner, and CYNTHIA LEE DAW-

SON-AUSTIN, Respondent, are divorced and that the mar-

riage between them is dissolved on the ground of

insupportability.

)

The Court finds there were no children born or adopted

of the marriage and that none were expected.

IT IS ORDERED, ADJUDGED AND DECREED that

the estate of the parties be and is hereby divided as follows:

Petitioner, WILLIAM FRANKLIN AUSTIN, is awarded

as his sole and separate property all the property listed on

Schedule “A” attached hereto. Respondent, CYNTHIA LEE

DAWSON-AUSTIN, is divested of any right, title, interest or

claim in the property listed on Schedule “A” and title to such

property is hereby vested in Petitioner, WILLIAM FRANK-

LIN AUSTIN.

Respondent, CYNTHIA LEE DAWSON-AUSTIN, is

awarded as her sole and separate property all the property

listed on Schedule “B” attached hereto. Petitioner, WIL-

LIAM FRANKLIN AUSTIN, is divested of any right, title,

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interest or claim in the property listed on Schedule “B” and

title to such property is hereby vested in Respondent,

CYNTHIA LEE DAWSON-AUSTIN.

The Court orders that any unsecured debt shall be the

obligation of the party incurring same unless specific provi-

sion is made herein to the contrary. The award of property

which secures an indebtedness includes the assignment of the

underlying debt to the spouse receiving the property. The

spouse receiving such property will indemnify and hold the

other spouse and their property harmless from any and all

liability on such underlying indebtedness.

IT IS ORDERED AND DECREED that WILLIAM

FRANKLIN AUSTIN timely pay and hold CYNTHIA LEE

DAWSON-AUSTIN and her property harmless from the fol-

lowing community liabilities:

(1) NorthPark National Bank — $720,000.00; and

(2) Norwest National Bank — $250,000.00.

IT IS ORDERED AND DECREED and the Court so

finds that, 100% ownership interest in Starkey Laboratories,

Inc. was and has been at all times the separate property of

WILLIAM FRANKLIN AUSTIN.

IT IS ORDERED that WILLIAM FRANKLIN AUSTIN

pay to RAGGIO & RAGGIO, INC. the sum of $400,000.00

for attorneys for CYNTHIA LEE DAWSON-AUSTIN. The

Court finds that payment of said fees was made in open Court

on the 28th day of September, 1993.

IT IS ORDERED AND DECREED that CYNTHIA LEE

DAWSON-AUSTIN shall appear in the 301st Judicial District

Court, Dallas County, Texas at 9:00 p.m. on the 15 day of

September, 1993, and execute, have acknowledged, and de-

liver to WILLIAM FRANKLIN AUSTIN the following docu-

ments or appropriate situs state equivalents:

A-4

(1) [Special Warranty] Deeds in the forms attached

to the Decree of Divorce as Exhibits B, C, D, and E for

the following property:

[6650 Vernon Ave. South, Edina, Minnesota,

Units No. 219, 319, 406 and 419;

(2) [Special Warranty] Deeds in the forms attached

to the Decree of Divorce as Exhibits F, G, H, I, and J for

the following property:

6670 Vernon Ave. South, Edina, Minnesota,

Units 109, 119, 209, 409 and 419;

(3) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit K for the following

property:

6730 Vernon Ave. South, Edina, Minnesota,

Unit 219;

(4) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit L for the following

property:

230 Birch Bluff, Tonka Bay, Minnesota;

Lots 25, 26, and 27, “Wilcox Old Orchard

Addition, Hennepin County, Minnesota.

(5) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit M for the following

property:

5321 Beachside, Mim_2tonka, Minnesota;

Lot 17, Block 3, Beachside.

A-5

(6) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit N for the following

property:

706 Chandler Ave., Glencoe, Minnesota,

Lot 6 and 7, Block 69 in the town of Franklin

in McLeod County, Minnesota.

(7) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit O for the following

property:

601 Kings Croft, Cherry Hill, New Jersey;

Unit No. 601, lying and being in the Township

of Cherry Hill, County of Camden and State of New

Jersey.

(8) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit P for the following

property:

2915 East 10th Street, Glencoe, Minnesota;

That part of the West Half of the West Half of

the Northeast Quarter of Section 18, Township 115,

Range 27, McLeod County, Minnesota.

(9) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit Q for the following

property:

9505 Hamilton Ave., Eden Prairie, Minnesota;

Lot 7 and That part of Lot 7, lying Easterly of

a line described as beginning at the Southeast corner

of Lot 7, thence Northerly at right angles to the

South line of said Lot 7 to its intersection with the

Northerly line of said Lot 7 and there terminating;

All in Block 1, Claradon Park, according to the

plat thereof on file or of record in the office of the

Registrar of Titles in and for said county.

(10) [Special Warranty] Deed in the form attached

to the Decree of Divorce as Exhibit R for the following

property:

2255 Northeast 194th Ave., Portland, Oregon;

Lot 5, except southerly 549 feet thereof, San

Rafael Industrial District.

(11) [Special Warranty] Deed in the form attached

to the Decree of Divorce as Exhibit S for the following

property:

6701 Field Way, Edina, Minnesota;

Lot 2, Block 3, Parkwood Knolls, 19th

Addition.

(12) [Special Warranty] Deed in the form attached

to the Decree of Divorce as Exhibit T for the following

property:

205 Ellen, Nixa, Missouri;

Section 13, Township 27, Range 22, All SE '/

NW '/s SE '/4, also described as Lots 1600 and 1603

City (Village) of Nixa and Vac. St. lying.

(13) [Special Warranty] Deed in the form attached

to the Decree of Divorce as Exhibit U for the following

property:

208 Poplar, Nixa, Missouri;

Section 14, TWp 27, Rg 22; Lot 6, Hedgpeth

Estates.

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(14) [Special Warranty] Deed in the form attached

to the Decree of Divorce as Exhibit V for the following

property:

5334 Harbor Town, Dallas, Texas:

Lot 13, Block "sss of Bent Tree North, an

addition to the City of Dallas, Collin County, Texas,

according to the plat thereof, recorded in Volume B,

Page 138, Map Records, Collin County, Texas.

Certificate of Correction filed November 20, 1978,

recorded in Volume 1144, Page 789, Deed Records,

Collin County, Texas and filed in Dallas County in

Volume 78053, Page 1968, Deed Records, Dallas

County, Texas.

IT IS ORDERED AND DECREED that WILLIAM

FRANKLIN AUSTIN shall appear in the 301st Judicial

District Court, Dallas County, Texas at 2:00 p.m. on the 15th

day of October, 1993, and execute, have acknowledged, and

deliver to CYNTHIA LEE DAWSON-AUSTIN the following

documents or appropriate situs state equivalents:

(1) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit W for the following

property:

Street Address: 70661 Oroville Circle, Rancho

Mirage, California.

Parcel 4 of Parcel Map 5950, in the City of

Mirage, County of Riverside, State of California, as

per map recorded in Book 16, Page 53, of Parcel

Maps, in the Office of the County Recorder of said

County.

A-8

(2) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit X for the following

property:

Street Address: 8 Birchfield Drive, Mt. Laurel,

New Jersey.

KNOWN AND DESIGNATED as Lot 8,

Block 404 on “Plan of Phase One, Section 1 and 2

of Birchfield”, said map filed in the Burlington

County Clerk’s Office on May 14, 1973, as Map

No. 01709.

ALSO being known as lot 8, Block 404 on the

Tax Map of the Township of Mount Laurel, Bur-

lington County, New Jersey.

BEING the same premises conveyed to the

Giantors herein by Deed of Peter H. Strauss which

Deed is dated December 21, 1984 and recorded in

the Burlington County Clerk Office on January 5,

195 in book 2948 of Deed for said County, on

Page 131.

(3) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit Y for the following

property:

Street Address: 6120 Pine Street, Florence,

Oregon.

Section 16, Township 17, Range 12, Tax Lot

Number 02800.

(4) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit Z for the following

property:

Section 27, T 13 S, R 10 W, County of

Lincoln, as platted and recorded in Book 38,

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Page 1376, Lincoln County Deed Records, in Lin-

coln County, Oregon.

(5) [Special Warranty] Deed in the form attached to

the Decree of Divorce as Exhibit AA for the following

property:

Street Address: 5555 Collins Ave., Miami,

Florida.

Unit No. Ph-D, of OCEANSIDE PLAZA

CONDOMINIUM, according to the Declaration of

Condominium thereof, recorded July 24, 1978 in

Office Records Book 10102 at Page 365 of the

Public Records of Dade County, Florida, and

amendments thereto, together with all appurte-

nances thereto, including an undivided interest in

the common elements of said condominium as set

forth in said Declaration and amendments.

IT IS ORDERED AND DECREED that all relief re-

quested in this cause and not expressly granted is denied.

Signed on the 28 day of September, 1993.

/s/ BOB O’DONNELL

BOB O’DONNELL, Judge Presiding

301st Judicial District Court

Dallas County, Texas

A-10

APPROVED AS TO FORM:

TINDALL & FOSTER, P.C.

By:

“Harry L. Tindall

Texas Bar Card: 20053000

2800 Texas Commerce Tower

Houston, Texas 77002-3094

Telephone No. (713) 229-8733

Fax No. (713) 228-1303

KOONS, FULLER & VANDEN EYKEL, P.C.

By:

Kenneth D. Fuller

Texas Bar Card: 07521000

M.J. “Ike” Vanden Eykel

Texas Bar Card:

2311 Cedar Springs Rd., Suite 300

Dallas, Texas 75201

Telephone No. (214) 871-2727

Fax No. (214) 871-0196

ATTORNEYS FOR PETITIONER

WILLIAM FRANKLIN AUSTIN

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RAGGIO & RAGGIO, INC.

By:

| Kenneth G. Raggio

; Texas Bar Card: 16467500

| 3316 Oak Grove Avenue, Suite 100

Dallas, Texas 75204

Telephone No. (214) 880-7500

Fax No. (214) 880-7506

A-12

SCHEDULE A

PROPERTY AWARDED TO PETITIONER,

WILLIAM FRANKLIN AUSTIN

Real property and improvements located thereon, includ-

ing but not limited to any escrow funds, prepaid insur-

ance, utility deposits, keys, house plans, warranties and

service contracts, and title and closing documents, more

particularly described as:

6650 Vernon Ave. South, Edina, Minnesota, Units

No. 219, 319, 406 and 419; ©

6670 Vernon Ave. South, Edina, Minnesota,

Units 109, 119, 209, 409 and 419;

6730 Vernon Ave. South, Edina, Minnesota,

Unit 219;

230 Birch Bluff, Tonka Bay, Minnesota;

5321 Beachside, Minnetonka, Minnesota;

706 Chandler Ave., Glencoe, Minnesota;

601 Kings Croft, Cherry Hill, New Jersey;

2915 East 10th Street, Glencoe, Minnesota;

9505 Hamilton Ave., Eden Prairie, Minnesota;

2255 Northeast 194th Ave., Portland, Oregon;

6701 Field Way, Edina, Minnesota;

205 Ellen, Nixa, Missouri;

208 Poplar, Nixa, Missouri;

5334 Harbor Town, Dallas, Texas:

All household furniture, furnishings, fixtures, goods,

appliances and equipment in the possession of or subject

to the control of Petitioner, WILLIAM FRANKLIN

AUSTIN.

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> of the artwork and collections of WILLIAM FRANK-

LIN AUSTIN and CYNTHIA LEE DAWSON-AUSTIN.

All clothing, jewelry, and other personal effects in the

possession of or subject to the sole control of Petitioner,

WILLIAM FRANKLIN AUSTIN.

Any and all sums of cash on deposit in Compass Bank,

Dallas, Texas, Account #73124328; and NorthPark Na-

tional, Dallas, Texas, Account #5091426.

The following life insurance policies insuring the life of

WILLIAM FRANKLIN AUSTIN, together with any and

all cash surrender value associated therewith and any and

all contingent beneficial interest:

a) Summit National Life Policy Number

SN8904954U;

b) John Hancock Life Policy Number 66808477; and

c) John Hancock Life Policy Number 66858202.

66.68% of the Starkey Employees Savings and Retire-

ment Plan, whether matured or unmatured, accrued or

unaccrued, vested or otherwise, together with all in-

creases, its proceeds, and any other rights related to the

Starkey Employees Savings and Retirement Plan existing

by reason of WILLIAM FRANKLIN AUSTIN’S past

employment with Starkey Laboratories, Inc.

The Willowbend Polo & Hunt Club membership.

A-14

SCHEDULE B

PROPERTY AWARDED TO RESPONDENT,

CYNTHIA LEE DAWSON-AUSTIN

Real property and improvements located thereon, in-

cluding but not limited to any escrow funds, prepaid

insurance, utility deposits, keys, house plans, warranties

and service contracts, and title and closing documents,

more particularly described as:

a) 70661 Oroville Circle, Rancho Mirage, California;

b) 8 Birchfield Drive, Mt. Laurel, New Jersey;

c) 6120 Pine Street, Florence, Oregon;

d) Parcel 16.00, Section 27, T13S, R1OW, Lincoln

County, Oregon; and

e) 5555 Collins Ave., Miami, Florida.

All household furniture, furnishings, fixtures, goods,

appliances and equipment in the possession of or sub-

ject to the control of Respondent, CYNTHIA LEE

DAWSON-AUSTIN.

1/2 of the artwork and collections of WILLIAM

FRANKLIN AUSTIN and CYNTHIA LEE DAWSON-

AUSTIN.

All clothing, jewelry, and other personal effects in the

possession of or subject to the sole control of Respon-

dent, CYNTHIA LEE DAWSON-AUSTIN.

Any and all sums of cash on deposit in Norwest Bank,

Minneapolis, Account #2735777; and Citizen State

Bank Account #632083.

The following life insurance policies insuring the life of

CYNTHIA LEE DAWSON-AUSTIN, together with

10.

il.

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any and all cash surrender value associated therewith

and any and all contingent beneficial interest:

a) Summit National Life Policy Number

SN8904953U.

The 1979 Mercedes motor vehicle, vehicle identifica-

tion number 116003612006392, together with all pre-

paid insurance, keys, and title documents.

The 1975 Westlake mobile home, together with all

prepaid insurance, keys, and title documents.

33.32% of the Starkey Employees Savings and Retire-

ment Plan, whether matured or unmatured, accrued or

unaccrued, vested or otherwise, together with all in-

creases, its proceeds, and any other rights related to the

Starkey Employees Savings and Retirement Plan ex-

isting by reason of WILLIAM FRANKLIN AUSTIN’S

past employment with Starkey Laboratories, Inc., accor-

dance with a Qualified Domestic Relations Order to be

signed on the same day as this Final Decree of Divorce.

Any and all sums, whether matured or unmatured,

accrued or unaccrued, vested or otherwise, together

with all increases, its proceeds, and any other rights

related to any profit-sharing plan, retirement plan, pen-

sion plan, employee stock option plan, employee sav-

ings plan, accrued unpaid bonuses OF other benefit

program existing by reason of CYNTHIA LEE

DAWSON-AUSTIN’S past, present and future

employment.

The Thunderbird Club membership.

A-16

OREGON STATUTORY BARGAIN AND SALE DEED

CYNTHIA DAWSON AUSTIN, Grantor, conveys to

WILLIAM AUSTIN, Grantee, the following described real

property situated in Multnomah County, Oregon, to-wit:

Lot 5, except the southerly 549 feet thereof, San

Rafael Industrial District.

The true consideration for this conveyance is compliance

with Decree of Dissolution of Marriage.

Until a change is requested, all tax statements are to be

sent to the following address:

William F. Austin

5334 Harbor Town

Dallas, Texas 75287

THIS INSTRUMENT WILL NOT ALLOW USE OF

THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN

VIOLATION OF APPLICABLE LAND USE LAWS AND

REGULATIONS. BEFORE SIGNING OR ACCEPTING

THIS INSTRUMENT, THE PERSON ACQUIRING FEE

TITLE TO THE PROPERTY SHOULD CHECK WITH THE

APPROPRIATE CITY OR COUNTY PLANNING DEPART-

MENT TO VERIFY APPROVED USES.

DATED this day of , 1993.

| =

The foregoing instrument was acknowledged before me

this day of , 1993, by Cynthia Dawson Austin,

Cynthia Dawson Austin

STATE OF

County of

A-17

who personally appeared and is personally known to me or

proved to me on the basis of satisfactory evidence to be the

person whose name is subscribed to this instrument, and

acknowledged that she executed it.

Witness my hand and official seal.

Notary Public for

My Commission Expires:

AFTER RECORDING, RETURN TO:

Ike Vanden Eykel, Esq.

Koons, Fuller & Vanden Eykel

2311 Cedar Springs, Suite 300

Dallas, Texas 75201

EXHIBIT Y

A-18

This Instrument Prepared by: MILLER AND SCHWARTZ,

P.A.

Address: 4040 Sheridan Street, Post Office Box 7259

Hollywood, Florida 33081-1259

Robert M. Schwartz, Esq.

Property Appraisers Parcel Identification (Folio) Number(s):

3214-010-2990

Grantee(s) S.S. #(s): 543-50-1164

THIS SPECIAL WARRANTY DEED Made the

day of A.D. 1993 by WILLIAM AUSTIN

and CINDY DAWSON-AUSTIN, his wife hereinafter called the

grantor, to CINDY DAWSON-AUSTIN whose post office ad-

dress is 70661 Oroville Circle, Rancho Mirage, California

92270 hereinafter called the grantee:

(Wherever used herein the terms “grantor” and

“grantee” include all the parties to this instrument and

the heirs, legal representatives and assigns of individuals,

and the successors and assigns of corporations.)

WITNESSETH: Thai the grantor, for and in considera-

tion of the sum of $10.00******* and other valuable consid-

erations, receipt whereof is hereby acknowledged, hereby

grants, bargains, sells, aliens, remises, releases, conveys and

confirms unto the grantee all that certain land situate in Dade

County, State of Florida, viz:

Unit No. Ph-D, of OCEANSIDE PLAZA CONDO-

MINIUM, according to the Declaration of Condominium

thereof, recorded July 24, 1978, in Official Records Book

10102 at Page 365 of the Public Records of Dade

County, Florida, and amendments thereto, together with

all appurtenances thereto, including an undivided interest

in the common elements of said condominium as set

A-19

forth in said Declaration and amendments. a/k/a 5555

Collins Avenue, Ph-D, Miami Beach, Florida 33140.

TOGETHER, with all the tenements, hereditaments and

appurtenances thereto belonging or in anywise appertaining.

TO HAVE AND TO HOLD, the same in fee simple

forever.

AND the grantor hereby covenants with said grantee

that the grantor is lawfully seized of said land in fee simple;

that the grantor has good right and lawful authority to sell

and convey said land, and hereby warrants the title to said

land and will defend the same against the lawful claims of all

persons claiming by, through or under the said grantor.

IN WITNESS WHEREOF, the said grantor has here-

unto set their hands and seals the day and year first above

written.

Signed, sealed and delivered in the presence of:

L.S.

Witness Signature (as to Grantor) Grantor Signature

WILLIAM AUSTIN

Printed Name Printed Name

5334 Harbor Town

Dallas, Texas 75287

Witness Signature (as to Grantor) Post Office Address

Printed Name

A-20

£..S.

Wimess Signature (as to Co-Grantor, if Co-Grantor Signature, if any

any)

CINDY DAWSON-AUSTIN

Printed Signature Printed Signature

70661 Oroville Circle

Rancho Mirage. California 92270

Witness Signature (as to Co-Grantor, if Post Office Address

any)

Printed Name

STATE OF I hereby Certify that on this day, before me,

an officer duly authorized to administer

COUNTY OF oaths and take acknowledgments, person-

ally appeared

CINDY DAWSON-AUSTIN

known to me to be the person described in and who

executed the foregoing instrument, who acknowledged before

me that she executed the same, that I relied upon the follow-

ing form of identification of the above-named person

and that an oath (was)(was not)

taken.

Witness my hand and official seal

NOTARY RUBBER STAMP in the County and State last

SEAL aforesaid this day of

, A.D. 19

Notary Signature

Printed Notary Signature

EXHIBIT AA

A-21

SPECIAL

WARRANTY DEED

STATE OF

COUNTY OF

I hereby certify that on this day, before me, an officer

duly authorized to administer oaths and take acknowledge-

ments, personally appeared WILLIAM AUSTIN, known to

me to be the person described in and who executed the

foregoing instrument, who acknowledged before me that he

executed the same, that I relied upon the following form of

identification of the above-named person: and

that an oath (was) (was not) taken.

Witness my hand and official seal in the County and

State last aforesaid this day of , 1993.

Notary Signature

Printed Notary Signature

A-22

QUIT-CLAIM DEED

THIS INDENTURE, Made on the day of Septem-

ber A.D., One Thousand Nine Hundred and Ninety-Three by

and beiween CYNTHIA D. AUSTIN, a single person of the

County of Riverside, State of California party of the first part,

and WILLIAM F. AUSTIN, a single person of the County of

Dallas, State of Texas party of the second part, (Mailing

address of said first named grantee is 5334 Harbor Town,

Dallas, Texas 75287).

WITNESSETH, that the said party of the first part, in

consideration of the sum of other good and valuable consider-

ation and Ten DOLLARS, to be paid by the said party of the

second part (the receipt of which is hereby acknowledged)

does by these presents REMISE, RELEASE and FOREVER

QUIT CLAIM unto the said party of the second part, the

following described lots, tracts or parcels of land, lying, being

and situate in the County of Christian and State of Missouri,

to-wit:

All of Lot No. Six (6) of HEDGPETH ESTATES, a

subdivision in Nixa, Christian County, Missouri.

Subject to easements, reservations, and restrictions

of record, taxes and assessments, general and special, not

now due and payable.

This Deed is delivered pursuant to a Decree of

Dissolution of Marriage entered by the Circuit Court of

Dallas County, Texas in case number 92-14835-T.

TO HAVE AND TO HOLD THE SAME, with all the

rights, immunities, privileges and appurtenances thereto be-

longing, unto the said party of the second part and unto his

heirs and assigns forever; so that neither the said party of the

first part nor her heirs nor any other person or persons, for

her or in her name or behalf, shall or will hereinafter claim or

A-23

demand any right or title to the aforesaid premises or any

part thereof, but they and each of them shall, by these

presents, be excluded and forever barred.

IN WITNESS WHEREOF, the said party of the first part

has hereunto set her hand and seal the day and year above

written.

(Seal)

CYNTHIA D. AUSTIN

Signed, Sealed and (Seal)

Delivered in the Presence

(Seal)

EXHIBIT T

A-24

TEXAS ACKNOWLEDGMENT —

UNMARRIED PERSON

STATE OF TEXAS ;

COUNTY OF

On this day of September, 1993 before me, the

undersigned a Notary Public, personally appeared

CYNTHIA D. AUSTIN to me known to be the person de-

scribed in and who executed the foregoing instrument, and

acknowledges that she executed the same as her free act and

deed. And the said CYNTHIA D. AUSTIN further declared

herself to be single and unmarried.

IN TESTIMONY WHEREOF, I have hereunto set my

hand and affixed my official seal at my office in

the day and year last above written.

Notary Public in and for

said County and State.

My term expires eo

A-25

MISSOURI ACKNOWLEDGMENT —

MAN AND WIFE

i) ft

COUNTY OF

On this day of , 19 before me,

a Notary Public, personally appeared

and his wife, to

me known to be the persons described in and who executed

the foregoing instrument, and acknowledged that they

executed the same as their free act and deed.

IN TESTIMONY WHEREOF, I have hereunto set my

hand and affixed my official seal at my office in

the day and year last above written.

Notary Public in and for

said County and State.

My term expires , Saee

A-26

QUIT-CLAIM DEED

FROM

CYNTHIA D. AUSTIN, a single person

WILLIAM F. AUSTIN, a single person

Filed for record this day of

A.D., 19 at o’clock,

minutes, M. Recorded in Book at

Page

Recorder.

Deputy.,

Recorder’s Fee, $

This Document Prepared By

Paden, Welch, Martin & Albano, P.C.

311 West Kansas

Independence, MO 64050

A-27

STATES OP wiicccnenionsttients

COUNTY OF

IN THE RECORDER'S OFFICE

I, , Recorder of said County, do

hereby certify that the within instrument of writing was, at

o’clock and minutes M., on the day of

A.D., 19, duly filed for record in my office, and

is recorded in the records of this office, in book , at

page

IN WITNESS WHEREOF, I have hereunto set my hand

and affixed my official seal at this

day of AD, 19

RECORDER

A-28

DEED

CINDY DAWSON-AUSTIN

Grantor.

WILLIAM F. AUSTIN

Grantee.

Dated: , 1993

Record and return to:

Attention: Ike Vanden Eykel, Esq.

Koons, Fuller & Vanden Eykel

2311 Cedar Springs

Suite 300

Dallas, Texas 75201

A-29

STATE OF NEW JERSEY

AFFIDAVIT OF CONSIDERATION OR EXEMPTION

(c. 49, P.L. 1968)

PARTIAL EXEMPTION

(c. 176, P.L. 1975)

To Be Recorded With Deed Pursuant to c. 49, P.L. 1968, as

amended by c. 225, P.L. 1985 (N.J.S.A. 46:15-5 et seq.)

STATE OF

COUNTY OF

FOR RECORDER’S USE ONLY

Consideration $

Realty Transfer Fee $ ‘4

Date By

* Use symbol “C” to indicate that fee is exclusively for

county use.

(1) PARTY OR LEGAL REPRESENTATIVE (See

Instructions #3, 4 and 5 on reverse side)

Deponent, (Name) CINDY DAWSON-AUSTIN, being

duly sworn according to law upon his/her oath deposes and

says that he/she is the (State whether Grantor, Grantee, Legal

Representative, Corporate Officer, Officer of Title Co.

Lending Institution, etc.) Grantor in a deed dated

, 1993, transferring real property identified as

Block No. 1404 Lot No. 8 located at (Street Address,

Municipality, County) 8 Birchfield Drive East, Township of

Mount Laurel, Burlington County, New Jersey and annexed

hereto.

(2) CONSIDERATION (See Instruction #6)

Deponent states that, with respect to deed hereto

annexed, the actual amount of money and the monetary value

A-30

of any other thing of value constituting the entire compensa-

tion paid or to be paid for the transfer of titlé to the lands,

tenements or other realty, including the remaining amount of

any prior mortgage to which the transfer is subject or which is

to be assumed and agreed to be paid by the grantee and any

other lien or encumbrance thereon not paid, satisfied or

removed in connection with the transfer of title is $ None.

(3) FULL EXEMPTION FROM FEE Deponent claims

that this deed transaction is fully exempt from the Realty

Transfer Fee imposed by c. 49, P.L. 1968, for the following

reason(s): Explain in detail. (See Instruction #7.) Mere refer-

ence to exemption symbol is not sufficient.

(p) Recorded within 90 days following the entry of

a divorce decree which dissolves the marriage between

the grantor and grantee

(4) PARTIAL EXEMPTION FROM FEE NOTE: All

boxes below apply to grantor(s) only. ALL BOXES IN AP-

PROPRIATE CATEGORY MUST BE CHECKED. Failure to

do so will void claim for partial exemption. (See Instruc-

tions #8 and #9)

Deponent claims that this deed transaction is exempt

from the increased portion of the Realty Transfer Fee imposed

by c. 176, P.L. 1975 for the following reasons:

a) SENIOR CITIZEN (See Instruction #8)

C) Grantor(s) 62 yrs. of age or over.*

C) One or two-family residential premises.

LJ Owned and occupied by grantor(s) at time of

sale.

CJ) No joint owners other than spouse or other

qualified exempt owners.

A-31

b) BLIND (See Instruction #8)

©) Grantor(s) legally blind.*

( One or two-family residential premises.

1 Owned and occupied by grantor(s) at time of

sale.

1 No joint owners other than spouse or other

qualified exempt owners.

DISABLED (See Instruction #8)

( Grantor(s) permanently and totally disabled.*

C1) One or two-family residential premises.

C) Receiving disability payments.

(1) Owned and occupied by grantor(s) at time of

sale.

O) Not gainfully employed.

1 No joint owners other than spouse or other

qualified exempt owners.

* IN THE CASE OF HUSBAND AND WIFE, ONLY ONE

GRANTOR NEED QUALIFY.

c) LOW AND MODERATE INCOME HOUSING

(See Instruction #8)

O Affordable According to H.U.D. Standards.

1) Meets Income Requirements of Region.

C) Reserved for Occupancy.

C1) Subject to Resale Controls.

d) NEW CONSTRUCTION (See Instruction #9)

©) Entirely new improvement.

() Not previously used for any purpose.

Deponent makes this Affidavit to induce the County

Clerk or Register of Deeds to record the deed and accept the

fee submitted herewith in accordance with the provisions of

c. 49, P.L. 1968.

Subscribed and Sworn to before me this {ILLEGIBLE}.

A-32

IMPORTANT — BEFORE COMPLETING THIS AFFI-

DAVIT, PLEASE READ THE INSTRUCTIONS ON THE

REVERSE SIDE HEREOF.

This form is prescribed by the Director, Division of

Taxation in the Department of the Treasury, as required by

law, and may not be altered or amended without the approval

of the Director.

ORIGINAL — White copy to be retained by County.

DUPLICATE — Yellow copy to be forwarded by County

to Division of Taxation on partial exemption from fee

(N.J.A.C. 18:16 — 8.12).

TRIPLICATE — Pink copy is your file copy.

WHITE AND YELLOW COPIES MUST BE SUBMITTED

WITH DEED TO COUNTY RECORDING OFFICER

EXHIBIT X

A-33 ~

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, aka Cindy Dawson Austin, a single person, as Grantor

(whether one or more), hereby conveys and quitclaims to

William F. Austin, a single person, as Grantee (whether one

or more), real property in Hennepin County, Minnesota,

described as follows:

Units Nos. RD 406 and GD 62, Condominium

No. 496, Fountain Woods II, a Condominium located in

the County of Hennepin. Pursuant to the Declaration

Document No. 1604642 and the by-laws Document

No. 1604643.

Subject to restrictions, reservations and easements

of record, if any.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

A-34

(2) Grantor has not made, done, executed or

suffered any act or thing whereby the above-described

property or any part thereof, now or at any time

hereafter, shall or may be imperiled, charged or

incumbered in any manner, and Grantor will warrant the

title to the above-described property against all persons

claiming the same from or through Grantor as a result of

any such act or thing, EXCEPT: the lien of all unpaid

special assessments and therein thereon; and all liens and

restrictions of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT D

pe =

A-35

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Units Nos. RA319 and GA37, Condominium

No. 287, Fountain Woods, a Condominium located in the

County of Hennepin; pursuant to the Declaration

Document No. 1566985 and the Bylaws Document

No. 1566986;

Subject to the provisions, restrictions, obligations

and easements as set forth in said Declaration Document

No. 1566985 and Bylaws Document No. 1566986;

Subject to easements for ingress, egress, utility and

use of swimming pool and tennis court and uses related

thereto for the benefit of the North 426.50 feet of

Outlot C, Walnut Ridge Third Addition and together

with easements for utility purposes over the |

North 426.50 feet of said Outlot C for the benefit of the [

land in said Condominium No. 287, all as created in

A-36

Declaration of Easements Document No. 1550710. Files

of the Registrar of Titles; (See Inst).

Subject to the provisions of Minnesota Uniform

Condominium Act, Minnesota Statutes 1980, Chap-

ter 515A and Acts Amendatory thereof.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

A-37

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

STATE OF

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT C

A-38

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Unit Nos. RA219 and GA22. Condominium

No. 287, Fountain Woods, a Condominium located in the

County of Hennepin; pursuant to the Declaration

Document No. 1566985 and the Bylaws Document

No. 1566986.

Subject to the provisions, restrictions, obligations

and easements as set forth in said Declaration Document

No. 1566985 and Bylaws Document No. 1566986;

Subject to easements for ingress, egress, utility and

use of swimming pool and tennis court and ues related

thereto for the benefit of the North 426.50 feet of

Outlot C, Walnut Ridge Third Addition and together

with easements for utility purposes over the

North 426.50 feet of said Outlot C for the benefit of the

land in said Condominium No. 287, all as created in

A-39

Declaration of Easements Document No. 1550710. Files :

of the Registrar of Titles; (See Inst).

Subject to the provisions of Minnesota Uniform

Condominium Act, Minnesota Statutes 1980,

Chapter 515A and Acts Amendatory thereof.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or

suffered any act or thing whereby the above-described

property or any part thereof, now or at any time

hereafter, shall or may be imperiled, charged or

incumbered in any manner, and Grantor will warrant the

title to the above-described property against all persons

claiming the same from or through Grantor as a result of

any such act or thing, EXCEPT: the lien of all unpaid

special assessments and therein thereon; and all liens and

restrictions of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

A-40

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

STATE OF

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT B

A-4]

SCHEDULE A

KNOWN AND DESIGNATED as Lot 8, Block 404 on

“Plan of Phase One, Section 1 and 2 of Birchfield”, said map

filed in the Burlington County Clerk’s Office on May 14,

1973, as map No. 01709.

BEING further described as follows in accordance with a

survey made by Robins Associates, dated June 24, 1985:

BEGINNING at a point between Lots 8 and 9 a party

wall as noted on Plan of Birchfield Sections 1 and 2,

Map 01709; thence

(1) South 52 degrees 01 minutes 15 seconds West,

a distance of 27.02 feet to a point between Lots 9 and an

open space; thence

(2) South 35 degrees 40 minutes 00 seconds East, a

distance of 93.01 to a point; thence

(3) North 54 degrees 20 minutes 00 seconds East, a

distance of 27.00 feet to a point between Lots 8 and 9;

thence

(4) North 35 degrees 4) minutes 00 seconds West a

distance of 91.92 feet to the point and place of

BEGINNING.

ALSO BEING known as 8 Birchfield Drive East, Mount

Laurel, New Jersey.

BEING the same premises conveyed to William F.

Austin and Cindy Dawson-Austin, his wife, by deed dated

July 24, 1985 from Rafael Ortega-Maggi and Lottie H.

Ortega-Maggi, his wife, which was recorded in the Office of

the Clerk of Burlington County on July 31, 1985 in Deed

Book 3042, Page 258.

A-42

GRANTOR hereby relinquishes and conveys to the

Grantee all -right, title and interest in and to the subject

property.

THIS conveyance is in accordance with a judgment of

divorce granted by the State of Texas dissolving the marriage

of Grantor and Grantee.

A-43

Promises by Grantor. The Grantor promises that the

Grantor has done no act to encumber the property. This

promise is called a “‘covenant as to grantor’s acts” (N.J.S.A.

46:4-6). This promise means that the Grantor has not allowed

anyone else to obtain any legal rights which affect the

property (such as by making a mortgage or allowing a

judgment to be entered against the Grantor).

Signatures. The Grantor signs this Deed as of the date

at the top of the first page.

Witnessed by: (Seal)

CINDY DAWSON-AUSTIN

(Seal)

Name:

STATE OF , COUNTY OF $S::

I CERTIFY that on , 1993 CINDY DAWSON-

AUSTIN personally came before me and acknowledged under

oath, to my satisfaction, that this person (or if more than one,

each person):

(a) is named in and personally signed this Deed;

(b) signed, sealed and delivered this Deed as his or

her act and deed; and

consideration paid or to be paid for the transfer of title.

(Such consideration is defined in N.J.S.A. 46:15-5.)

(Print name and title below signature)

Notary Public, State of

My Commission Expires:

A-44

DEED

Prepared by: (Print signer’s name below signature)

This Deed is made on , 1993,

BETWEEN CINDY DAWSON-AUSTIN whose address is

70661 Oroville Circle, Rancho Mirage, California 92270

referred to as the Grantor, AND WILLIAM F. AUSTIN

whose post office address is 5334 Harbor Town, Dallas, Texas

75287 referred to as the Grantee. The words “Grantor” and

“Grantee” shall mean all Grantors and all Grantees listed

above.

Transfer of Ownership. The Grantor grants and

conveys (transfers ownership of) the property described below

to the Grantee. This transfer is made pursuant to a judgment

of divorce.

Tax Map Reference. (N.J.S.A. 46:15-2.1) Municipality

of Mount Laurel, Block No. 1404, Lot No. 8, Account

No.

() No property tax identification number is available on the

date of this deed. (Check box if applicable.)

Property. The property consists of the land and all the

buildings and structures on the land in the Township of Mount

Laure] County of Burlington and State of New Jersey. The

legal description is:

SEE SCHEDULE A ATTACHED HERETO AND

MADE A PART HEREOF.

A-45

warrant and forever defend all and singular the property to

Grantee and Grantee’s heirs, executors, administrators,

successors, and assigns against every person whomsoever

lawfully claiming or to claim the same or any part thereof,

except as to the reservations from and exceptions to

conveyance and warranty, when the claim is by, through, or

under Grantor but not otherwise.

When the context requires, singular nouns and pronouns

include the plural.

Grantee assumes all ad valorem taxes due on the

property for the current year.

Executed this day of , 1993.

CYNTHIA LEE DAWSON-

AUSTIN, Grantor

(Acknowledgment)

STATE OF

COUNTY OF

This instrument was acknowledged before me on the

day of , 1993, by CYNTHIA LEE DAWSON-

AUSTIN.

Notary Public,

Notary’s name (printed):

Notary’s commission expires:

AFTER RECORDING RETURN TO:

William Franklin Austin

5334 Harbor Town

Dallas, Texas 75287

A-46

DEED OF TRUST TO SECURE ASSUMPTION

Date: September , 1993

Grantor: William Franklin Austin

Grantor’s Mailing Address: 5334 Harbor Town, Dallas,

Collin County, Texas 75287

Trustee: Kenneth Raggio

Trustee’s Mailing Address: 3316 Oak Grove Ave.,

Suite 100, Dallas, Texas 75204

Beneficiary: Cynthia Lee Dawson-Austin

Beneficiary’s Mailing Address: 70661 Oroville Circle,

Rancho Mirage, Riverside County, California 92270

‘vote and Deed of Trust Assumed

Date: April 30, 1992

Amount: $700,000.00

Maker and Grantor: William Franklin Austin

Payee and Beneficiary: North Park National Bank

Recording Information:

Property (including any improvements):

Lot 13, Block 1/8756 of Bent Tree North, an

addition to the City of Dallas, Collin County, Texas,

according to the plat thereof, recorded in Volume 8,

Page 138, Map Records, Collin County, Texas,

Certificate of Correction filed November 20, 1978,

recorded in Volume 1144, Page 789 Deed Records,

Collin County, Texas and filed in Dallas County in

Volume 78053, Page 1968 Deed Records, Dallas County,

Texas.

Prior Lien: None

A-47

Other Exceptions to Conveyance and Warranty: None

By deed dated the same as this instrument, Beneficiary

conveyed the property to Grantor, who as part of the

consideration promised to pay the note assumed and to be

bound by the deed of trust assumed. Beneficiary has retained

a vendor’s lien.

For value received and to secure Grantor’s assumption,

Grantor conveys the property to Trustee in trust. Grantor

warrants and agrees to defend the title to the property. If

Grantor performs all the covenants of the note and deed of

trust assumed and if Beneficiary has not filed a notice of

advancement, a release of the deed of trust assumed shall

release this deed of trust to secure assumption and

Beneficiary’s vendor’s lien.

Beneficiary’s Rights

1. Beneficiary may appoint in writing a substitute or

successor trustee, succeeding to all rights and responsibilities

of Trustee.

2. If Grantor fails to perform any of Grantor’s

obligations under the note or deed of trust assumed,

Beneficiary may perform those obligations, advance funds

required, and then be reimbursed by Grantor on demand for

any sums so advanced, including attorney’s fees, plus interest

on those sums from the dates of payment at the highest legal

rate. The sum to be reimbursed shall be secured by this deed

of trust to secure assumption.

3. Beneficiary may file a sworn notice of such

advancement in the office of the county clerk where the

property is located. The notice shall detail the dates, amounts,

and purposes of the sums advanced anid the legal description

of the property.

A-48 .

4. If Grantor fails on demand to reimburse Beneficiary

for the sums advanced, and such failure continues after

Beneficiary gives Grantor notice of the failure and the time

within which it must be cured, as may be required by law or

by written agreement, then Beneficiary may:

a. request Trustee to foreclose this lien, in which

case Beneficiary or Beneficiary’s agent shall give notice

of the foreclosure sale as provided by the Texas Property

Code as then amended; and

b. purchase the property at any foreclosure sale by

offering the highest bid and then have the bid credited to

the reimbursement of Beneficiary.

Trustee’s Duties

If requested by Beneficiary to foreclose this lien, Trustee

shall:

1. either personally or by agent give notice of the

foreclosure sale as required by the Texas Property Code as

then amended;

2. sell and convey all or part of the property to the

highest bidder for cash with a general warranty binding

Grantor, subject to prior liens and to other exceptions to

conveyance and warranty; and

3. from the proceeds of the sale, pay, in this order:

a. expenses of foreclosure, including a commission

to Trustee of 5% of the bid;

b. to Beneficiary, the full amount advanced,

attorney’s fees, and other charges due and unpaid;

c. any amounts required by law to be paid before

payment to Grantor; and

d. to Grantor, any balance.

A-49

General Provisions

1. If any of the property is sold under this deed of trust,

Grantor shall immediately surrender possession to the

purchaser. If Grantor fails to do so, Grantor shall become a

tenant at sufferance of the purchaser, subject to an action for

forcible detainer.

2. Recitals in any Trustee’s deed conveying the property

will be presumed to be true.

3. Proceeding under this deed of trust to secure

assumption, filing suit for foreclosure, or pursuing any other

remedy will not constitute an election of remedies.

4. This lien shall be superior to liens later created even if

Beneficiary has made no advancements when later liens are

created.

5. If any portion of the advancements cannot be lawfully

secured by this deed of trust to secure assumption, payments

shall be applied first to discharge that portion.

6. No sale under this deed of trust to secure assumption

shall extinguish the lien created by this instrument.

7. Grantor assigns to Beneficiary absolutely, not only as

collateral, all present and future rent and other income and

receipts from the property. Leases are not assigned. Grantor

warrants the validity and enforceability of the assignment.

Grantor may as Beneficiary’s licensee collect rent and other

income and receipts as long as Grantor is not in default under

the note or the deed of trust assumed. Grantor will apply all

rent and other income and receipts to payment of the note and

performance of the deed of trust assumed, but if the rent and

other income and receipts exceed the amount due under the

note and deed of trust assumed, Grantor may retain the

excess. If Grantor defaults in payment of the note or

A-50

performance of the deed of trust assumed, Beneficiary may

terminate Grantor’s license to collect and then as Grantor’s

agent may rent the property if it is vacant and collect all rent

and other income and receipts. Beneficiary neither has nor

assumes any obligations as lessor or landlord with respect to

any occupant of the property. Beneficiary may exercise Bene-

ficiary’s rights and remedies under this paragraph without

taking possession of the property. Beneficiary shall apply all

rent and other income and receipts collected under this

paragraph first to expenses incurred in exercising Benefici-

ary’s rights and remedies and then to Grantor’s obligations

under the note and deed of trust assumed in the order

determined by Beneficiary. Beneficiary is not required to act

under this paragraph, and acting under this paragraph does not

waive any of Beneficiary’s other rights or remedies. If Grantor

becomes a voluntary or involuntary bankrupt, Beneficiary’s

filing a proof of claim in bankruptcy will be tantamount to the

appointment of a receiver under Texas law.

8. Interest on the debt secured by this deed of trust to

secure assumption shall not exceed the maximum amount of

nonusurious interest that may be contracted for, taken, re-

served, charged, or received under law; any interest in excess

of that maximum amount shall be credited on the principal of

the debt or, if that has been paid, refunded. On any accelera-

tion or required or permitted prepayment, any such excess

shall be canceled automatically as of the acceleration or

prepayment or, if already paid, credited on the principal of the

debt or, if the principal of the debt has been paid, refunded.

This provision overrides other provisions in this and all other

instruments concerning the debt.

9. When the context requires, singular nouns and pro-

nouns include the plural.

A-51

10. This deed of trust to secure assumption shall bind,

inure to the benefit of, and be exercised by successors in

interest of all parties.

William Franklin Austin,

Grantor

A-52

(Acknowledgment)

STATE OF TEXAS

COUNTY OF DALLAS

This instrument was acknowledged before me on the

day of , 1993, by William Franklin Austin.

Notary Public,

Notary’s name (printed):

Notary’s commission expires:

AFTER RECORDING RETURN TO:

Cynthia Lee Dawson Austin

70661 Oroville Circle

Rancho Mirage, Riverside County, California 92270

A-53

AFTER RECORDING, RETURN TO:

Ike Vanden Eykel, Esq.

Koons, Fuller & Vanden Eykel

2311 Cedar Springs, Suite 300

Dallas, Texas 75201

OREGON STATUTORY BARGAIN AND SALE DEED

CINDY DAWSON-AUSTIN, Grantor, conveys to WIL-

LIAM F. AUSTIN, Grantee, the following described real

property situated in Lane County, Oregon, to-wit:

Beginning at the galvanized iron pipe and bronze

disk marking the meander corner on the south shore of

Mercer Lake on the east line of Section 36, Township 17

South, Range 12 West of the Willamette Meridian, said

corer being described by General Land Office Depen-

dent Survey as bearing North 1° 15’ West 29.02 chains

from the southeast corner of said Section 36; thence

North 89° 29’ West 1754.1 feet to a pipe on the east

margin of Lakewood Avenue; thence North 7° 08’ West

323.1 feet along the East line of Lakewood Avenue to a

point on the projection of the southerly line of Pine

Street; thence South 83° 45’ West 404.3 feet along the

southerly line of Pine Street to a point marked by an iron

pipe, said point being true point of beginning; run thence

South 7° 08’ East 132 feet to a point on the shore line of

Mercer Lake; thence west along the shore of Mercer

Lake to a point 70 feet west of the last mentioned point;

thence North 7° 08’ West 132 feet more or less to the

south line of Pine Street; thence North 83° 45’ East

along the south line of Pine Street to the true point of

beginning; in Lane County, Oregon.

EXHIBIT R

A-54

The true consideration for this conveyance is compliance

with Decree of Dissolution of Marriage.

Until a change is requested, all tax statements are to be

sent to the following address:

William F, Austin

$334 Harbor Town

Dallas, Texas 75287

THIS INSTRUMENT WILL NOT ALLOW USE OF

THE PROPERTY DESCRIBED IN THIS INSTRUMENT IN

VIOLATION OF APPLICABLE LAND USE LAWS AND

REGULATIONS. BEFORE SIGNING OR ACCEPTING

THIS INSTRUMENT, THE PERSON ACQUIRING FEE

TITLE TO THE PROPERTY SHOULD CHECK WITH THE

APPROPRIATE CITY OR COUNTY PLANNING DEPART-

MENT TO VERIFY APPROVED USES.

DATED this day of , 1993.

Cindy Dawson-Austin

NaN Te re 1

A-55

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of , 1993, by Cindy Dawson-Austin,

who personally appeared and is personally known to me or

proved to me on the basis of satisfactory evidence to be the

person whose name is subscribed to this instrument, and

acknowledged that she executed it.

Witness my hand and official seal.

Notary Public for

My commission

Expires:

A-56

FOR VALUABLE CONSIDERATION, Cynthia Daw-

son-Austin, a single person, as Grantor (whether one or

more), hereby conveys and quitclaims to William F. Austin, a

single person, as Grantee (whether one or more), real property

in Hennepin County, Minnesota, described as follows:

Lot 2, Block 3, Parkwood Knolls 19th Addition,

according to the plat thereof on file and of record in the

office of the Registrar of Titles, in and for Hennepin

County, Minnesota.

Restrictions, covenants and conditions dated

May 22, 1975, filed May 27, 1975 as Document

No. 1140572.

Utility easement over 10 feet adjoining street as

shown on recorded plat. Utility easement over rear, front

and side 5 feet where necessary as reserved in Document

No. 1140572.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

A-57

Affix Deed Tax Stamp Here

Cynthia Dawson-Austin

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT S

A-58

whose post office address is 5334 Harbor Town, Dallas, Texas

75287 referred to as the Grantee. The words “Grantor” and

“Grantee” shall mean all Grantors and all Grantees listed

above.

Transfer of Ownership. The Grantor grants and con-

veys (transfers ownership of) the property described below to

the Grantee. This transfer is made pursuant to a judgment of

divorce.

Tax Map Reference. (N.J.S.A. 46:15-2.1) Municipality

of Mount Laurel, Block No. 1404, Lot No. 8, Account No.

C) No property tax identification number is available on the

date of this deed. (Check box if applicable.)

Property. The property consists of the land and all the

buildings and structures on the land in the Township of Mount

Laurel County of Burlington and State of New Jersey. The

legal description is:

SEE SCHEDULE A ATTACHED HERETO AND

MADE A PART HEREOF.

EXHIBIT X

A-59

PERSON ACQUIRING FEE TITLE TO THE PROP-

ERTY SHOULD CHECK WITH THE APPROPRIATE CITY

OR COUNTY PLANNING DEPARTMENT TO VERIFY

APPROVED USES.

DATED this day of , 1993.

Cindy Dawson Austin

STATE OF

County of

The foregoing instrument was ac.nowledged before me

this day of , 1993, by Cindy Dawson Austin,

who personally appeared and is personally known to me or

proved to me on the basis of satisfactory evidence to be the

person whose name is subscribed to this instrument, and

acknowledged that she executed it.

Witness my hand and official seal.

Notary Public

for

My Commission

Expires:

A-60

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

—

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Units Nos. RA419 and GA38, Condominium

No. 287, Fountain Woods, a Condominium located in the

County of Hennepin; pursuant to the Declaration Docu-

ment No. 1566985 and the Bylaws Document

No. 1566986;

Subject to the provisions, restrictions, obligations

and easements as set forth in said Declaration Document

No. 1566985 and Bylaws Document No. 1566986;

Subject to easements for ingress, egress, utility and

use of swimming pool and tennis court and uses related

thereto for the benefit of the North 426.50 feet of

Outlot C, Walnut Ridge Third Addition and together

with easements for utility purposes over the North

426.50 feet of said Outlot C for the berrefirof the land in

said Condominium No. 287, all as created in Declaration

A-61

of Easements Document No. 1550710. Files of the

Registrar of Titles; (See Inst.).

Subject to the provisions of Minnesota Uniform

Condominium Act, Minnesota Statutes 1980, Chap-

ter 515A and Acts Amendatory thereof.

The consideration for this transfer is less than $500.

Grantor certifres that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the titie to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

A-62

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale I ake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT E

A-63

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Residential Unit No. RC109 and Garage Unit

No. GC64 in Fountain Woods II, a Condominium, Con-

dominium No. 496, located at 6730 Vernon Avenue,

Edina, Minnesota, on land legally described as follows:

The north 426.5 feet of Outlot C, Walnut Ridge Third

Addition according to the plat thereof on file in the office

of the Registrar of Titles, Hennepin County, Minnesota.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(i) This Deed conveys after-acquired title; and

A-64

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT F

A-65

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Residential Unit No. RD119 and Garage Unit

No. GD17 in Fountain Woods II, a Condominium, Con-

dominium No. 496, located at 6670 Vernon Avenue,

Edina, Minnesota, on land legally described as follows:

The north 426.5 feet of Outlot C, Walnut Ridge Third

Addition according to the plat thereof on file in the office

of the Registrar of Titles, Hennepin County, Minnesota.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

A-66

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF

COUNTY OF —__

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT G

A-67

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Units RD 209 and GD 58, Condominium No. 496,

Fountain Woods II, a Condominium located in the

County of Hennepin; pursuant to the Declaration Docu-

ment No. 1604642 and the Bylaws Document

No. 1604643.

Subject to the provisions, restrictions, obligations

and easements as set forth in the Declaration Document

No. 1604642 and the Bylaws document No. 1604643;

Subject to the provisions of Minnesota Uniform

Condominium Act, Minnesota Statutes 1980, Chap-

ter 5ISA and Acts Amendatory thereof;

Subject to and together with Declaration of Ease-

ments Document No. 1550710 as determined by Court

Order Document No. 1604641.

A-68

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

A-69

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT H

A-70

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Residential Unit No. RD409 and Garage Unit

No. GDS57 in Fountain Woods II, a Condominium, Con-

dominium No. 496, located at 6670 Vernon Avenue,

Edina, Minnesota, on land legally described as follows:

The north 426.5 feet of Outlot C, Walnut Ridge Third

Addition according to the plat thereof on file in the office

of the Registrar of Titles, Hennepin County, Minnesota.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

A-71

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF

COUNTY OF

The foregoing instrument. was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT I

A-72

No delinquent taxes and transfer entered; Certificate of Real

Estate Value( ) filed( =) mot required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Unit Nos. RD 419 and GD 18. Condominium

No. 496, Fountain Woods II, a Condominium located in

the County of Hennepin; pursuant to the Declaration

Document No. 1604642 and the Bylaws Document

No. 1604643.

Subject to the provisions, restrictions, obligations

and easements as set forth in the Declaration Document

No. 1604642 and the Bylaws Document No. 1604643;

Subject to the provisions of Minnesota Uniform

Condominium Act, Minnesota Statutes 1980, Chap-

ter 5ISA and Acts Amendatory thereof;

Subject to and together with Declaration of Ease-

ments Document No. 1550710 as determined by Court

Order Document No. 1604641.

A-73

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

A-74

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT J

A-75

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September _ , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

Hennepin County, Minnesota, described as follows:

Residential Unit No. RC219 and Garage Unit

No. GC12 in Fountain Woods II, a Condominium, Con-

dominium No. 496, located at 6730 Vernon Avenue,

Edina, Minnesota, on land legally described as follows:

The north 426.5 feet of Outlot C, Walnut Ridge Third

Addition according to the plat thereof on file in the office

.of the Registrar of Titles, Hennepin County, Minnesota.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

A-76

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

COUNTY OF

STATE OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT K

A-77

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, aka Cindy Dawson Austin, a single person, as Grantor

(whether one or more), hereby conveys and quitclaims to

William F. Austin, a single person, as Grantee (whether one

or more), real property in Hennepin County, Minnesota,

described as follows:

Lots 25, 26, and 27, “Wilcox Old Orchard Addi-

tion, Hennepin County, Minnesota’’.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

A-78

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT 7

A-79

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

, 19

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, aka Cynthia Lee Dawson, a single person, as Grantor

(whether one or more), hereby conveys and quitclaims to

William F. Austin, a single person, as Grantee (whether one

or more), real property in Hennepin County, Minnesota,

described as follows:

Lot 17, Block 3, Beachside.

Subject to Declaration of covenants, easements,

restrictions contained in Document No. 1300115, and

easements for driveway in Document No. 1300116.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

A-80

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF ;

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT M

A-81

No delinquent taxes and transfer entered; Certificate of Real

Estate Value ( ) filed ( ) not required

Certificate of Real Estate Value No.

County Auditor

Deputy

STATE DEED TAX DUE HEREON: $1.65

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, aka Cindy Dawson Austin, a single person, as Grantor

(whether one or more), hereby conveys and quitclaims to

William F. Austin, a single person, as Grantee (whether one

or more), real property in McLeod County, Minnesota, de-

scribed as follows:

Lot 6 and 7, Block 68 in the Town of Franklin in

McLeod County, Minnesota.

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

property or any part thereof, now or at any time hereaf-

ter, shall or may be imperiled, charged or incumbered in

A-82

any manner, and Grantor will warrant the title to the

above-described property against all persons claiming the

same from or through Grantor as a result of any such act

or thing, EXCEPT: the lien of all unpaid special assess-

ments and therein thereon; and all liens and restrictions

of record.

Affix Deed Tax Stamp Here

Cynthia Dawson Austin

STATE OF

COUNTY OF

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT N

A-83

DEED

Prepared by (Print signer’s name below signature)

This Deed is made on , 1993, BETWEEN

CYNTHIA AUSTIN whose address is 70661 Oroville Circle,

Rancho Mirage, California 92270 referred to as the Grantor,

AND WILLIAM F. AUSTIN whose post office address is

5334 Harbor Town, Dallas, Texas 75287 referred to as the

Grantee. The words “Grantor’’ and “‘Grantee”’ shall mean all

Grantors and all Grantees listed above.

Transfer of Ownership. The Grantor grants and con-

veys (transfers ownership of) the property described below to

the Grantee. This transfer is made pursuant to a judgment of

divorce.

Tax Map Reference. (N.J.S.A. 46:15-2.1) Municipality

of Cherry Hill, Block No. 337.99, Lot No. 601, Account

No.

(©) No property tax identification number is available on the

date of this deed. (Check box if applicable.)

Property. The property consists of the land and all the

buildings and structures on the land in the Township of Cherry

Hill, County of Camden and State of New Jersey. The legal

description is:

SEE SCHEDULE A ATTACHED HERETO AND

MADE A PART HEREOF.

EXHIBIT O

A-84

Promises by Grantor. The Grantor promises that the

Grantor has done no act to encumber the property. This

promise is called a “covenant as to grantor’s acts”

(N.J.S.A. 46:4-6). This promise means that the Grantor has

not allowed anyone else to obtain any legal rights which affect

the property (such as by making a mortgage or allowing a

judgment to be entered against the Grantor).

Signatures. The Grantor signs this Deed as of the date

at the top of the first page.

Witnessed by: (Seal)

CYNTHIA AUSTIN

(Seal)

Name:

STATE OF , COUNTY OF 2S.

I CERTIFY that on , 1993, CYNTHIA

AUSTIN personally came before me and acknowledged under

oath, to my satisfaction, that this person (or if more than one,

each person):

(a) is named in and personally signed this Deed;

(b) signed, sealed and delivered this Deed as his or

her act and deed; and

A-85

_ (c) made this Deed for $ None as the full and

actual consideration paid or to be paid for the transfer of

title. (Such consideration is defined in N.J.S.A. 46:15-5.)

(Print name and title below Signature)

Notary Public, State of

My Commission Expires:

A-86

SCHEDULE A

BEING Unit No. 601 as shown in Exhibit B-4 of the

Master Deed creating and establishing Kings Croft Ill, a

Condominium, as provided by the Condominium Act of the

State of New Jersey (P.L. 1969, c. 257, effective January 7,

1970) given by Bob Scarborough, Inc., (Corp. NJ), under date

of October 31, 1978 and recorded in the Register of Deeds

Office of Camden County on November 15, 1978 in Deed

Book 3601, Page 745, and also the undivided .00788 of the

Common Elements appertaining to said Unit, as shown in

Exhibit “D” of said Master Deed.

SUBJECT to the provisions of the Condominium Act of

the State of New Jersey (R.S. 46:8B-1, et seq.), its supple-

ments and amendments, and to the conditions, restrictions,

covenants and agreements as set forth in the said Master

Deed, including the By-laws of Kings Croft III, a Condomin-

ium, and any amendments thereto.

BEING known and designated as Block 337.99, Lot 601

on the official tax maps of the Township of Cherry Hill,

Camden County, New Jersey.

BEING ALSO known and designated as 601 Kings

Croft, Cherry Hill, New Jersey.

BEING the same premises conveyed to William F.

Austin and Cynthia Austin, husband and wife, by deed dated

March 9, 1984 from Martin A. Finkel and Bonnie Bazilian

Finkel, his wife, which was recorded in the Office of the

Deed Book 3956, Page 779.

GRANTOR hereby relinquishes and conveys to the

Grantee all right, title and interest in and to the subject

property.

A-87

THIS conveyance is in accordance with a judgment of

divorce granted by the State of Texas dissolving the marriage

of Grantor and Grantee.

A-88

STATE OF NEW JERSEY

AFFIDAVIT OF CONSIDERATION OR EXEMPTION

(c. 49, P.L. 1968)

PARTIAL EXEMPTION

(c. 176, P.L. 1975)

To Be Recorded With Deed Pursuant to c. 49, P.L. 1968, as

amended by c. 225, P.L. 1985 (N.J.S.A. 46:15-5 et seq.)

STATE OF

COUNTY OF

FOR RECORDER’S USE ONLY

Consideration $

Realty Transfer Fee $ .

Date By

* Use symbol ““C” to indicate that fee is exclusively for

county use.

(1) PARTY OR LEGAL REPRESENTATIVE (See In-

structions #3, 4 and 5 on reverse side)

Deponent, (Name) CYNTHIA AUSTIN, being duly

swom according to law upon his/her oath deposes and says

that she is the (State whether Grantor, Grantee, Legal Repre-

sentative, Corporate Officer, Officer of Title Co. Lending

Institution, etc.) Grantor in a deed dated , 1993,

transferring real property identified as Block No. 337.99 Lot

No. 601 located at (Street Address, Municipality, County)

601 Kings Croft, Township of Cherry Hill, Camden County,

New Jersey and annexed hereto.

(2) CONSIDERATION (See Instruction #6)

Deponent states that, with respect to deed hereto an-

nexed, the actual amount of money and the monetary value of

any other thing of value constituting the entire compensation

A-89

paid or to be paid for the transfer of title to the lands,

tenements or other realty, including the remaining amount of

any prior mortgage to which the transfer is subject or which is

to be assumed and agreed to be paid by the grantee and any

other lien or encumbrance thereon not paid, satisfied or

removed in connection with the transfer of title is $ None

(3) FULL EXEMPTION FROM FEE Deponent claims

that this deed transaction is fully exempt from the Realty

Transfer Fee imposed by c. 49, P.L. 1968, for the following

reason(s): Explain in detail. (See Instruction #7.) Mere refer-

ence to exemption symbol is not sufficient.

(p) Recorded within 90 days following the entry of

a divorce decree which dissolves the marriage between

the grantor and grantee.

(4) PARTIAL EXEMPTION FROM FEE NOTE: Ail

boxes below apply to grantor(s) only. ALL BOXES IN AP-

PROPRIATE CATEGORY MUST BE CHECKED. Failure to

do so will void claim for partial exemption. (See Instruc-

tions #8 and #9)

Deponent claims that this deed transaction is exempt

from the increased portion of the Realty Transfer Fee imposed

by c. 176, P.L. 1975 for the following reason(s):

a) SENIOR CITIZEN (See Instruction #8)

C) Grantor(s) 62 yrs. of age or over.*

C One or two-family residential premises.

C) Owned and occupied by grantor(s) at time of

sale.

[J No joint owners other than spouse or other

qualified exempt owners.

b) BLIND (See Instruction #8)

C) Grantor(s) legally blind.*

C) One or two-family residential premises.

A-90

C) Owned and occupied by grantor(s) at time of

sale.

©) No joint owners other than spouse or other

qualified exempt owners.

DISABLED (See Instruction #8)

O) Grantor(s) permanently and totally disabled.*

C) One or two-family residential premises.

O) Receiving disability payments.

CJ) Owned and occupied by grantor(s) at time of

sale.

O) Not gainfully employed.

OQ) No joint owners other than spouse or other

qualified exempt owners.

* IN THE CASE OF HUSBAND AND WIFE, ONLY ONE

GRANTOR NEED QUALIFY.

c) LOW AND MODERATE INCOME HOUSING

(See Instruction #8)

OQ) Affordable According to H.U.D. Standards.

CJ Meets Income Requirements of Region.

C) Reserved for Occupancy.

CO) Subject to Resale Controls.

d) NEW CONSTRUCTION (See Instruction #9)

O) Entirely new improvement.

C) Not previously used for any purpose.

C) Not previously occupied.

Deponent makes this Affidavit to induce the County

Clerk or Register of Deeds to record the deed and accept the

fee submitted herewith in accordance with the provisions of

c. 49, P.L. 1968.

Subscribed and Swom to before me this day of

, 1993.

A-91

CYNTHIA AUSTIN

Name of Deponent Name of Grantor

(sign above line) (type above line)

70661 Oroville Circle 70661 Oroville Circle

Rancho Mirage, CA 92270 Rancho Mirage, CA 92270

Address of Deponent Address of Grantor at Time

of Sale

FOR OFFICIAL USE ONLY

This space for use of County Clerk or Register of Deeds.

Instrument Number County

Deed Number ________ Book _________ Page

Deed Dated Date Recorded

IMPORTANT — BEFORE COMPLETING THIS AFFI-

DAVIT, PLEASE READ THE INSTRUCTIONS ON THE

REVERSE SIDE HEREOF.

This form is prescribed by the Director, Division of

Taxation in the Department of the Treasury, as required by

law, and may not be altered or amended without the approval

of the Director.

ORIGINAL — White copy to be retained by County.

DUPLICATE — Yellow copy to be forwarded by County

to Division of Taxation on partial exemption from fee

(N.J.A.C. 18:16 — 8.12).

TRIPLICATE — Pink copy is your file copy.

EXHIBIT O

A-92

Date: September , 1993

FOR VALUABLE CONSIDERATION, Cynthia Dawson

Austin, a single person, as Grantor (whether one or more),

hereby conveys and quitclaims to William F. Austin, a single

person, as Grantee (whether one or more), real property in

McLeod County, Minnesota, described as follows:

That part of the West Half of the West Half of the

Northeast Quarter of Section 18, Township 115,

Range 27, McLeod County, Minnesota described as

follows:

Commencing on the north-south quarter line

456.5 feet North of the center of said Section 18, said

point being on the northerly right-of-way line of Trunk

Highway #212; thence North along the north-south quar-

ter line of said Section 18, a distance of 58.02 feet to a

point 58.00 feet Northerly of the northerly right-of-way

line of Trunk Highway #212, as measured at right angles

to said right-of-way line, said point being the actual point

of beginning of the tract to be described; thence continu-

ing North along said north-south quarter line, a distance

of 331.14 feet; thence North 89 degrees 19 minutes

00 second East parallel to the south line of 11th Street, a

distance of 133.00 feet to a point on the west line of the

East 33.00 feet of the West 166.00 feet of said West half

of West Half of the Northeast Quarter; thence on a

bearing of South parallel to said north-south quarter line,

a distance of 335.74 feet to a point 58.00 feet Northerly

of the northerly right-of-way line of Trunk High-

way #212, as measured at right angles to said right-of-

way line; thence North 88 degrees 42 minutes 00 seconds

West parallel with said northerly right-of-way line of

Trunk Highway #212, a distance of 133.02 feet to the

point of beginning. This tract contains 1.02 acres of land

and is subject to any and all easements of record;

A-93

and

That part of the East Half of the Northwest Quarter

of Section Eighteen (18) Township One Hundred Fif-

teen (115) North of Range Twenty-seven (27) West

described as follows:

Commencing on the north-south quarter line

456.5 feet North of the center of said Section 18, said

point being on the northerly right-of-way line of Trunk

Highway #212; thence North along the north-south quar-

ter line of said Section 18, a distance of 389.16 feet;

thence South 89 degrees 19 minutes 00 seconds West

parallel to the south line of 11th Street, a distance of

33.00 feet to the actual point of beginning of the tract to

be described; thence continuing South 89 degrees

19 minutes 00 seconds West parallel to said south line of

11th Street, a distance of 446.81 feet to a point on a

50.00 foot radius curve, center of circle of said curve is

described as follows:

Commencing at the intersection of the northerly

right-of-way line of Trunk Highway #212 as now located

and the east line of said Northwest Quarter, said point

being 456.50 feet North of the southeast corner of said

Northwest Quarter; thence on an assumed bearing of

North 88 degrees 42 minutes 00 seconds West along said

northerly right-of-way line, a distance of 490.00 feet;

thence North 00 degrees 00 minutes 00 seconds West, a

distance of 324.20 feet; thence continuing North 00 de-

grees 00 minutes 00 seconds West, a distance of

~ 66.00 feet to a point on a 50.00 foot radius curve, center

of circle bears South 48 degrees 42 minutes 00 seconds

West from said point.

Thence Northwesterly along said curve, an arc

length of 20.68 feet, central angle 23 degrees 41 minutes

A-94

51 seconds to a point 490.00 feet West of said north-

south quarter line as measured parallel to the northerly

right-of-way line of Trunk

EXHIBIT P

A-95

DEED

CYNTHIA AUSTIN

WILLIAM F. AUSTIN

Dated: , 1998

Record and return to:

Attention: Ike Vanden Eykel, Esq.

Koons, Fuller & Vanden Eykel

2311 Cedar Springs

Suite 300

Dallas, Texas 75201

Grantor,

Grantee.

A-96

FOR VALUABLE CONSIDERATION, Cynthia Daw-

son-Austin, a single person, as Grantor (whether one or

more), hereby conveys and quitclaims to William F. Austin, a

single person, as Grantee (whether one or more), real property

in Hennepin County, Minnesota, described as follows:

Lot 8 and That part of Lot 7, lying Easterly of a line

described as beginning at the Southeast comer of said

Lot 7, thence Northerly at right angles to the South line

of said Lot 7 to its intersection with the Northerly line of

said Lot 7 and there terminating;

All in Block 1, Claradon Park, according to the plat

thereof on file or of record in the office of the Registrar

of Titles in and for said County.

Subject to utility and drainage easements as shown

on plat.

Subject to and together with an easement for utili-

ties as shown in deed Doc No 1095526, Files of Regis-

trar of Titles; (as to Lots 7 & 8)

Subject to and together with the reservation of an

easement for the purpose of construction, operating and

repairing any utilities as shown in deed Doc

No 1101348, Files of Registrar of Titles; (See Inst) (as to

Lot 8).

The consideration for this transfer is less than $500.

Grantor certifies that Grantor does not know of any wells

on the described real property.

together with all hereditaments and appurtenances belonging

thereto. Grantor covenants and represents that:

(1) This Deed conveys after-acquired title; and

(2) Grantor has not made, done, executed or suf-

fered any act or thing whereby the above-described

A-97

property or any part thereof, now or at any time

hereafter, shall or may be imperiled, charged or incum-

bered in any manner, and Grantor will warrant the title to

the above-described property against all persons claiming

the same from or through Grantor as a result of any such

act or thing, EXCEPT: the lien of all unpaid special

assessments and therein thereon; and all liens and restric-

tions of record.

Affix Deed Tax Stamp Here

Cynthia Dawson-Austin

STATE OF

COUNTY OF —__

The foregoing instrument was acknowledged before me

this day of September, 1993, by

Affix Notarial Stamp

Signature of Person Taking

Acknowledgment

This Instrument was Drafted by:

The Curtin Law Office, P.A.

8500 Normandale Lake Boulevard

Suite 960

Minneapolis, MN 55437

EXHIBIT Q

A-98

No. 92-14835-T

ENDORSEMENT ON INSTRUMENT

William Franklin Austin

vs.

Cynthia Lee Dawson-Austin

FINAL DECREE OF DIVORCE

Signed and Entered: September 28, 1993

Recorded in Vol T 160, page 261

IN THE MINUTES OF THE 301ST JUDICIAL

DISTRICT COURT OF DALLAS COUNTY, TEXAS

A-99

NO. 92-1483

In the Matter of }

the Marriage of In the District Court of

| Dallas County, Texas

William Franklin Austin T-301st Judicial

and District

Cynthia Lee Dawson-Austin

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pursuant to Texas Rules of Civil Procedure Rule 296 and

Rule 297, the Court hereby files its Findings of Fact and

Conclusions of Law as follows:

FINDINGS OF FACT

1. The parties were married on August 23, 1980.

2. The parties separated and ceased to live together as

husband and wife on or about November 1991.

3. The Court, having examined the pleadings and heard

the evidence and being fully advised of the premises, finds:

a. all necessary residence requirements and pre-

requisites of law have been satisfied;

b. that the Court has jurisdiction of all the parties

and subject matter of the cause;

c. that there is no child born of this marriage, and

none were adopted and none are expected;

d. that a divorce should be granted herein; and

e. that the property should be divided in an equita-

ble manner.

4. CYNTHIA LEE DAWSON-AUSTIN obtained a sta-

tus only Judgment of Dissolution of Marriage in cause num-

A-100

ber ID 026525, Riverside County, State of California on

August 6, 1993. The Court, having examined such decree and

applicable authorities as presented to the Court, finds that

such decree is not a final decree in Texas as that term is

known in law and is therefore not entitled to full faith and

credit. The Court also finds that the California court made no

attempt to divide the property of the parties and further that

the court had no jurisdiction to divide the property claimed by

the Respondent because at the time of the status adjudication,

the Respondent was in a bankruptcy proceeding which had

deprived the California court of any jurisdiction to divide the

property. Further, the Court finds, that notwithstanding the

bankruptcy proceeding, the California court expressly re-

served jurisdiction to divide the property, and therefore it has

never attempted to divide the property. Since the California

court did not attempt to divide any property, this Court finds

Texas Family Code §3.91(b) inapplicable to this case.

5. The Court finds that although CYNTHIA LEE DAW-

SON-AUSTIN did file her cause of action for divorce in

California before WILLIAM FRANKLIN AUSTIN filed his

cause of action for divorce in Texas, the Court finds that

CYNTHIA LEE DAWSON-AUSTIN exercised no diligence

in securing service of process upon WILLIAM FRANKLIN

AUSTIN and did not attempt to effectively prosecute her case

until after she was served with process in this action. The

Court also finds that WILLIAM FRANKLIN AUSTIN filed

his suit on September 10, 1992 and prosecuted his suit with

diligence and that CYNTHIA LEE DAWSON-AUSTIN was

served at her home on Monday, September 14, 1992.

6. The following disproportionate division of the e: tate

of the parties in favor of CYNTHIA LEE DAWSON-AUSTIN

is a just and right division of the parties’ marital estate, having

due regard for the rights of each party. In determining the

rights of each party, the Court has given due and proper

A-101

consideration to all applicable factors, including without limi-

tation, the following:

a. long before his marriage to CYNTHIA LEE

DAWSON-AUSTIN, WILLIAM FRANKLIN AUSTIN

was and has continued to be the President of Starkey

Laboratories, Inc. and devoted his full time and efforts to

the business of Starkey Laboratories, Inc.;

b. WILLIAM FRANKLIN AUSTIN during his

marriage to CYNTHIA LEE DAWSON-AUSTIN was

adequately compensated for the time, toil and talent he

devoted to the operation of Starkey Laboratories, Inc.

Further, WILLIAM FRANKLIN AUSTIN during his

marriage to CYNTHIA LEE DAWSON-AUSTIN was

adequately compensated for work done beyond preserv-

ing and maintaining the separate estate of WILLIAM

FRANKLIN AUSTIN and there has been no unjust

enrichment of his separate estate to the detriment of the

community estate;

c. the separate property of WILLIAM FRANKLIN

AUSTIN, namely Starkey Laboratories, Inc. is not the

alter ego of WILLIAM FRANKLIN AUSTIN and it has

not been used as an unfair device;

d. WILLIAM FRANKLIN AUSTIN has not di-

verted community opportunity to the detriment of the

community estate. Furthermore, WILLIAM FRANKLIN

AUSTIN owed fiduciary obligations to Starkey Laborato-

ries, Inc. under corporate law and WILLIAM FRANK-

LIN AUSTIN properly balanced his fiduciary obligation

to the corporation against his obligations to the commu-

nity estate and his duty to the community estate was fully

discharged by receiving adequate compensation for his

time, talent and labor during his marriage to CYNTHIA

LEE DAWSON-AUSTIN;

A-102

e. CYNTHIA LEE DAWSON-AUSTIN worked

throughout nearly her entire marriage to WILLIAM

FRANKLIN AUSTIN and she worked in a number of

management and executive positions and she earned in

excess of $70,000 per year from such employment;

f. both parties are in good health;

g. both parties are capable of continuing

employment;

h. CYNTHIA LEE DAWSON-AUSTIN is 48 years

of age and has no minor children of this or any other

marriage;

i. WILLIAM FRANKLIN AUSTIN is 51 years of

age and has no minor children of this or any other

marriage;

j. CYNTHIA LEE DAWSON-AUSTIN does not

have sufficient capacity to maintain the standard of living

established during marriage to Petitioner, WILLIAM

FRANKLIN AUSTIN, without other sources of income.

In its division of community property, the Court has

considered the standard of living enjoyed by the parties

during the marriage. The division of community property

and community debts is designed to assist both parties in

maintaining, to the extent possible, under the circum-

stances of this case, a standard of living substantially

similar to that enjoyed by the parties during the marriage.

k. CYNTHIA LEE DAWSON-AUSTIN has 3 years

of college, numerous graduate courses, and she is skilled

in the hearing health care industry, and furthermore, is

personally acquainted with most of the major people

involved in such industry;

A-103

1. before marriage, CYNTHIA LEE DAWSON-

AUSTIN worked in the hearing health care industry and

was self-sufficient;

m. CYNTHIA LEE DAWSON-AUSTIN was duly

and adequately compensated for the time, toil and talent

she devoted to her work on behalf of Starkey Laborato-

ries, Inc. and/or Starkey Hearing Foundation during her

marriage to WILLIAM FRANKLIN AUSTIN;

n. in addition to CYNTHIA LEE DAWSON-

AUSTIN’s work during her marriage she devoted a large

amount of time to social and recreational activities and

domestic help and was always available so that her

domestic duties were minimal;

o. CYNTHIA LEE DAWSON-AUSTIN made no

contribution to the attainment by Petitioner, WILLIAM

FRANKLIN AUSTIN, of an education, training, career,

position or ownership in Starkey Laboratories, Inc. Fur-

thermore, the Court finds that WILLIAM FRANKLIN

AUSTIN received his education and training relative to

his occupation before his marriage to CYNTHIA LEE

DAWSON-AUSTIN and that the community estate has

benefitted from the education, training and employment

which WILLIAM FRANKLIN AUSTIN brought into his

marriage with CYNTHIA LEE DAWSON-AUSTIN;

p. WILLIAM FRANKLIN AUSTIN’s standard of

living is modest commensurate with his income;

q. WILLIAM FRANKLIN AUSTIN lives in a four

bedroom house, in an upper middle class neighborhood

and drives a 1979 Mercedes automobile;

r. the parties enjoyed an upper middle class or

higher standard of living during marriage. In addition to

the residence of WILLIAM FRANKLIN AUSTIN in

A-104

Texas, the parties maintained residences in Minnesota,

California, and Florida. They traveled periodically to

other places and attended social and recreational events

frequently;

s. in making the division of property, almost all

marital debt (with the exception of the mortgage on the

Rancho Mirage property awarded to CYNTHIA LEE

DAWSON-AUSTIN and other minor indebtedness) will

be assumed by WILLIAM FRANKLIN AUSTIN and

there will be very little debi to be paid by CYNTHIA

LEE DAWSON-AUSTIN;

t. the unequal division of property hereinafter

awarded in favor of CYNTHIA LEE DAWSON-

AUSTIN, is to provide her with a higher standard of

living than she would have if the Court were to divide the

property equally. Furthermore, the unequal division of

property is to help her meet her needs for future support;

u. WILLIAM FRANKLIN AUSTIN will assume

substantial community debt following this divorce, in-

cluding payment of attorneys’ fees for CYNTHIA LEE

DAWSON-AUSTIN leaving her virtually debt free fol-

lowing the divorce;

v. CYNTHIA LEE DAWSON-AUSTIN shot at

WILLIAM FRANKLIN AUSTIN with a pistol, in-

tending bodily harm or death to him;

w. CYNTHIA LEE DAWSON-AUSTIN has no de-

pendents that would preclude her engaging in gainful

employment;

x. in dividing the estate of the parties, a fair and

reasonable return on the invested capital of WILLIAM

FRANKLIN AUSTIN in Starkey Laboratories, Inc. was

considered by the Court; and

A-105

y. in making the division of property disproportion-

ately in favor of CYNTHIA LEE DAWSON-AUSTIN,

the Court considered that WILLIAM FRANKLIN AUS-

TIN unilaterally offered to pay alimony of $3,000 per

month to CYNTHIA LEE DAWSON-AUSTIN for the

rest of her life.

. z. during the trial of this case, the Court ordered

WILLIAM FRANKLIN AUSTIN to pay for round trip

tickets for 8 witnesses of Respondent's choosing to fly

from any destination in the United States to appear at

trial in Dallas, Texas. The Court finds that CYNTHIA

LEE DAWSON-AUSTIN did not take advantage of this

Opportunity to present evidence in this case.

7. CYNTHIA LEE DAWSON-AUSTIN has attempted

to obstruct the orderly process of this case in the following

ways:

a. in January 1993, CYNTHIA LEE DAWSON-

AUSTIN requested a delay of the trial setting then set for

February 15, 1993 in order to receive the audited finan-

cial statements pertaining to Starkey Laboratories, Inc.

which delay was granted by the Court;

b. as the trial date of April 12, 1993 approached,

that CYNTHIA LEE DAWSON-AUSTIN employed

Toby Goodman, a member of the Texas Legislature,

obtaining a mandatory legislative continuance further

delaying trial of the case;

c. CYNTHIA LEE DAWSON-AUSTIN on the eve

of trial on July 1, 1993 attempted to discharge her

counsel in an effort to further delay this case;

d. CYNTHIA LEE DAWSON-AUSTIN, although

fully aware of the issues regarding adequacy of compen-

Sation in this case and the value of Starkey Laboratories,

A-106

Inc. as it may have been enhanced during marriage, was

not forthcoming in her responses to proper discovery

request asking for the identification of her testifying

expert witnesses and that her answers in this case were

not timely filed and that such answers were not verified

or signed by the Respondent and that such answers

identifying the experts were not made as soon as practi-

cal. The Court finds that such experts were hired in

January 1993 and not disclosed until after May 31, 1993;

e. during trial Respondent filed for bankruptcy,

further delaying the trial. She subsequently dismissed

such bankruptcy petition and then immediately sought an

additional delay in the trial of this case. The Court finds,

that although she was seeking the protection of bank-

ruptcy in California, she proceeded to obtain a status

only adjudication;

f. CYNTHIA LEE DAWSON-AUSTIN, on the

record, although stating she wished to discharge her

lawyers, withdrew such motion and proceeded to trial.

During the trial of this case Respondent was represented

or assisted by eight different lawyers, three of whom are

board certified in family law by the Texas Board of Legal

Specialization; and

g. Respondent, during the course of this case,

claimed to be emotionally and mentally incapable of

participating in the preparation and presentation of her

case. That the Court ordered Respondent to present

herself to the Mennenger Clinic in San Francisco, Cali-

fornia for evaluation and treatment. The Court ordered

Petitioner to make financial arrangements for such medi-

cal examination, evaluation and any necessary treatment

of Respondent. The Court finds that Petitioner did make

the required arrangements as ordered. Following the

making of such arrangements, Respondent filed a motion

Tinie

A-107

with this Court stating she had, for several days, partici-

pated in the taking of Petitioner’s deposition, preparation

of document requests, examination of Petitioner’s busi-

ness records produced, and in light of same, Respondent

asked for rescission of the order for medical examination

and treatment by Mennenger Clinic as she was capable

of assisting in the preparation and presentation of her

case.

CONCLUSIONS OF LAW

1. The First Amended Original Petition for Divorce filed

by WILLIAM FRANKLIN AUSTIN is in due form and

contains all allegations required by law.

2. The Court has jurisdiction of the parties and of the

subject matter of this cause.

3. All legal prerequisites to the granting of the divorce

have been met.

4. All property belongs to the community except for the

following which belongs to the separate estate of Petitioner or

Respondent:

a. 100% ownership interest in Starkey Laboratories,

Inc. was and has been at all times the separate property

of WILLIAM FRANKLIN AUSTIN. The Court further

finds that the situs of the 60 shares of stock, representing

100% ownership of Starkey Laboratories, Inc., as evi-

denced by stock certificate number 1, has been at all

relevant times during the pendency of this case, in Dallas

County, Texas and this Court has jurisdiction to make a

final and permanent adjudication of its marital character

herein. The Court finds that the stock certificate evidenc-

ing the 60 shares of stock of Starkey Laboratories, Inc.

was not and has not at any relevant time been atypically

A-108

removed from any other jurisdiction, nor atypically

brought to this jurisdiction.

b. the following property described below is Re-

spondent’s separate property:

Section 27, T 13 S, R 10 W, County of

Lincoln, as platted and recorded in Book 38,

Page 1376, Lincoln County Deed Records, in Lin-

coln County, Oregon, more commonly known as

river lot, Walport, Oregon.

5. The division of the property of Petitioner and Respon-

dent effected by the final judgment is just and right, having

due regard for the rights of each party.

6. the fair and just division of the community estate is

based on the nature of the property, health of the parties,

disparity of ages, educational background, earning ability,

wife’s future support needs, and any reimbursement claim, if

such existed. Francis v. Francis, 412 S.W.2d 29, 32

(Tex. 1967). Copy of opinion attached.

7. The adequacy of WILLIAM FRANKLIN AUSTIN

and CYNTHIA LEE DAWSON-AUSTIN’s compensation

from Starkey Laboratories, Inc. was duly considered by the

Court under the doctrine announced in Jensen v. Jensen,

665 S.W.2d 107 (Tex. 1984). The claim as to community

compensation for the time, toil, talent and effort of both

WILLIAM FRANKLIN AUSTIN and CYNTHIA LEE DAW-

SON-AUSTIN is denied. The Court finds that the parties were

adequately compensated. Copy of opinion attached.

8. The Court further finds that the unequal division of

property in favor of CYNTHIA LEE DAWSON-AUSTIN is

- in the nature of an alimony-substitute, support or mainte-

nance, however termed and as such is intended to meet

CYNTHIA LEE DAWSON-AUSTIN’s future needs and in

A-109

accordance with Jn re: Nunnally, 506 F.2d 1024, 1027

(Sth Cir. 1975) and Erspan v. Badgett, 647 F.2d 550 (Sth Cir.

1981) and intended to be non-dischargeable as alimony.

Copies of opinions attached.

9. CYNTHIA LEE DAWSON-AUSTIN should be

awarded the following property:

a. Real property and improvements located thereon,

including but not limited to any escrow funds, prepaid

insurance, utility deposits, keys, house plans, warranties

and service contracts, and title and closing documents,

more particularly described as:

(1) 70661 Oroville Circle, Rancho Mirage,

California;

(2) 8 Birchfield Drive, Mt. Laurel, New

Jersey;

(3) 6120 Pine Street, Florence, Oregon;

(4) Parcel 16.00, Section 27, T13S, R1OW,

Lincoln County, Oregon; and

(5) 5555 Collins Ave., Miami, Florida.

b. All household furniture, furnishings, fixtures,

goods, appliances and equipment in the possession of or

subject to the control of Respondent, CYNTHIA LEE

DAWSON-AUSTIN.

c. '/2 of the artwork and collections of WILLIAM

FRANKLIN AUSTIN and CYNTHIA LEE DAWSON-

AUSTIN.

d. All clothing, jewelry, and other personal effects

in the possession of or subject to the sole control of

Respondent, CYNTHIA LEE DAWSON-AUSTIN.

A-110

e. Any and all sums of cash on deposit in Norwest

Bank, Minneapolis, Account #2735777; and Citizen

State Bank Account #632083.

f. The following life insurance policies insuring the

life of CYNTHIA LEE DAWSON-AUSTIN, together

with any and all cash surrender value associated there-

with and any and all contingent beneficial interest:

(1) Summit National Life Policy

Number SN8904953U.

g. The 1979 Mercedes motor vehicle, vehicle iden-

tification number 116003612006392, together with all

prepaid insurance, keys, and title documents.

h. The 1975 Westlake mobile home, together with

all prepaid insurance, keys, and title documents.

i. 33.32% of the Starkey Employees Savings and

Retirement Plan, whether matured or unmatured, accrued

or unaccrued, vested or otherwise, together with all

increases, its proceeds, and any other rights related to the

Starkey Employees Savings and Retirement Plan existing

by reason of WILLIAM FRANKLIN AUSTIN’S past

employment with Starkey Laboratories, Inc., accordance

with a Qualified Domestic Relations Order to be signed

on the same day as this Final Decree of Divorce.

j. Any and all sums, whether matured or unma-

tured, accrued or unaccrued, vested or otherwise, to-

gether with all increases, its proceeds, and any other

rights related to any profit-sharing plan, retirement plan,

pension plan, employee stock option plan, employee

savings plan, accrued unpaid bonuses or other benefit

program existing by reason of CYNTHIA LEE DAW-

SON-AUSTIN’S past, present and future employment.

k. The Thunderbird Club membership.

A-111

10. WILLIAM FRANKLIN AUSTIN should be

awarded the following property:

a. Real property and improvements located

thereon, including but not limited to any escrow

funds, prepaid insurance, utility deposits, keys,

house plans, warranties and service contracts, and

title and closing documents, more particularly de-

scribed as:

(1) 6650 Vernon Ave. South, Edina, Min-

nesota, Units No. 219, 319, 406 and 419;

(2) 6670 Vernon Ave. South, Edina, Min-

nesota, Units 109, 119, 209, 409 and 419;

(3) 6730 Vernon Ave. South, Edina, Min-

nesota, Unit 219;

(4) 230 Birch Bluff, Tonka Bay,

Minnesota;

(5) 5321 Beachside, Minnetonka,

Minnesota;

(6) 706 Chandler Ave., Glencoe,

Minnesota;

(7) 601 Kings Croft, Cherry Hill, New

Jersey;

(8) 2915 East 10th Street, Glencoe,

Minnesota;

(9) 9505 Hamilton Ave., Eden Prairie,

Minnesota;

(10) 2255 Northeast 194th Ave., Port-

land, Oregon;

(11) 6701 Field Way, Edina, Minnesota;

A-112

(12) 205 Ellen, Nixa, Missouri;

(13) 208 Poplar, Nixa, Missouri;

(14) 5334 Harbor Town, Dallas, Texas:

b. All household furniture, furnishings, fix-

tures, goods, appliances and equipment in the pos-

session of or subject to the control of Petitioner,

WILLIAM FRANKLIN AUSTIN.

c. 2 of the artwork and collections of WIL-

LIAM FRANKLIN AUSTIN and CYNTHIA LEE

DAWSON-AUSTIN.

d. All clothing, jewelry, and other personal

effects in the possession of or subject to the sole

control of Petitioner, WILLIAM FRANKLIN

AUSTIN.

e. Any and all sums of cash on deposit in

Compass Bank, Dallas, Texas, Account #73124328;

and NorthPark National, Dallas, Texas,

Account #5091426.

f. The following life insurance policies insur-

ing the life of WILLIAM FRANKLIN AUSTIN,

together with any and all cash surrender value

associated therewith and any and all contingent

beneficial interest:

(1) Summit National Life Policy

Number SN8904954U;

(2) John Hancock Life Policy Num-

ber 66808477; and

(3) John Hancock Life Policy

Number 66858202.

A-113

g. 66.68% of the Starkey Employees Savings

and Retirement Plan, whether matured or unma-

tured, accrued or unaccrued, vested or otherwise,

together with all increases, its proceeds, and any

other rights related to the Starkey Employees Sav-

ings and Retirement Plan existing by reason of

WILLIAM FRANKLIN AUSTIN’S past employ-

ment with Starkey Laboratories, Inc.

h. The Willowbend Polo & Hunt Club

membership.

11. The allocation of debts between the parties is fair

and equitable based on the division of the marital estate.

12. An equitable division of the estate of the parties is

further achieved by ordering Petitioner to pay $400,000 in

attorney’s fees to Respondent’s attorney.

13. The parties are entitled to a divorce because the

Court finds the marriage has become insupportable because of

discord or conflict of personalities that destroyed the legiti-

mate ends of the marriage relationship and prevented any

reasonable expectation of reconciliation.

SIGNED this 15th day of October, 1993.

/s/ BOB O’DONNELL

BOB O’DONNELL,

Judge Presiding -

301st Judicial District Court

Dallas County, Texas

A-114

CERTIFICATE OF SERVICE

Pursuant to Rule 297 of the Texas Rules of Civil Proce-

dure, a copy of the Court’s findings and conclusions were

mailed to the following counsel of record in this suit on

October 15, 1993:

Harry L. Tindall

2800 Texas Commerce Tower

Houston, Texas 77002-3094

Kenneth D. Fuller

M.J. “Ike” Vanden Eykel

2311 Cedar Springs Rd., Suite 300

Dallas, Texas 75201

Kenneth G. Raggio

3316 Oak Grove Avenue, Suite 100

Dallas, Texas 75204

Toby R. Goodman

1600 E. Lamar Boulevard, Suite 115

Arlington, Texas 76011

Robert Eugene Smith

1555 S. Palm Canyon Drive, D-201

Palm Springs, California 92264

Mike Aranson

600 Jackson Street

Dallas, Texas 75202

/s/_ BOB O’DONNELL

BOB O'DONNELL, Judge

Presiding

301st Judicial District Court

Dallas County, Texas

A-115

In the Matter of Roy Stewart

NUNNALLY, Bankrupt.

Mary Elizabeth NUNNALLY,

a ie Appellee.

Roy Seeinaet NUNNALLY,

Appellee-Cross Appellant.

No. 74-1361.

United States Court of Appeals,

Fifth Circuit.

Jan. 8, 1975.

Rehearing and Rehearing En Banc

Denied Feb. 13, 1975.

In a proceeding on a voluntary petition in bankruptcy,

the referee found that the bankrupt’s navy retirement benefits

becoming due after the filing of the voluntary petition were

not property passing to the trustee in bankruptcy and that an

award to bankrupt’s former wife during their divorce proceed-

ings was a dischargeable debt, the United States District Court

for the Western District of Texas, at Austin, Jack Roberts, J.,

affirmed, and bankrupt and his former wife appealed. The

Court of Appeals. Gee, Circuit Judge, held that the retirement

benefits did not pass to the trustee, that the debt to the former

wife was nondischargeable as representing alimony, that the

attorney's fees awarded during the divorce proceedings were

likewise protected from discharge, and that the bankrupt’s

interest in the cash surrender value of certain life policies was

not exempt from creditors.

Affirmed in part, reversed in part.

1. Bankruptcy Key 143(1)

Bankrupt’s navy retirement benefits becoming due after

filing of voluntary petition were not property passing to

A-116

trustee in bankruptcy. Bankr.Act. § 70. sub. a(5). 11 U.S.C.A.

§ 110(a)(S): 38 U.S.C.A. § 454a: Social Security Act. § 207,

42 U.S.C.A. § 407; Railroad Retirement Act of 1937. § 12, 45

U.S.C.A. § 2281.

2. Bankruptcy Key 421(5)

Amount awarded to bankrupt’s ex-wife during divorce

proceedings as advance to community from her separate

estate was nondischargeable debt. V.T.C.A., Family Code

§ 3.63: Bankr.Act, §§ 14, sub. c. 17, subs. a. a(7), 11 U.S.C.A.

§§ 32(c), 35(a), (a)(7).

3. Divorce Key 231

Under Texas law, award to wife in divorce proceedings

of sum representing advance to community from her separate

estate did not constitute award of permanent alimony where

sum was fixed, no periodic payments for indefinite period of

time were ordered and it was clear that there was property on

hand to satisfy the debt.

4. Bankruptcy Key 421(5)

Attorney’s fees awarded to former wife during divorce

proceedings constituted nondischargeable debt of bankrupt.

Bankr.Act, §§ 14. sub. c. 17. subs. a. a(7). 11 U.S.C.A.

§§ 32(c). 35(a). (a)(7).

5. Bankruptcy Key 396(3)

Bankrupt’s interest in cash surrender value of life poli-

cies as to which bankrupt’s mother and children were benefi-

Ciaries was not exempt from creditors under Texas law where

children were only contingent beneficiaries and bankrupt had

failed to show himself legally or morally bound to support

mother or her actual dependence on him. Bankr.Act, § 70,

sub. a(S). 11 U.S.C.A. § 110(a)(5): Vernon’s Ann.Tex.Civ.St.

arts. 3832a, 3836.

A-117

Gerard P. Nugent, Austin, Tex., for appellant-cross

appellee.

E.O. Rinehart, Jr., Austin. Tex., for appellee-cross

appellant.

Before DYER, SIMPSON and GEE, Circuit Judges.

GEE, Circuit Judge:

In October 1972, Roy Stewart Nunnally filed a voluntary

petition in bankruptcy. His principal creditor and the one

pursuing this appeal is his former wife, Mary Elizabeth

Nunnally, whose claim stems from earlier divorce proceed-

ings. In granting divorce, the court had divided the separate

and community property between the spouses under the

authority of Section 3.63 of the Texas Family Code, V.T.C.A.

In addition to various items of personal property and title to

real estate. Mary Elizabeth Nunnally was awarded 60% of

certain life insurance policies. $46,779.41 representing an

advance to the community from her separate estate, and

$5,000 in attorney’s fees incurred as a result of the divorce

proceedings. The trial court granted Mrs. Nunnally a lien on

Roy Nunnally’s remaining interests in his Navy retirement

benefits to secure the $46,779.41!

A few months later Nunnally’s petition in bankruptcy

presented Mrs. Nunnally with the possibility that parts of the

divorce decree might be rendered of little worth. Those fears

were reinforced by the bankruptcy referee’s decision and the

district court’s affirmance. The referee found that the Navy

retirement benefits becoming due after the filing of the

voluntary petition in bankruptcy were not property passing to

the trustee in bankruptcy. Further, he held that the $41,779.41

was a dischargeable debt, as was the award of attorney’s fees.

' The trial court gave 48% of the Navy retirement pension payments to

Mrs. Nunnally. Fifty-two percent was awarded to Mr. Nunnally.

A-118

Mrs. Nunnally’s application for a stay of the bankruptcy

proceedings to permit her to proceed in state court to enforce

her lien against the Navy retirement pension was denied.

Mrs. Nunnally appeals these decisions while Mr. Nunnally

complains of the referee’s finding that the life insurance

policies were not exempt from creditors under Vernon’s

Tex.Rev.Civ.Stat.Ann. art. 3832a.

[1] Under Section 70a(5) of the Bankruptcy Act, 11

U.S.C. § 110(a)(5), the trustee of the bankrupt’s estate is

vested on appointment with title to all property of the bank-

rupt which could have been transferred by the bankrupt or

which could have been levied upon prior to the filing of the

petition in bankruptcy. This provision is a broad one, covering

vested rights in property, both of corporeal and incorporeal

nature. 1A Collier Bankruptcy Manual P 70.11 at 946 (2d ed.

rev. I. Hall & R.D. Agostino 1974) [hereinafter cited as

Collier]. It is too late in the day to find that vested interests in

retirement pensions are not property rights. Texas divorce

courts so regard them. Busby v. Busby, 457 S.W.2d 551

(Tex.1970), and by implication the federal government does

also. For example, specific federal legislation exempts bene-

fits due under laws administered by the Veterans’ Administra-

tion from attachment, levy or seizure. 38 U.S.C. § 3101.

Similar exemptions exist for railroad retirement benefits,’

social security payments,’ and military retired pay annuities.‘

These federal exemptions are of no benefit to the bankrupt in

this case. Exemption is a matter of federal or state legislative

grace. Either through legislative oversight or through inten-

tional deletion. Congress has failed to provide that Navy

? 45 U.S.C. § 228A.

> 42 U.S.C. § 407.

* 10 U.S.C. § 1440.

A-119

retirement pensions are free from levy and attachment. Nor is

it provided by statute that pensions are not transferable. See

Segal v. Rochelle, 382 U.S. 375, 381-385, 86 S.Ct. 511, 15

L.Ed.2d 428 (1966).

One argument remains for the bankrupt. Some interests,

though “property,” do not pass to the trustee for purposes of

Section 70a(5). Lines v. Frederick, 400 U.S. 18. 91 S.Ct. 113,

27 L. Ed.2d 124 (1970). The pertinent considerations derive

from the Bankruptcy Act itself. Section 70a(5) is defined to

benefit creditors by transferring to the trustee everything the

bankrupt has of value. Even if the interest is contingent or

subject to postponed enjoyment, it may pass to the trustee.

The interest must be “sufficiently rooted in the pre-bank-

ruptcy past and so little entangled with the bankrupt’s ability

to make an unencumbered fresh start that it should be

regarded as ‘property’ under § 70a(5).” Kokoszka v. Belford,

417 U.S. 642, 94 S.Ct. 2431, 2434, 41 L.Ed.2d 374, 379

(1974): Segal v. Rochelle, 382 U.S. 375, 379-380, 86 S.Ct.

511, 15 L.Ed.2d 428 (1966). On the other hand, if the interest

is “designed to function as a wage-substitute at some future

period and, during that future period, to ‘support the basic

requirements of life for’ ” [the debtor], Kokoszka, supra, 417

U.S. at 648, 94 S.Ct. at 2435, 41 L.Ed.2d at 380, and removal

of the interest would hamper the bankrupt’s efforts to make a

new start, the property does not pass to the trustee. The

pension payments here fall in the second category; they are

periodic payments made during a time when the pensioner

may well have no or few other sources of income.

* The bankrupt can only point to former 38 U.S.C. § 454a as authority for

exemption. | Collier 76.07 at C-13. This section is no longer in the United States

Code: however, the corresponding provision in the present code is 38 U.S.C.

§ 3101. This section applies only to benefits rendered under laws administered by

the Veterans’ Administration, a requisite missing here.

A-120

[2,3] Next, we treat the matter of whether the

$41,779.41 awarded by the divorce court to Mrs. Nunally was

a dischargeable debt. All debts are dischargeable unless they

are subject to the objections set out in Section 14c, 11 U.S.C.

§ 32(c) of the Act, 1 Collier J 14.00 .02, or are exempt under

Section 17. 11 U.S.C. § 35(a). 11 U.S.C. § 35(a)(7) provides:

A discharge in bankruptcy shall release a bankrupt

from all of his provable debts, whether allowable in full

or in part, except such as ... are for alimony due or to

become due, or for maintenance or support of wife or

child. ...

Although there is no permanent alimony in Texas, Fran-

cis v. Francis, 412 S.W.2d 29, 32 (Tex.1967), the divorce

court is authorized at the time of the divorce to divide the

separate and community property between the spouses in

whatever manner the court deems equitable and just. Tex.

Family Code Ann. § 3.63. Factors which the Texas courts may

take into account in making the division and award “include

the disparity of the earning power of the parties, as well as

their business opportunities . .. the physical condition of the

parties, probable future need for support, and educational

background: ... [t]he fault in breaking up the marriage and

the benefits innocent spouse would have received from a

continuation of the marriage ...” Cooper v. Cooper. 513

S.W.2d 229, 233-234 (Tex.Civ.App. — Houston [Ist Dist.]

1974. writ history unknown) (emphasis added). See also

Keton v. Clark, 67 S.W.2d 437 (Tex.Civ.App. — Waco 1933,

writ ref'd). Thus, it is clear support in the future can play a

significant role in the divorce court’s property division and

that what may appear to be a mere division of assets may in

fact, under a Texas decree, contain a substantial element of

alimony-substitute, support or maintenance, however termed.

The Texas Supreme Court has recognized that: “Support

payments ordered to be made after divorce from the income

A-121

from the husband’s property, although considered alimony in

many jurisdictions, is not considered alimony in this State.”

Francis v. Francis, 412 §.W.2d 29, 32-33 (Tex.1967). So

recognizing, we should not be bound by the label which the

State places on a decree; we must look to its substance. Here

the award of $41,779.41 falls within the exception from

discharge in Section 17.°

[4] As for the attorney’s fees awarded in the divorce

proceedings, they are also protected from discharge. Courts

have held attorney’s fees nondischargable when awarded

under a state statue allowing such fees as “‘alimony.”” It is

* Bankrupt contends that we cannot find the $41,779.41 an award for support

since it would then be void under Texas law as permanent alimony. In order for the

order to be valid, he says we must find a debt —a dischargeable one. Although it

is doubtful that this is a proper forum for bankrupt to attack the divorce decree

collaterally, bankrupt’s argument founders on Texas case law. In Texas, permanent

alimony is defined as “those payments imposed by a court order or decree on the

husband as a personal obligation for support and maintenance of the wife after a

final decree of divorce.” Francis v. Francis, 412 S.W.2d 29, 38, (Tex. 1967).

However, Texas courts are not quick to find that permanent alimony has been

ordered, and we are Erie-bound to follow in their tracks. If the payments ordered

are “referable to any property which either spouse may have owned or claimed,”

the award is valid. McBean v. McBean, 371 S.W.2d 930, 932 (Tex.Civ.App. —

Waco 1963, writ history unknown). In McBean, the Waco Court of Civil Appeals

held that requiring the husband to pay $100 per month to the wife for her life or

until she remarried was valid as an offer against the community property awarded

the husband. See also Zaruba v. Zaruba, 498 S.W.2d (395, 700 (Tex.Civ.App. —

Corpus Christi 1973. writ dism’d); Gent v. Gmenier, 435 S$.W.2d 203

(Tex.Civ.App.— Waco 1963, no writ); Bunker v. Bunker, 236 S.W.2d 731

(Tex.Civ.App.— San Antonio 1960, writ dism’d). The divorce court here stated

specifically that Mrs. Nunnally was entitled to restoration of her separate prop-

erty — $41,779.41. The sum was fixed: no periodic payments for an indefinite

period of time were ordered. Mr. Nunnally received, among other items, 52% of

his Navy retirement benefits. These benefits were valued at $332.000 in the

voluntary petition for bankruptcy, so it is clear that there was property on hand, in

Texas divorce court terms, to satisfy the debt. The cash award was made in lieu of

granting Mrs. Nunnally additional property in kind. We do not think that the

divorce decree suffers from the infirmity bankrupt presses upon us.

” See 1 Collier 4 17.04 at 219.

A-122

true that there is no statutory authority here; however, the

Texas Supreme Court has based the award of attorney’s fees

on the same factors which guide the divorce court in dividing

the property on hand between the spouses. ““The attorney’s

fee is but a factor to be considered by the court in making an

equitable division of the estate, considering the conditions and

needs of the parties and all of the surrounding circum-

stances.” Carle v. Carle, 149 Tex. 469. 234 S.W.2d 1002,

1005 (Tex.1950).° When put on those grounds, attorney’s fees

are indistinguishable from other parts of the divorce decree.

They cannot be discharged. Since these debts cannot be

discharged, the matter of a stay is moot.

[5] As a final matter, bankrupt contends that his interest

in the cash surrender value of six life insurance policies is

exempt from creditors by virtue of Tex.Rev.Civ.Stat.Ann.

art. 3832a.’ That statute provided:

The cash surrender value of any life insurance

policy which has been in force more than two years, shall

be exempt from liability for any debt, and shall not be

subject to forced sale, or other process to satisfy any

® This holding has been held to survive the enactment of the 1968 Texas Family

Code. Jn re marriage of Jackson, 506 S.W.2d 261. 268-269 (Tex.Civ.App. —

Amarillo 1974, writ dism'd).

® This statute was repealed effective January 1, 1974. However, it is preserved

in Tex.Rev.Civ.Stat.Ann. art. 2830, pertinent sections of which are set out below:

Art. 3836. [3785] [2395] [2335] Personal property exempt from satisfaction of

liabilities.

(a) Personal property (not to exceed an aggregate fair market value of $15,000

for each single, adult person, not a constituent of a family, or $30,000 for a family)

is exempt from attachment, execution and every type of seizure for the satisfaction

of liabilities, except for encumbrances properly fixed thereon, if included among

the following:

* x * * *

(6) the cash surrender value of any life insurance policy in force for more than

two years to the extent that a member or members of the family of the insured

person or a dependent or dependents of a single, adult person, not a constituent of

a family, is beneficiary thereof: . . .

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debt, provided a member or members of the family of the

insured are the beneficiaries under such policy, and in

event they are only partially the beneficiaries then such

policies shall be so exempt to the extent of their benefici-

ary interest. This act shall not apply to debts arising

under the policy nor to debts secured by lawful assign-

ment of the policy.

Under Texas law interpreting the meaning of “family”

for purposes of personal property and homestead exemptions,

adult children other than unmarried daughters are not part of

the family unit. Givens v. Hudson, 64 Tex. 471 (1885). In

order for the mother to be regarded as a member of her adult

son’s family, there must be a legal or moral obligation to

Support on the part of one person, with corresponding depen-

dency on the part of the other person. Stout v. Anthony, 254

S.W.2d 879 (Tex.Civ.App. — Amarillo, 1952, writ ref d).

Bankrupt has not shown himself legally or morally bound to

Support his mother. Likewise, he has not shown her depen-

dence on him. Stout v. Anthony, supra. L. E. Whitham & Co.

v. Briggs’ Estate. 58 S.W.2d 49 (Tex.Comm’n App.1933,

holding approved). Cf. Henry S. Miller Co. v. Shoaf, 434

S.W.2d 243 (Tex.Civ.App. — Eastland 1968, writ ref. n. r. e.).

The fact that bankrupt’s children are contingent benefi-

ciaries on the policies does not change our holding that the

cash surrender values of the policies are not exempt. The

Statute speaks in terms of beneficiaries, not contingent benefi-

ciaries. Moreover, we decline to adopt an interpretation of the

Statute which would allow a bankrupt — by the device of

making family members fourth or fifth contingency benefi-

ciaries, for example — to insulate assets from creditors when

there may be only a very slight chance that members of the

family unit or dependents will ultimately benefit. This would

not further the aims of the statute.

Affirmed in part, reversed in part.

A-124

Mary Frances ERSPAN, Plaintiff-Appellee

Cross-Appellant,

Lloyd J. BADGETT, Defendant-Appellant

Cross-Appellee.

No. 79-4011.

United States Court of Appeals,

Fifth Circuit.

Urit A

June 10, 1961.

Rehearing En Banc Denied Oct. 9, 1981.

Divorced wife sued former husband to enforce terms of

Texas divorce decree awarding her one half of defendant’s

accumulated rights under United States Army retirement

benefits program. The United States District Court for the

Western District of Texas, William S. Sessions, Chief Judge,

rendered judgment for plaintiff and enjoined defendant from

proceeding with civil contempt action against plaintiff in

Missouri district court from which he had obtained a dis-

charge in bankruptcy, and husband appealed. The Court of

Appeals, Sam D. Johnson, Circuit Judge, held that: (1) absten-

tion on ground that matter involved domestic relations issue

was not required; (2) although alimony after divorce is not

permitted in Texas, finding that wife’s right to share of

retirement benefits was nondischargeable as containing an

element of alimony substitute, support or maintenance was

not clearly erroneous; and (3) District Court was not without

jurisdiction to enjoin husband from proceeding against wife

for civil contempt in the bankruptcy court.

~ Affirmed.

A-125

1. Federal Courts Key 47

It is neither necessary nor appropriate for federal courts

to abstain in every case involving domestic relations

questions.

2. Federal Courts Key 47

District court did not err in asserting jurisdiction in

diversity action to enforce terms of Texas divorce decree

awarding plaintiff former wife one half of defendant former

husband’s accumulated right under United States Army retire-

ment benefits program as case essentially involved questions

of interpretation of federal bankruptcy laws and of proper

relationship between a bankruptcy court and other federal

courts. 28 U.S.C.A. § 1332.

3. Divorce Key 261

Divorced husband could not be heard to argue that he

could not comply with district court order that he maintain

with the United States Army an allotment in favor of his wife

for one half of future retirement benefits, which had been

awarded wife by Texas divorce court, because the Army does

not allow allotments where Department of Army had advised

that pay manual had been amended to permit retired military

members to authorize allotments to former spouses and there

was no showing that husband had ever attempted to secure

such allotment.

4. Bankruptcy Key 421(5)

Although alimony after divorce is not permitted in Texas,

divorced wife’s right to share of former husband’s military

retirement benefits awarded her by Texas divorce court was

nondischargeable under Bankruptcy Act as “alimony”; di-

vorce award contained an element of alimony-substitute,

A-126

support or maintenance, however termed. Bankr.Act.

§ 17(a)(7), 11 U.S.C.A. § 35(a)(7).

See publication Words and Phrases for other judi-

cial constructions and definitions.

5. Bankruptcy Key 3

Constitutional Law Key 224(2)

Provision of Bankruptcy Act exempting from discharge

an obligation for alimony due or to become due or for

maintenance or support of the “wife” is not unconstitutional

on equal protection grounds; sex-based distinction is reme-

died by extending benefits to the excluded class, i.e., former

husbands. Bankr.Act. § 17(a)(7), 11 U.S.C.A. § 35(a)(7);

U.S.C.A.Const. Amend. 14. ~

6. Divorce Key 261

Since former husband’s discharge in bankruptcy did not

bar former wife from litigating issue of nondischargeability of

Texas divorce court’s award of one half of husband’s accumu-

lated right under army retirement benefits program, husband's

instituting contempt proceedings against wife in bankruptcy

court was nothing more than an attempt to relitigate district

court’s determination, in wife’s action to enforce decree, of

nondischargeability and district court did not act in excess of

its jurisdiction in enjoining husband from proceeding with

contempt action, especially as husband had not moved bank-

ruptcy court for a determination of dischargeability.

Bankr.Act, §§ 14(f)(2), 17(a)(2, 7), (c)(4), 11 U.S.C.A.

§§ 32(f)(2), 35(a)(2, 7), (c)(4); Rules Bankr. Proc. Rules

401(e), 409(a)(1), 11 U.S.C.A.; 28 U.S.C.A. § 1652.

Stephen F. Hefner, Sherman, Tex., for defendant-anpel-

lant cross-appellee.

A-127

Colbert N. Coldwell, El Paso, Tex., for plaintiff-appellee

cross-appellant.

Appeals from the United States District Court for the

Western District of Texas.

Before AINSWORTH and SAM D. JOHNSON, Circuit

Judges, and HUNTER*, District Judge.

SAM D. JOHNSON, Circuit Judge:

This is an action to enforce the terms of a 1963 divorce

decree that awarded to plaintiff one-half of defendant's accu-

mulated right under a United States Army retirement benefits

program. Following a non-jury trial, the district court awarded

plaintiff accrued and unpaid benefits in the amount of

$34,641.90 plus interest from the date of judgment, and

ordered defendant to maintain with the United States Army an

allotment order providing for the payment directly to plaintiff

of her one-half share of all future payments to which she is

entitled. The district court also permanently enjoined defen-

dant from proceeding with his civil contempt action against

plaintiff in the United States District Court for the Eastern

District of Missouri, Southeastern Division, the court from

which defendant obtained a discharge in bankruptcy in 1973.

The judgment of the district court is affirmed.

Plaintiff and defendant were divorced in 1963. The

divorce decree, which was rendered in the state district court

in El Paso, Texas, provided in part that defendant’s accumu-

lated right to United States Army retirement benefits was

community property, and, as such, was the joint property of

plaintiff and defendant upon divorce. The decree ordered

* District Judge of the Western District of Louisiana, sitting by designation.

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defendant to execute all documents necessary to accomplish

the payment directly to plaintiff of her one-half share of each

payment made after defendant’s retirement from the Army,

and provided that defendant was personally responsible to

plaintiff for such payments in the event that they could not be

made directly to her by the Army.

Shortly after the divorce, defendant retired from the

Army. He paid to plaintiff one-half of his military retirement

benefits from the date of his retirement through March 1967;

he has paid nothing to plaintiff since that time. In 1971,

plaintiff obtained a judgment against defendant for accrued

benefits due her in the amount of $8,606.28. The judgment

was entered by the state district court in Denton County,

Texas. This judgment was affirmed by the Texas Court of

Civil Appeals in Badgett v. Erspan, 476 S.W.2d 381

(Tex.Civ.App. — Fort Worth 1972, no writ), but defendant

has not paid it. No execution has ever been requested or

issued on the Denton County judgment.

In 1972, defendant filed a petition .n bankruptcy in the

United States District Court for the Eastern District of Mis-

souri, Southeastern Division. He listed among his debts plain-

tiff's 1971 Denton County judgment as well as the El Paso

divorce decree. Plaintiff received notice of the petition in

bankruptcy, but filed no claim in the bankruptcy proceedings,

and did not object to the discharge in bankruptcy that defen-

dant obtained thereby.

Jurisdiction in the case sub judice is predicated upon

diversity of citizenship, 28 U.S.C. § 1382. Plaintiff seeks from

defendant her share of the retirement benefits paid by the

government to defendant, but not forwarded to her, since

June 10, 1967, the date of the Denton County judgment.

Plaintiff also seeks an order that will ensure her ability to

receive future retirement benefits to which she is entitled. In

response, defendant argues that his 1973 discharge in bank-

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ruptcy absolved him of any liability to plaintiff for either past

or future retirement benefits.

Following submission of the instant case to the federal

district court, defendant instituted contempt proceedings

against plaintiff in the Missouri bankruptcy court from which

he obtained his discharge, alleging that, by bringing the

present action, plaintiff had violated an injunction that arose

by operation of law from defendant’s discharge in bankruptcy.

The federal district court in the present case temporarily

enjoined defendant from prosecuting the Missouri contempt

proceeding, and subsequently held that defendant’s discharge

in bankrupicy did not affect his liability to plaintiff for either

past or future retirement benefits. Consequently the court

ordered defendant to pay to plaintiff $34,641.90 plus interest,

which represents one-half of the benefits accrued from

June 10, 1971, to the date of the federal district court’s

judgment herein. The court also ordered defendant to execute

and keep in full force and effect with the United States Army

an allotment order directing the Army to pay directly to

plaintiff one-half of all future retirement benefits. Finally, the

district court entered a permanent injunction preventing de-

fendant from proceeding with his contempt action in the

Missouri bankruptcy court.

[1-3] On appeal, defendant argues (1) that the federal.

district court erred in holding that his 1973 discharge in

bankruptcy did not extinguish plaintiff's claim to one-half of

defendant’s military retirement benefits, (2) that even if the

obligation to plaintiff was exempt from discharge under

former section 17(a)(7) of the Bankruptcy Act, that provision

is unconstitutional on equal protection grounds, and (3) that

the district court erred in enjoining defendant from proceeding

in the bankruptcy court because that court has jurisdiction to

determine dischargeability. Although defendant challenges on

- appeal the district court’s determination that his discharge did

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not extinguish plaintiff’s right to her share of the retirement

benefits, he elected not to appeal the district court’s award of

$34,641.90 representing her share of benefits that defendant

already has received.

' Defendant raises two additional arguments. First, he asserts that under the

“domestic relations” theory of federal abstention, the district court should have

refused to assert jurisdiction in this case. In Crouch v. Crouch, 566 F.2d 486

(Sth Cir. 1978), this Court stated the rule that:

Federal courts have traditionally refused to exercise diversity jurisdiction in a

variety of domestic relations cases, including suits for divorce and alimony, . . .

and actions to enforce separation or divorce decrees still subject to state court

modification. The reasons for federal abstention in these cases are apparent: the

strong state interest in domestic relations matters, the competence of state courts

in settling family disputes, the possibility of incompatible federal and state court

decrees in cases of continuing judicial supervision by the state, and the problem

of congested dockets in federal courts.

566 F.2d at 487 (citations omitted). The Court, however, recognized that it is

neither necessary nor appropriate for federal courts to abstain in every case

involving domestic relations questions:

While we approvingly acknowledge the so-called domestic relations exception

to diversity jurisdiction, we find it inapplicable to the instant case, which

involves little more than a private contract to pay money between parties long

since divorced .... We are faced here with no questions of custody or parental

rights, no pending state court action or agreement to litigate in state court, and

no threat that the former spouses will seek to play one court system off against

the other. Nor do we perceive any strong state interest in the adjudication of this

suit or any special competence on the part of state courts, other than their

superior ability to interpret state law, which is always present in diversity suits.

Because none of the rationales for the domestic relations exception obtained in

this case — with the possible exception of congested federal dockets — we

uphold the district court’s exercise of jurisdiction and proceed to determine the

merits.

Id. at 487-88 (citations omitted; footnote omitted). As in Crouch, the case sub

judice involves none of the concerns upon which the domestic relations exception

rests. Indeed, as developed infra, this case essentially involves questions of

interpretation of the federal bankruptcy laws and of the proper relationship

between a bankruptcy cour: and other federal courts. Consequently, the district

court did not err in asserting jurisdiction in this case.

Defendant also argues that he cannot comply with the district court’s order that

he maintain with the United States Army an allotment “% favor of his wife for one-

half of all future retirement benefits because the Army does not allow allotments in

these circumstances. Defendant persists in this argument despite the fact that the

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Il.

Section 17(a)(7) of the Bankruptcy Act of 1938,” former

11 U.S.C. § 35(a)(7), provided in part:

A discharge in bankruptcy shall release a bankrupt

from all of his provable debts, whether allowable in full

or in part, except such as ... are for alimony due or to

become due, or for maintenance or support of wife or

child....

In In re Nunnally, 506 F.2d 1024 (5th Cir. 1975), this

Court explored the relationship between Texas community

property law, military retirement benefits, and section

17(a)(7). In that case, the former wife was awarded in the

divorce proceeding, inter alia, a lien upon her ex-husband’s

Navy retirement benefits to secure payment of $46,779.41

which represented an advance to the community from her

separate estate. Shortly thereafter, the ex-husband filed a

petition in bankruptcy, and both the bankruptcy referee and

the district court determined that the former wiie’s right to the

retirement benefits was a dischargeable debt. On appeal, the

issue presented to this Court was whether the former wife’s

right to the $46,779.41 awarded by the divorce court, and

secured by the lien on the retirement benefits, was a dis-

chargeable debt, or whether it was exempt from discharge

under section 17(a)(7). This Court, although recognizing that

Office of the Judge Advocate General, Department of the Amny, by letter of

May 23, 1980, informed counsel for both parties that the Department of Defense _

Military Pay and Allowances Entitlements Manual was amended on December 19,

1977, to permit retired military members to authorize allotments to former

spouses. It does not appear from the record that defendant has ever attempted to

secure such an allotment. Absent a showing that defendant attempted to secure

such an allotment, and that such an application was rejected by the Army,

defendant's attack on the district court’s order cannot be sustained.

? Defendant’s bankruptcy proceedings were conducted prior to the effective

date of the Bankruptcy Reform Act of 1978. 11 U.S.C. § 101, et sec.

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alimony after divorce is not permitted in Texas, Francis v.

Francis, 412 $.W.2d 29, 32 (Tex.1967), also noted that under

the scheme of the Texas Family Code, a divorce court is

authorized to divide the separate and community property

between the parties in a just and equitable manner, and that

[fJactors which the Texas courts may take into

account in making the division and award “include the

disparity of the earning power of the parties as well as

their business opportunities .... the physical conditions

of the parties, probable future need for support, and

educational background; ... [t]he fault in breaking up

the marriage and the benefits [the] innocent spouse

would have received from a continuation of the

marriage ....

506 F.2d at 1026, (emphasis in original), quoting Cooper v.

Cooper, 513 S.W.2d 229, 233-34 (Tex.Civ.App. — Houston

[1st Dist.] 1974, no writ). The Court also observed that, under

Texas law, the future support of a former spouse “can play a

significant role in the divorce court’s property division and

that what may appear to be a mere division of assets may in

fact, under a Texas decree, contain a substantial element of

alimony-substitute, support or maintenance, however,

termed,” 506 F.2d at 624. Finally, this Court noted that the

Texas Supreme Court has recognized that support payments,

although considered alimony in other states, are not so charac-

terized in Texas. See Francis v. Francis, 412 S.W.2d at 82-38.

Consequently, this Court determined that, for purposes of

interpreting the federal bankruptcy laws, a federal court is not

bound by the label that a state attaches to an award, but rather

must look to its substance, and held that the award fell within

the exception from discharge contained in section 17(a)(7).

506 F.2d at 1027.

Relying upon Nunnally, the district court in the case sub

judice held that plaintiff's right to her share of defendant’s

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retirement benefits was a nondischargeable obligation for

“alimony due or to become due, or for maintenance or

support”’ under section 17(a)(7). In Matter of Crist, 632 F.2d

1226 (Sth Cir. 1980), which also involved the question of

nondischargeability under section 17(a)(7), this Court stated:

Under the relevant standard of review, findings of

fact are not to be disturbed unless clearly erroneous.

“The test ... is not whether a different conclusion from

the evidence would be appropriate, but whether there is

sufficient evidence in the record to prevent clear error in

the trial judge’s findings.”

quoting Matter of Bardwell, 610 F.2d 228, 230 (Sth Cir.

1980).

Defendant argues that, although correct at the time it was

decided, Nunnally has been undermined by subsequent deci-

sions holding that, for purposes of the federal government’s

consent to suit, a division of military retirement benefits in a

Texas decree is not “alimony” within the meaning of the

Social Security Act, 42 U.S.C. §§ 659, 662(c). See United

States v. Stalter, 567 S.W.2d 797 (Tex.1978); see also Marin

v. Hatfield, 546 F.2d 1230 (Sth Cir. 1977). Defendant’s

reliance upon the principle espoused in Stalter and Marin is

misplaced. First, it is significant that neither decision involves

the Bankruptcy Act; moreover, in neither decision did the

Court mention, much less disapprove, this Court’s decision in

Nunnally.

[4] Of more substance is the fact that the rule expressed

in Stalter and Marin is inapposite to the question presented in

Nunnally and in the case sub judice. In Stalter and Marin the

courts held that, for purposes of determining the extent of the

federal government’s consent to suit, military retirement ben-

efits awarded under a Texas decree are not “alimony”’ under

Texas law. In Nunnally, however, this Court addressed the

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separate and distinct question of whether, for purposes of

applying the federal bankruptcy laws, such benefits, although

not “alimony” under state law, nonetheless may contain a

substantial element of “‘alimony-substitute, support or mainte-

nance, however termed.” 506 F.2d at 1024.” The Court’s

affirmative answer in Nunnally is supported both by reason

and precedent. In Matter of Crist, 622 F.2d at 1232, this Court

reiterated the well-established policy of “liberal construction

of the Bankruptcy Act in light of the purpose of the provision

under consideration.” Also in Crist, this Court stated the

purpose underlying section 17(a)(7) as follows:

“The bankruptcy law should receive such an inter-

pretation as will effectuate its beneficent purposes and

will not make it an instrument to deprive dependent wife

and children of the support and maintenance due them

from the husband and father, which it has ever been the

purpose of the law to enforce.”

682 F.2d at 1233; quoting Wetmore v. Markoe, 196 U.S. 68,

24 S.Ct. 172, 175, 176, 49 L.Ed. 890 (1904). The essence of

this Court’s decision in Nunnally is that, regardless of how a

state may choose to define “alimony,” a federal court, for

purposes of applying the federal bankruptcy laws, is not

bound to the label that a state affixes to an award, and that,

consistent with the objectives of federal bankruptcy policy,

the substance of the award must govern. 506 F.2d at 1027. In

the present case, as in Nunnally, the award contains an

element of “alimony substitute, support or maintenance, how-

ever termed.” 506 F.2d at 1024. Consequently, the district

court’s finding that plaintiff’s right to her share of defendant’s

> This reasoning also distinguishes Harbour v. Harbour, 590 S.W.2d 828

(Tex.Civ.App. — Houston [14th Dist.] 1979). In any event, contrary to defendant’s

assertion, the court in Harbour did not reject Nunnally, but rather held that plaintiff

in that case failed to prove that the lump sum award of $25,000 was in the nature

of alimony, support or maintenance.

A-135

retirement benefits was nondischargeable under sec-

tion 17(a)(7) is not clearly erroneous, and must be affirmed.

Il.

[5] By way of alternative argument, defendant asserts

that even if the section 17(a)(7) exemption from discharge

applies to the award in this case, that statute nonetheless is

unconstitutional, and an exemption from discharge should not

be recognized. Defendant argues that section 17(a)(7) creates

a gender-based classification in violation of the equal protec-

tion component of the fifth amendment because it exempts

from discharge only those obligations “for alimony due or to

become due, or for maintenance or support of wife or

child....” (emphasis added). This argument was raised in

Matter of Crist, 632 F.2d 1226 (Sth Cir. 1980). In Crist this

Court acknowledged that the sex-based classification con-

tained in section 17(a)(7) was constitutionally infirm, but held

that the appropriate remedy was not to strike down the entire

statute, but rather to extend the benefits of section 17(a)(7) to

the excluded class, i.e., to allow both former husbands and

wives receiving alimony or maintenance or support to assert

the non-dischargeability of the ex-spouse’s obligation under

section 17(a)(7). Consequently, defendant’s argument to the

contrary must be rejected.

IV.

[6] Finally, defendant, argues that because a bankruptcy

court has jurisdiction to determine the dischargeability of a

debt, the district court in the case sub judice erred in perma-

nently enjoining defendant from proceeding against plaintiff

for civil contempt in the Missouri bankruptcy court. This

argument cannot be sustained. Although subsection 17(a)(2)

of the former Bankruptcy Act enumerated certain categories

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of debts for which dischargeability could be determined only

in the bankruptcy court, and section 14(f)(2) provided for an

injunction against proceedings in other courts to enforce those

obligations, the 1970 amendments to the Act moved claims

for alimony, maintenance and support from_ subsec-

tion 17(a)(2) to 17(a)(7), and thereby provided that, with

regard to those claims, the bankruptcy court possessed only

concurrent jurisdiction with other courts and no injunction

prevented the subsequent assertion of those claims. See 1A

Collier on Bankruptcy $f 14.69, 17.01, 17.18, 17.22A (14th

ed.).* Inasmuch as defendant’s discharge did not operate to

enjoin plaintiff from litigating the issue of nondischargeability

under section 17(a)(7) in the present action, defendant’s civil

contempt proceeding in the bankruptcy court constituted noth-

ing more than an attempt to relitigate the district court’s

determination of nondischargeability in that forum. Conse-

quently, once the district court in the case sub judice deter-

mined that defendant’s obligation to plaintiff was not

dischargeable, the court properly acted to prevent the relitiga-

tion of that issue in the bankruptcy court.” 28 U.S.C. § 1652;

* Although defendant could have moved the bankruptcy court, pursuant to

Rule 409(a)(1) of the Rules of Bankruptcy Procedure, for a determination of the

dischargeability of plaintiff's claim to her share of the retirement benefits, and

thereby obtained the injunctive relief authorized by section 17(c)(4) and

Rule 401(e) of the Rules of Bankruptcy Procedure, he chose not to do so. See 12

Collier on Bankruptcy 9 401.7 (14th ed.).

* Defendant's motion in the Missouri bankruptcy court alleged that plaintiff's

claim in the present case was for >roperty wrongfully converted, a claim under

section 17(a)

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