Nancy Marie Peck v. Wayne Cody Peck ( 2015 )

ACCEPTED
03-14-00440-CV
3930522
THIRD COURT OF APPEALS
AUSTIN, TEXAS
No. 03-l4-00440-CV
1/28/2015 12:15:54 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF
APPEALS THIRD JUDICIAL FILED IN
DISTRICT AUSTIN, TEXAS 3rd COURT OF APPEALS
AUSTIN, TEXAS
1/28/2015 12:15:54 PM
JEFFREY D. KYLE
Clerk
NANCY MARIE PECK,
Appellant
V.
WAYNE CODY PECK,
Appellee.
Appealed from the County Court at Law No. 4
Williamson County, Texas
APPELLEE'S BRIEF
Attorney for Appellee
Felix Rjppy
No 16937400
Texas Bar .
RIPPY & TAYLOR, PC
3000 Joe DiMaggio Blvd.
Ste.4
Round Rock, Texas 78665
Tel: (512) 310-9500
Fax: (512) 310-2580
Email felixrippy@aol.com
:
APPELLEE REQUESTS ORAL
ARGUMENT
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No. 03-14-00440-CV»
NANCY MARIE
PECK,
Appellant,
V.
WAYNE CODY PECK,
APPELLEE.
IDENTITY OF PARTIES 8:
COUNSEL
Nancy Marie Peck, Appellant herein, brought this appeal seeking relief
from the Third Court of Appeals In order that the Court may determine
.
disqualification and recusal under Rule 16 of the Texas Rules of Appellate
Procedure Appellee Wayne Cody Peck certifies the following is a complete list
of the parties attorney, the trial court judge, and any other person w ho had an
,
,
interest in the outcome of the underlying lawsuit.
Appellant Appellee
Nancy Marie Peck Wayne Cody Peck
Petitioner in 13-0926— Respondent in 13-0926-
F C4 FC4
Attorney for Appellant _John J. Hindera, J.D., Ph.D.
Texas Bar No. 24037682
THE HINDERA LAW FIRM
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4425 5- M01330 Attorney for Appellee
Expressway Building 2 , Felix Rippy
Suite 107 Texas Bar No 16937400
.
Austin Texas ,
RIPPY & TAYLOR, PC
78735 Tel: (512) 3000 Joe DiMaggio BlVd., Ste.4
8993531 Round Rock, Texas 78665
Fax: (512) 899-3618 Tel: (512) 310-9500
Email: john@
'
Fax 5 (512) 310-2580
Email :
felixri aol.com
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TABLE OF CONTENTS
IDENTITY OF PARTIES & _
COUNSEL
7
............................................................................................ ..2
TABLE OF CONTENTS ..................................................................................... .. 4
INDEX OF AUTHORITIES .............................................................................. .. 5
STATEMENT OF THE CASE .......................................................................... .. 7
ISSUES PRESENTED ......................................................................................... .. 8
STATEMENT OF FACTS ................................................................................ .. 9
SUMMARY OF THE ARGUMENT .................... .._ .......................................... .. ll
ARGUMENT
Issue 1: discretion by holding against the great
The trial court abused its
weight of the evidence that Appellant's ability to provide for her minim u in
reasonable needs is not substantially or totally diminished because of a
physical or mental
disability ............................................................................................................... ..
.................. .. 10
Issue 2: The trial court abused discretion by not requiring Appellee to
its
prove by clear and convincing evidence that a certah monies are effectively
separate property .................... .. 14
PRAYER ........................................................................................................... .. 24
CERTIFICATE OF SERVICE ......................................................................... .. 18
APPENDIX
Entirety of Volume 2 of the Court Reporter’s Record ................................. ..
............... ..EXHIBIT A
Entirety of Volume 3 of the Court Reporter’s Record ..................... ..
.......................... ..EXHIBIT B
Page 4 of
I
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Entirety of Volume 9 of the Court Reporter’s Record
.................................................. ..EXHIBIT C
INDEX OF AUTHORITIES
CASES
Nelson V. Najm, 127 S.W.3d 170, 174 (Tex.App.—Houston [1stDist.] 2003, pet.
denied) ...... ..13
City ofKe11er V. Wilson, 168 S.W.3d 802 (Tex. 2005) ..................................... ..
.................. ..13
McCarm V. McCann, 22 S.W.3d 21 24 (Tex.App -Houston [1411 Dist.] 2000
,
. ,
pet. denied)....13
McKinley v. McKinley 496 S.W.2d 540, 543 (Tex
,
.
1973) ....................................................... .. 13
Stavinoha V Stavinoha, 126 S.W.3d 604, 608 (Tex .App- Houston [14lhDist.]
.
15
2004) .................................................................................................................. ..
Estate of Hanau v. Hanau, 730 S.W.2d 664, 666-67 (Tex. 1987); Carter
v. Carter,
736 S.W.2d 775, 777-80 (Tex. App.—Houston [14thDist.] 1987, no writ);
Holloway v. Holloway, 671 S.W.2d 51 (Tex. App.—Da11as 1983, writ dism’d);
Huval v. Huval, 2007 WL
1793771 (Tex. App.—Beaumont 2007, no
In re J.D.D., 242 S.W.3d 916, 920 (Tex. App.—Dal1as 2008, pet. denied). Iliff
V.
Iliff, 339 S.W.3d 74, 80 (Tex. 2011) (disapproving
of DuBois v. DuBoz's, 956
S.W.2d 607 (Tex. App.—Tyler 1997, no pet.) (citing Murflv. Murff, 615 S.W.2d
696, 700 (Tex. 1981) ......................................................................... ..18
RULES
None
STATUTES
TEX. FAM. CODE § 8.051 ................................................................................ .. 10
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TEX. FAM. CODE § 8.051(2)(A) ....................................................................... .. 12
TEX. FAM. CODE §
3.003(a) .................................................................................................... .. 16
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STATEMENT OF THE
CASE
This is an appeal from a divorce lawsuit without children. After a
two-day bench trial, and after a prior temporary orders hearing as well, the
court found that Appellant should be “limited” to FIVE years of alimony after
the divorce. The Court also ruled that Appellee should be awarded 100% of
the monies in a Morgan Stanley account regardless of the account’s
characterization. Those were the only disputed issues presented to the trial
court. The rest of the property was divided by stipulation in proposed support
decisions that the Trial Court saw but that are not part of this record.
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ISSUES PRESENTED
Issue Appellant contends in their 12-30-14 brief that the trial
court abused its discretion by holding against the great weight
of the evidence that Appellant's ability to provide for her
minimum reasonable needs is not substantially or totally
diminished because of a physical or mental disability. This is a
strange contention since Appellant was actually awarded 5 years
of alimony with absolutely no evidence in the record of property
awarded to her being “insufficient income” or of “minimum
reasonable needs.”
Issue Appellant contends that the trial court abused its discretion
by not requiring Appellee to prove by clear and convincing
evidence that a certain single account was “effectively
separate property.” Also a strange contention since there is no
evidence in the record of the value of awards of any other
property and in fact those awards were stipulated.
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STATEMENT OF FACTS
Appellant and Appellee were married on June 24, 1989, and Appellee
graduated from the U.S. Military Academy thereafter serving his country and
rising to the rank of Major. At all times relevant to the underlying divorce
lawsuit, Appellee was an officer in the United States Army.
In approximately 2002, Appellant argues that she became “unable to
work at her chosen profession” as a registered nurse because of several chronic
physical illnesses and mental disorders. Actually she was fired and began
abusing prescription drugs, as the Court determined. This choice to engage in
prescription drug abuse, along with Appellant’s ability to do any number of jobs
competently, continues to the present day.
Ten years after she quit working, in 2011, Husband/Appellee filed for
divorce, generously delaying the final hearing in the case until two full years after
the temporary orders were issued, the sole purpose of this VOLUNTARY
DELAY’S being to provide for Appellant/Wife the very useful 20/20/20 lifetime
Tri-Care medical care available to spouses of retired military personnel. Instead
of showing gratitude, Appellant took advantage of Appellee’s paying the
mortgage on the empty personal residence and simply lived elsewhere (in her
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parents’ “winter home”) to taunt Appellee/Husband. Appellant/Wife also
constantly emailed Appellee/Husband making incoherent demands for return of
unnamed personal items, a 20 page list of which Appellant/Wife brought to Court
and which the Judge summarily denied. Ironically, the Appellant/Wife admits in
her brief to this court that the February 20, 2012 mediated agreement essentially
gave her everything she had asked for including ALL of her allegedly missing
personal items and which AGREEMENT also prevented the divorce from being
finalized until Wife/Appellant was fully qualified for Tri-Care - i.e. lifetime free
medical insurance along with two years of temporary alimony. Also contrary to
Appellant/Wife’s rendition of the facts, and the attached record of testimony,
Appellee never attempted to “set aside” the mediated agreement, and the Trial
Court most certainly did not sympathize with Appellant/wife by rendering
any orders that “held the parties to their agreement.” If the Trial Court had
“held the parties to their agreement,” there would be no appeal-—Wife/Appellant
would not be appealing her own agreement, would she?
Also important in this case is the well know adage that the trial court gets to
judge the credibility of the witnesses. What Appellant/Wife conveniently leaves
out is that when the case came on to be heard in a bench trial on March 17-18,
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2014, the trail court witnessed the miraculous physical recovery that
Wife/Appellant seemed to have made since the temporary orders. Her in—Court
histrionics laid waste to the Court’s assessment of her veracity and simply
nothing she said was believable. She had com.e to previous hearings in or with a
wheelchair and now seemed to be “cured.” Finally, the Appellant/Wife seems
hung up on the peripheral and unimportant issue of exactly when the trial Court
granted the divorce. The trial court most certainly did grant the parties their
divorce on March 18, since the “subsequent hearing” counsel references as being
held on May 8 of 2014 was a “motion to enter” which means of course “motion
to enter judgment.” Such a motion cannot be heard unless judgment had been
granted, of course. Not that any of that is relevant of course, but it is typical of
Appellant/Wife’s pitiful attempts to obfuscate the real issues while continuing to
malinger and avoid work—and to continue her prescription drug abuse.
SUMMARY OF THE ARGUMENT
Wife/Appellant's first argument challenges the sufficiency of the
evidence supporting the trial court's finding that she is not entitled to spousal
maintenance. Of course the trial Court did award her 5 years of spousal
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maintenance. What Wife/Appellant seems to mean is that she needs MORE
alimony. To get to this point, Wife/Appellant must argue that the grrly
evidence adduced at trial that she was Q entitled to spousal support
was simply the Court’s “court's experience with this particular mixture of
medicine." Instead, however, there was abundant testimony—— over and
above simply judging Wife’s credibility through her awful and untruthful
demeanor-- that she was not in any way entitled to more continuing support
of her bad habits than the Court awarded. Wife/Appellant simply
regurgitated over a thousand pages of medical records -—none of which stated
that she could not work. She offered no expert testimony on this subject
whatsoever, except of course her own unbelievable testimony. The bottom line is
that with NO evidence of the property values that wife was awarded in the record,
the Court’s generous 5-year award must either stand or NO alimony whatsoever is
appropriate.
Wife/Appellant 's second argument is that Appellee ‘s evidence was
grossly insufficient to support the trial court’s award to him of the entirety of
a certain Morgan Stanley/Smith Barney account. That is a peculiar argument
since the Appellee introduced not only his own testimony but the actual probate
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records showing his inheritance of this account in a LARGER amount of money
than was in the account at the time of trial. If the Court had really ruled that this
account was separate property, Husband/Appellee should be awarded
substantial reimbursement, and indeed he would be upon a retrial. But the
bottom line is that as with the alimony award, the division of property was
largely agreed and there was thus no evidence in the record of who was awarded
what. The record is clear that the division of property was so one sided in this
case IN THE WIFE’S FAVOR, that when coupled with the generous agreement
by Husband/Appellee to wait to divorce until lifetime medical insurance could
be obtained for Wife/Appellant, husband was awarded the entirety of the account
in question. There was no evidence put in the record of the values of any other
property awarded, so the Appellate Court presumes the award to be just and
right. Wife cannot agree to a one sided property division in her favor and now
complain about it with no record.
ARGUMENT
Issue 1: Appellant contends that the trial court abused its discretion by
holding against the great weight of the evidence that Appellant's
ability to provide for her minimum reason able needs is not
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substantially or totally diminished because of a physical or mental
disability. This is not the issue. The issue is whether the Court could
grant 5 years of alimony as it did with no proof in the record of either
income or needs of Wife nor value of any other property awarded to
Wife. There simply is no basis for any award of alimony of any
kind.
Appellant/Wife admits in her brief that she had at trial the burden of
proof to show her need for post-marital alimony} Appellant, however,
misstates the test for receiving alimony in Texas. The eligibility requirements
are a two—prong test. The first prong deals with Dropertv and not with medical
condition. This first prong must be satisfied by any spouse to whom post
divorce spousal maintenance is awarded: A court may only order payment of
spousal maintenance if the spouse seeking maintenance will lack sufficient
property, including the spouse's separate property, on dissolution of the
marriage to provide for the spouse's minimum reasonable needs. TEX. FAM.
CODE §8.05l. This first prong means that the amount of property that a spouse
receives affects the eligibility for alimony. This prong is the primary one at
issue in this case...did the wife regardless of condition get enough property to
meet her minimum reasonable needs? In this regard, first it should be noted
that there was NO testimony offered by Wife as to what her “needs” actually
‘Appellant states in her brief to the Court that she “isirequired to prove she is unable to
earn sufficient income to provide for her minimum reasonable needs because of an
incapacitating physical or mental disability.” (Citing TEX. FAM. § 8.051(2)(A). CODE
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were or as to the dollar amount of the property that she was awarded...and the
burden is on her to do so. Wife was awarded 60% of the sale price of a house,
but no value is ever assigned by Appellant to this house, nor to the accounts
that were awarded 60% to Appellant as well. Vol. 2 at 24: 20-23; Vol. 3 at 43:
7-19. This is not due to some omission by counsel, but rather due to the fact that
the property in this case was divided by agreement and stipulation. The only
evidence in the record is that Wife had been receiving $2000 per month in support
plus a $1500 mortgage payment since the two-year old temporary orders began,
Vol. 2 at 27: 10-15, and she continues to receive after the divorce far more
money per month than most Americans earn...Wife/Appellant admits that her
continuing share of Appellee/Husband’s retirement is “around” $1800 per
month, Vol. 2 at 11: 1-5 and she then offers no further evidence of any kind of the
amounts of money in any of the accounts she was awarded, or from the sale of the
home that was ordered and occurred, although those amounts are so hugely
substantial that the Court awarded to Appellee the $41,000 Morgan Stanley
account also at issue in this case “regardless of its characterization.” Vol. ‘3 at 43:
12-15 In addition to offering no evidence of the property she was awarded’s
values, it is uncontroverted that Wife offered no evidence of her needs. She
was, however, awarded $2500 per month for two years, $2000 for 3 years, Vol. 3
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at 44: 11-15, and there is no evidence whatsoever in the record that these amounts
will not meet her minimum reasonable needs or even what the other amounts of
property are that she is receiving. Of course, it is also uncontroverted that
Appellant/Wife lives in her parents’ “winter home” Vol. 2 at 65: 22. And “has
paid” $39,417 in legal fees at the time of the trial. Vol. 3 at 41: 8. Appellant/Wife
has substantial separate property assets, none of which were valued to the court,
and she provided no proof of any of her needs nor of the amount of property she
received in the community property division. Thus she is NOT entitled to alimony
whatsoever, although she was awarded 5 years of it.2
So, Appellant/Wife fails the first prong of the alimony test. There just isn’t
evidence of her separate or community property’s values or of her needs.
Assuming for the sake of argument that she had passed this prong, and shown the
values of what she was awarded failed to meet her needs, which she did not, her
Wife/Appellant was actually awarded very close to her actual request of the court from
Zln fact,
a monetary standpoint compared to what she said she was seeking, which was as follows per Vol. 2 at
74: 7-13:
“Q. (By Mr. Hindera) You want 50 percent of the retirement -- the military retirement, correct?
A. Yes.
Q. And you want Wayne Peck then to make up the
rest of that to get you to the level that you're at now?
A. To the 3,000.
Q. Yes, ma‘am.”
This exchange means that Appellant was only asking for $1200 per month, over and above the
retirement that would be awarded to her, although the time period she was seeking it is rather indefinite
as will be discussed below. Do these amounts meet her needs? There is no evidence. But she is
asking for them so they must meet her needs, and the other property she was awarded meets this
request by her.
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A Is that right, Mr. Hindera.
MR. HINDERA: He paid her spousa1 support
during the pendency of this.
THE COURT: I kaow, Mr. Hindera.
:54 MR. HINDERA: And I think that's a
O(Dm\lO5U'I-5>OJl\J
Tegitimate argument that Mr. Rippy is making. There's
actua11y -- the on1y account that is undisputed that is
separate property is this one that her parents have put
a11 of the money into themse1ves --
:54 A THE COURT: Any probTem with that?
A A MR. HINDERA: —- as a gift.
A N MR. RIPPY: That's in her name a1one. we
A (A)
concede that's her separate property.
A -5 THE COURT: That's resoTved.
:54 A
U‘!
MR. HINDERA: There are other accounts to
A C) which we've agreed to spTit those 60/40 except for the
A ‘I
Smith Barney account that Major Peck contends is his
A (X)
separate property.
A (O MR. RIPPY: That's a11 right.
:54 NO THE COURT: Okay. So the Smith Barney
NA account, what -— and what's in that account, Mr. Rippy?
l\) l\) MR. RIPPY: Approximate1y $40,000. He
l\) 0) inherited approximate1y $67,000. So he cou1d be making
M -h a separate property reimbursement c1aim of $27,000, but
:54 |\) O1 he's not. But he's certain1y -- even though both names
VIRGINIA BUNTING, CSR
(512) 940-6597
21
we concede are on that account, but they always have
been. And the only money that's ever gone in there was
from his inheritance, and they dipped into it during the
community and they spent over 20,000 of his inherited
dollars. And he could be asking for that. He's not,
:55
but what he is asking for is that that account be
OO'l-50310
confirmed as his separate property inheritance account.
I don't think anybody is going to contradict the fact
that 15 years ago his dad died and he inherited $67,000.
:55 _\ THE COURT: Just a minute. Let me catch up
_\ _\
to you.
.1
N Personalty is divided. Are there any,
_\ O0 Mr. Hindera, items of personalty that aren't in her
_\ -I3 possession that she wants that he has control over?
:55 _a 01 MR. HINDERA: Not that I'm aware of, Your
_x
Q Honor, but I'm sure Mr. Rippy and I will be able to work
_\ ‘I
that out.
.1
® THE COURT: I appreciate that. So what I'm
_\
(O going to basically at this point in time take as a
:55 l\)
O stipulated agreement is that what they have in their
l\) -3
possession, unless specified at the conclusion of
l\.)
N today's hearing, they keep.
l\) 0) MR. HINDERA: Yes, Your Honor. It's all on
N -|>
this list that I've handed you. They have agreed at
:56 l\3 O1 this point, whatever is on this list, she can have.
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(512) 940-6597
22
THE COURT: Is that your agreement,
Mr. Rippy?
MR. RIPPY: I think that's right. You
Tooks
know, this is a brand-new Tist today, but it
it's a TittTe
O1 :56 pretty much Tike the oTd Tist. In fact,
shorter than the oTd Tist. So if she's got in her
possession or it's in the house --
THE COURT: what I'm trying to do,
Mr. Hindera, is get some stipuTations before we begin
:56 your hearing.
MR. RIPPY: I think it's hers.
THE COURT:And so Tet's Tet him Took at
If they wiTT stipuTate to it, then I can
move on
it.
from personaTty._ Take your time.
:56 MAJOR PECK: Keep going and I wiTT Took
whiTe you're going.
THE COURT: ATT right. So I'm trying to
And it
find out whether we can stipuTate to personaTty.
Tooks Tike we're very cTose.
:56 MR. RIPPY: I think the answer is "yes."
THE COURT: So aTimony, 2,500 on his
behaTf. five years; 3,000 for 7 years on her behaTf.
That's where we're down on that.
Now, the separate account,
the Smith Barney -- what's in the Smith -— I know,
:56
VIRGINIA BUNTING, CSR
(512) 940-6597
27
_\
THE COURT: A11 right.
MR. RIPPY: Very good.
THE COURT: That reso1ves that issue.
MR. RIPPY: And we heard something about
02:01 attorneys’ fees. And the Court correct1y pointed out.
-‘OLDCD\lO5(J'l-h(AJl\)
I wasn't the attorney. I was hired to try the case. So
way back when, apparently there were a coupTe of
hearings on temporary orders. The resu1ts of which
were, as the Court a1so correct1y pointed out, that my
02:02 c1ient paid 2,000 a month, p1us another 2,000 for a
house where she's now getting 60 percent
_x_\
mortgage on a
.4 I9 of the equity. So my point is if the Court didn't award
._\
(A3
attorneys‘ fees at that time, 1et's not retry the
A -F temporary orders.
02:02 _x U1 MR. HINDERA: I understand —- before we put
_\ O3 him for the A1bert Schwitzer Award, p1ease understand we
_\
\l
did go to the Army under 608-99 and make him pay for his
_\
W spouse. we tried to p1ay this as easi1y as we cou1d and
_\
(O as Tight-handed as we cou1d, Your Honor.
02:02 MO THE COURT: I certainiy, CounseT, don't
N _x
view him as A1bert Schweitzer by a Tong shot. Let me --
I\) l\) I'm just at this point in time going to focus
I
l\) (.0
everyone -- because you're, obvious1y, inundated with
N -5 information. So what I want to do is get it short,
02:02 N) (J1
simp1e, and concise and make a decision and get them
VIRGINIA BUNTING, CSR
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28
A divorced, which they -- a divorce which they both
obvious1y sore1y need. And I'm going to ho1d your feet
to the fire.
It appears to me, Counse1, that they are
02:03
OLO®\lO>U'l-[>0-3N)
stipu1ating to a1imony beyond the three years, up to
five years. It's now a question do I go five or do I go
seven, correct?
MR. HINDERA: And, Your Honor, we're fine
with five because of the period we're asking. And,
02:03 A actua11y, I wou1d be shocked if there isn't a finding of
A A disabi1ity, but whether it's five or whether it's three
A |\) or whether it's seven, she's going to have to come back
A (.0 and prove that from time to time. So I'm fine with the
A -F five years.
02:03 A U1 THE COURT: I think what you might want to
A 03 do, you may want to put your information on whether or
A \l
not she's tru1y disab1ed.
A 00 What's your position on this, Mr. Rippy?
A (O MR. RIPPY: we11, Judge, I'm g1ad you
02:04 N)
O asked, because my opinion is it doesn't matter. You
l\) A know, we've stipu1ated she's either going to get five or
l\) l\J seven years, that's more than three, which is certain1y
|\) O.) what the Iaw in Texas was for a Tong time. So who cares
|\) -l> if she's disab1ed. We're going beyond -- you know,
02: 04 IO
U‘!
we're not stipu1ating, and even Mr. Hindera has not
VIRGINIA BUNTING, CSR
(512) 940-6597
29
_\
asked for some kind of Tifetime disabi1ity. So who
cares if she's disab1ed. We don't need to find whether
she's disab1ed or not. we've stipu1ated five years or
seven.
02:04 OtO®\l®U1-hOJI\')
THE COURT: I be1ieve that the code has
extended to three now.
MR. RIPPY: It has right around the time
this was fi1ed, out we concede because 20- to 30-year
marriages without disabi1ity now are e1igib1e for up to
02:04 _\
seven years. So we concede we'11 pay seven years, we
....\.
_|.
just want credit for the Tast two years. And so it
_\ l\) doesn't matter if she's disab1ed. The Court doesn't
_.x
(.0 need to hear any of the evidence on her disabi1ity.
_\
-l> It's either five or seven years.
02:04 _\ U1 MR. HINDERA: Then we can't stipu1ate to
.4
O’)
that.
A \l THE COURT: No, you can't.
_\
m MR. HINDERA: She qua1ifies under 8.054.
...x
(O THE COURT: Ho1d on just a minute, Counsei.
02:05 NO Let me catch up to you here. I want to review it again.
|\) _\
8.054?
l\) l\) MR. HINDERA: Yes. It's on Page 98,
N) 0.)
Your Honor.
l\) -h THE COURT: what's the duration of this
02:07 l\) 01 marriage again? 24 years?
VIRGINIA BUNTING, CSR
(512) 940-6597
the last will and testament of his father. Vol. 9 also includes the sworn inventory
from that court proceeding showing this inheritance. It is also not true that there
was any “contradictory” testimony regarding Appe1lee’s inheritance. Spousal
testimony that is uncontradicted is fully sufficient to constitute clear and
convincing evidence and establish the character of the account property. Texas
Commentators agree that different appellate courts have said different things
about the importance of a spouse’s ‘testimony of separate property. The cases as a
whole usually support the View that the uncorroborated testimony of a spouse is
more than a scintilla of evidence to support a finding of separate property. The
following cases upheld tracing of separate property assets through Various
accounts even though, in some instances some account statements were missing,
and in other instances no account statements at all were offered into evidence:
Estate ofHanau V. Hanau, 730 S.W.2d 664, 666-67 (Tex. 1987); Carter v.
Carter, 736 S.W.2d 775, 777-80 (Tex. App.—Houst0n [l4th Dist.] 1987, no Writ);
Holloway v. Holloway, 671 S.W.2d 51 (Tex. App.—Dallas 1983, writ dism’d);
Huval v. Huval, 2007 WL 1793771 (Tex. App.—Beaumont 2007, no pet.)
Finally, the division of property in this case was so one sided in FAVOR of
Appellant that the Court found that:
C2\Users\0wner\DoeumenIs\F0R\ClienlsM-P\peck appeal\1-21-15 appelleesbriefiwpd
Page 23 Of 25
“regardless of the classification of the property held in the
Morgan Stanley account, I'm awarding it in its entirety to him.
Regardless of the classification of the property contained in her
account that she says is her’ separate property , I will award entirely
to her."
The Appellant has the burden in the appeal of showing that the division
of property is somehow unjust or unfair, and as with her claim for additional
alimony, with no values in the record of anything awarded to anyone, the
Appeals Court must presume that the division is just and right since only the
trial court got to see the stipulated property division and proposed support
decisions of the parties?
PRAYER
Appellant introduced no evidence at trial of the value of anything that she
was awarded. Thus she is unable to meet her burden of showing that the property
division leaves her unable to provide for her minimum reasonable needs. Moreover,
3When reviewing evidentiary sufficiency, we view the evidence in the light most favorable
to the trial court’s actions, indulging everypresumption in favor of the judgment. In re J.D.D.,
242 S.W.3d 9l6, 920 (Tex. App.——Dal1as 2008, pet. denied). Iliff v. Iliff, 339 S.W.3d 74, 80 (Tex.
2011) (disapproving of DuBois v. DuBoz's, 956 S.W.2d 607 (Tex. App.—Tyler 1997, no pet.)
(citing Murfi’ v. Murff, 615 S.W.2d 696, 700 (Tex. 1981) (in resolving issues within its discretion,
the trial court is “empowered to use its legal knowledge and its human understanding and
experience.”)
C:\Users\Owner\Documen(s\FOR\ClientsM»P\peck appeal\1-Z1-15 appelleesbriefiwpd Page 24 Of 26
no medical records of any kind indicating that she had any physical or mental
disability that would prevent her holding a job and did not try to get ajob. With no
way to tell who was awarded what, this Court should reverse the trial court's order
that awards any alimony whatsoever. Similarly, Appellee did not have to carry
some burden of proof that the disputed account was his separate
property...although he did so both through his testimony and through Volume 9
of the trial exhibits. Appellant failed to show the trial court any values
whatsoever of anything that she was awarded, including her own separate
property account, and so the trial court ‘s order that awarded this disputed
account to Appellee cannot be attacked now.
Respectfully submitted,
_/s/ Felix Rippy
Rippy & Taylor, PC
3000 Joe DiMaggio, Suite 4
Round Rock, TX 78665
(512)310-9550
fe1ixrippy@aol.com
CERTIFICATE OF SERVICE
I certify on January 20, 2015 a true and correct copy of the
that ,
foregoing Appellee's Brief was served on Appellant, Nancy Marie
Peck, by and through her attorneyof record John J. Hindera, by ,
certified U.S. mail, return receipt requested to 4425 MoPac South, ,
Building 2, Suite 107, Austin, TX 78735 and via email at ,
rvmpeck appeal\l-26-l5«2 appelleesbriefipdfiwpd
Page 26 Of 27
C:\Users\0wner\Documents\FOR\ClienIs
john@hinderalaw.com .
/s/ Felix Rippy
Felix Rippy, SBOT 16937400
RULE 9.4(I)(3) CERTIFICATION
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 4861 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).
___/s/ Felix Rippy
Felix Rippy, SBOT 16937400
CI\Users\Owner\Docurnents\FOR\ClientsM-P\peck appeal\1-26»15-2 appellees brief.pdf.wpd Page 27 Of 27
Exhibit A
REPORTER'S RECORD
VOLUME 2 OF-9 VOLUMES
CAUSE NO. 13-0926-FC4
COURT OF APPEALS NO. 03-14-00440-CV
IN THE MATTER OF IN THE DISTRICT COURT
THE MARRIAGE OF
NANCY MARIE PECK at-at-ll-1!-3!-=1-X-=(-=l~
WILLIAMSON COUNTY, TEXAS
AND
WAYNE CODY PECK COUNTY COURT AT LAW N0. 4
REPORTER'S RECORD
MARCH 17, 2014
FINAL HEARING
On the 17th day of March, 2014, the
fo11owing proceedings came on to be heard in the
above—entit1ed and numbered cause before the
Honorabie John B. McMaster, Judge Presiding, he1d
in Georgetown, W11 Tiamson County, Texas.
Proceedings reported by computerized
stenotype machine.
VIRGINIA BUNTING, CSR
(512) 940-6597
_.x
APPEARANCES
MR. JOHN J. HINDERA, J.D., PH.D.
THE HINDERA LAW FIRM
’
SBOT NO. 24036782
4425 MoPac South
Bu11d1ng 2, Suite 107
Austin, Texas 78735
Of.DG>\lO§U'|-l><.->l\.'>
(512) 899-3631
(512) 899-3618 Fax
ATTORNEY FOR THE PETITIONER
MR. FELIX RIPPY
RIPPY, HENDERSON & TAYLOR, PC
SBOT NO. 16937400
3000 Joe DiMaggio, Suite 4
...x
Round Rock, Texas 78665
(512) 310-9500
_.x
(512) 310-2580 Fax
ATTORNEY FOR THE RESPONDENT
_x
_;
M
.—.l 03 ALSO PRESENT:
_x
-# Mr. Wayne Cody Peck
Ms. Nancy Marie Peck
_L U1
_; O)
a. ‘I
._\
GD
_\
©
NO
[0 _\
l\) N)
|\) (A3
IO -h
l\> U1
VIRGINIA BUNTING, CSR
(512) 940-6597
44
...x
the objection wou1d be narrative answer maybe, but I
suppose we'T1 Tet her start without objecting.
THE WITNESS: I mean, I can try to do it on
my own --
02:25 O«J®\lO5U'I-l>(a>l\>
THE COURT: Ma'am, at this point in --
THE WITNESS: -- but I might not get it
a11 --
THE COURT: Ma'am, at this point in time, I
just want you responding to questions but not offering
02:25 _\
information that is not responsive to a question.
_\ _x
THE WITNESS: I'm sorry, Your Honor.
_\
I\J
THE COURT: Mr. Hindera, if you would Tike
_\ (.0
to do this in question and answer, I be1ieve that wou1d
_\
-F be the more appropriate mechanism.
02:26 _x 01
MR. HINDERA: Thank you, Your Honor.
_n O?
Q. (By Mr. Hindera) Ma'am, do you have some
_\ ‘I
hypermobi1ity probTems?
_x on A. Yes. I have a deficit -- a genetic deficit in
_\ «D
my connective -- co11agen in my connective tissue.
02:26 NO Q. And when did you first become aware of that
R) _x
condition?
NN A. They were -- it took them a few years to
I
‘
l\) Ca)
diagnose it.
l\) -F
Q. when did you first attempt to have it
02:26 M 01 diagnosed?
VIRGINIA BUNTING, CSR
(512) 940-6597
45
—.l
A A coup1e of years before the Mayo C1inic visit.
0 So approximateiy 2010?
A. Yeah, you have the records on that.
0 Okay. As we sit here today, is it your
02:26 understanding that you have been diagnosed with
O<.0l\)
Jessica Horwath, PA-C)
[Mistaken1y referred to
as Exhibit 6 in the Record]
20 Records 56 56
(Medica1 C1inic of North
Texas P.A.,
_\
Awi1da M. Luciano, M.D.)
_\ _\
[Mistaken1y referred to
as Exhibit 18 in the Record]
_\ l\)
21 Records 50 51
.5 03 (Neuropsycho1ogy Services
of Austin P.C.,
_; -l=-
wi11iam A. Dai1ey, Ph.D.)
_\
U‘!
22 Records 58 58
(Robert Bur1ingame, M.D.
._L
07 P.C.)
_\
V 23 Records 47 48
(Scott & white Hea1thcare)
_\
W
28 Records - Mayo C1inic 67 XX
_\
(9
29 Latest Records 68 XX
NC (C1audio Ghio, L.P.A.,
L.S.S.P.)
IU _\
N) I\)
IO (:0
N -B
l\) 01
VIRGINIA BUNTING, CSR
(512) 940-6597
PROCEEDINGS
N) MARCH 17, 2014
THE COURT: A11 right. Lawyers, this is
Cause No. 12-0349 Peck. Can I have an announcement,
01:36 p1ease.
O(Dm\lO'20'|-B00
MR. HINDERA: Your Honor, John Hindera for
Petitioner, Nancy Peck.
MR. RIPPY: And; Judge, Fe1ix Rippy for
Respondent, who is Major Wayne Peck.
THE COURT: A11 right. W111 the parties
p1ease rise. Raise your right hands.
12 (Parties sworn by the Court)
13 THE COURT: A11 right. And I be1ieve --
14 Mr. Rippy, are you Petitioner?
15 MR. RIPPY: Actua11y, I think Nancy Peck is
16 the Petitioner. I
I
THE COURT: A11 right. Mr. Hindera, I'd
17
18 1ike an opening statement, p1ease.
19 MR. HINDERA: Your Honor, this is a
20 24-year, maybe 25-year at this point marriage in June.
21 The parties do not have any chi1dren who are before the
22 Court. In that respect, it's a property case.
23 As you wi11 see, this case began under some
24 fair1y egregious facts as far as my c1ient is concerned,
25 and we'11 1ay that out for the Court. Mr. Major Peck is
VIRGINIA BUNTING, CSR
(512) 940-6597
_;
getting out of the mi1itary here in August. At this
point, Ms. Peck is going to get her share of the
retirement, but we don't know yet what he's going to do
as far as the disabi1ity that he gets to c1aim, which
:38
OLOm\lO>U'|-#0-7|\)
then subtracts from the retirement. And they've been
fidd1ing around with that Taw.
Now, I beiieve that we have agreed that the
persona1 property, the community property, the
spreadsheet that Ms. Peck has created --
:38 _x
THE COURT: Ms. Peck created this Tist?
_x ._n
MR. HINDERA: I've got the Tonger one, if
_\ I\J
you wou1d Tike.
_\ 00 THE COURT: No, that's okay, Counse1. This
...x
-h is unique.
:39 _\
U! MR. HINDERA: And they've agreed that the
..A
03 persona1 property is hers, and then there is a common
.5 \l
property that is community property. So the separate
_\
(D property is Ms. Peck's. The community property,
—L
‘.0 Mr. Major Peck -- and I apo1ogize -- Major Peck took
:39 NO from the house what he wanted. Certain items were Teft
|\) _\
in the house, which we know now as of Saturday has an
NN offer and acceptance to se11. But they've agreed that
N3 00 the common property, everything that's in that Tist goes
N -b to Ms. Peck.
:39 I\) O1 we have agreed to a 60/40 sp1it on the
VIRGINIA BUNTING, CSR
(512) 940-6597
_.x
proceeds of the house. There is a spousa1 support
payment that hasn't been made for the 1st of March and
the 15th of March yet by Major Peck. There's also a
house payment that hasn't been made. And Ms. Peck wou1d
:40
OCDGDNIQUI-l>(»Jl\)
Tike to make sure that doesn't affect her credit.
There is a separate IRA that is Ms. Peck's
that is nothing more than -- the on1y thing in there is
what her parents have put in, and the account number
ends in 0224. It is a Smith Barney account.
:40 .3
There is a disputed Smith Barney account
._x
_\
that Mr. Peck —- Major Peck has, which started out at
.4. N)
Morgan Stan1ey, but now it's at Smith Barney. They
_\
O.)
changed -- we11, is it Smith Barney?
._x
-I5 THE COURT: If I can get everybody -- I
_\ U1 kind of want to narrow your focus here just if you wou1d
_\ O) for a moment, Counse1.
_\
\l MR. HINDERA: Okay.
..\
CD THE COURT: what is in dispute?
_\ «J MR. HINDERA: The only things that are in
l\) O dispute is how much the spousa1 maintenance wi11 be. we
N ...x
want a disabi1ity finding from this Court, and we're
N) l\) prepared to put in the records. Ms. Peck is asking for
|\) 03 attorney fees. And we at Teast have -- there was a
B.)
A mediated settiement agreement to get to temporary
l\3 U1 orders. There were two attempts to set that aside here
VIRGINIA BUNTING, CSR
(512) 940-6597
in front of this Court. At a minimum, I think Ms. Peck
is -- the Court shou1d award $4,492 in those fees, but
she wou1d Tike a Targer proportion of the tota1 fees
that she's paid here.
we've agreed that the frequent fTier
mi1es -— that there were 360,000 frequent f1ier mi1es --
3,694 frequent fTier mi1es. Mr. Major Peck moved those
or used those or something, but he's agreed whatever is
remaining there, he has represented it's about ha1f,
:42 those wi11 go to Ms. Peck.
There is a Survivor Benefit Program that
she gets. And there's a 50 —- they're going to sp1it
the month1y fees 50/50.
There were two tax checks for 2011, 2012,
:42 and 2013. It has yet to be fiTed. Ms. Peck be1ieves
that tota1 comes to 1726. And that's disputed.
THE COURT: Okay. So far we have that
Ms. Peck wants the Court to find that she is disab1ed
and order a1imony for an indefinite period of time; is
:42 that correct?
MR. HINDERA: we11, I don't think the Court
can do it indefinite1y. The Court picks a time period,
but then we come back.
THE COURT: I know what I can do. I'm
:43 wondering what you're asking me to do.
VIRGINIA BUNTING, CSR
(512) 940-6597
67
_|.
sorry, Petitioner's Exhibit 28 admitted into evidence,
Your Honor.
MR. RIPPY: And again, is this one with an
affidavit or is this one without an affidavit?
02:59
OO'l-D-0Ol\)
MR. HINDERA: He opened the door. He asked
my c1ient in this stack of documents here. And that
opens the door, Your Honor.
MR. RIPPY: To the one she's hoiding or the
one --
02:59 _;
MR. HINDERA: Because he knows that
._x
_x
document says she has a disabi1ity.
_\
|\J
THE COURT: was that document, Counse1, not
_x Q)
fi1ed by business records affidavit?
.4 -P
MR. HINDERA: It was not. we did not get
02:59 ._\ (J1
that unti1 Tast week, Your Honor.
_\ 03
THE COURT: And it was not produced in
_x \l
discovery?
_x on MR. HINDERA: No, Your Honor.
..\
(D THE COURT: Okay.
02:59 I\.)
O MR. HINDERA: But that was in the stack
[0 —.|
that he referred to, Your Honor. He asked her about it.
l\) I\)
THE COURT: The objection to hearsay is
I\J (.0
sustained. And I beiieve that was No. 28. 28 is not
N -I3
admitted.
03:00 l\)
O‘!
Q. (By Mr. Hindera) Have you been seeing
VIRGINIA BUNTING, CSR
(512) 940-6597
68
C1audia -— a Iicensed psycho1ogica1 counse1or?
A. Yes.
Q. And what is her name?
A. Claudia Ghio.
03:00 Q. I'm now handing you now what has been marked as
K
Petitioner's Exhibit 2.
MR. HINDERA: And, Your Honor, there is a
business records affidavit attached to that.
0. (By Mr. Hindera) Are those the records of
03:00 CIaudia Ghio?
A. Yes.
Q. And I'm now handing you what has been marked as
Petitioner's Exhibit 29. Are those the records -- the
Iatest records we got the other day from C1audia Ghio?
03:01 A. Yes.
MR. HINDERA: Your Honor, we ask that
Petitioner's 2 and Petitioner's 29 be admitted into
evidence.
MR. RIPPY: And I think, Judge,
03:01 Petitioner's 2 has a business records affidavit, which
may or may not have been fi1ed, so we don't object to 2.
29 is apparent1y some recent addendum
without one. we do object to 29.
THE COURT: Do you have any response to the
03:01 objection, Mr. Hindera?
VIRGINIA BUNTING, CSR
(512) 940-6597
73
._x
minimum -- to generate sufficient income now to meet
your minimum reasonable needs?
A. I mean, I have difficu1ty doing dai1y
activities, getting my dai1y activities done in the day.
03:07 I need assistance with that.
-¥Of.Om\lO>O'l-l>OOl\J
0. Now, have you created a -- how much do you
think you need to Tive on each month?
MR. RIPPY: Judge, if we're going to read
from the proposed disposition, we'11 stipulate what his
03:08 proposed disposition says, not to its truth.
_|_|
THE COURT: Mr. Hindera, I wi11 take notice
.4
N)
of the contents. She thinks -- her representation to
_\
(.0 the Court based on her proposed decision is that she
_1 4-‘-
a11ows that she needs $3,000 a month from her husband.
03:08 _\ U1
MR. HINDERA: we11, no, that's not
_\ C7 entire1y -- no.
_\ Kl
THE COURT: Then you better go ahead and
...\
CO ask questions.
A (O 0. (By Mr. Hindera) Do you need $3,000 tota1 to
03:08‘ l\)
O 1ive on? Is that what you're asking this Court to make
l\) _x
sure that you have access to $3,000?
|\J l\)
A. My budget is for more than that, but I --
N OJ THE COURT: Certainiy you may examine the
|\> A witness, Counse1. I thought if there's a shortcut,
03:09 |\§ O1 we'11 take it. If there's not, we11, then it's a
VIRGINIA BUNTING, CSR
(512) 940-6597
13
._x
were 10 issues. And now we can just check off the ones
that are settied: But Mr. Hihdera is right, the big one
that is not sett1ed is after she gets 50 percent of his
retirement, which we concede she'11 get, then how much
01:46 in addition to that and for what period of time does he
O(OC0\lO)O'l-hCaJl\)
pay it. And I can't remember if our offer was 2,500 or
2,000, but it wi11 be on here.
THE COURT: It sounds Tike for a period of
seven years she wants a11 of the retirement, in essence.
01:47 _\
MR. HINDERA: No.
_x ._L
MR. RIPPY: The tota1 retirement wou1d --
...\
I\3 THE COURT: 3,000.
._\
OJ MR. RIPPY: The judge is pretty c1ose.
_\
-l> THE COURT: So it's 3,000 in his
01:47 _\ 01 retirement. She wants the Court to find that she's
_.x
O‘)
disab1ed. I've heard no evidence on that, but I wi11
_x ‘I
because I can see the big stack of documents. And what
_\
W she's wanting is for seven years to receive $3,000 a
_\
(D month. Is that correct?
01:47 N)
O MR. HINDERA: Yes. Major Peck --
N _;
THE COURT: which, in essence, is his
N) l\'> retirement?
l\) (.0 MR. HINDERA: we11, Major Peck has a
N -5 master's degree. He's going to retire, but he's on1y in
01:47 N O‘!
his ear1y 40s. I think he's 44 maybe and he's going to
VIRGINIA BUNTING, CSR
(512) 940-6597
14
continue to work. I know this sounds draconian. The
Tast offer on the tab1e was 2,500. My c1ient wou1d Tike
3,000. And she's Tooked at her budget and I agree, Your
Honor.
:47 THE COURT: Does she have a job,
O(O®\lO3(J‘I-#0->N)
Mr. Hindera?
MR.—HINDERA: She cannot work, Your Honor.
First of a11, she physica1Ty cannot work. And then she
has some memory issues because of some e1ectroshock
:47 therapy that she had, in addition to some other things
going on.
12 If you wou1d Tike for us to ta1k about
13 that, I wou1d be g1ad to with Mr. Rippy out in the
14 ha11way.
:48 15 MR. RIPPY: we11, we don't concede to that.
16 But in the midd1e of our proposed disposition, as
17 promised, we Taid out ten issues. I think a1T but
18 three -- actua11y, now we brought attorney fees and back
19 taxes. A11 but five are sett1ed. And our offer is
:48 20 bring her up to 2,000 a month, which wou1d, the Court is
21 right, be, more or Tess, two-thirds, not quite, of his
22 retirement. That's right. And our offer is
seven years, which is pretty generous, since
that's the
23
24 maximum, but dating back two years because we've waited
:48 25 two years. This is a 2012 case. we've waited to get a
VIRGINIA BUNTING, CSR
(512) 940-6597
81
.1
account.
MR. HINDERA: Your Honor, we'11 object as
to the sidebar.
MR. RIPPY: we11, Tet me ask her.
03:25 Q. (By Mr. Rippy) Is your memory good on this
point?
OCO®\lO>U'l-BOJIV
A. It's oniy good because I spoke with -- because
of the IRA, I spoke with our financiai --
Q. That's a yes or no question. Is your memory
03:26 _\
good on the point of the 1995 money transfer? Is it
_\
._x
good or not?
_\ l\)
A. Currentiy, yes.
._\
(D 0. And at that time, you transferred money when
_;
-J3
y'a11 were in New York from your NCNB account, right?
03:26 _x 01
A Yeah, our joint account.
..x
CD Q And the amount was $66,000, wasn't it?
.4. ‘I
A That, I don't reca11 the exact amount.
_x
CD Q. So you don't know what the amount was?
_\
(.0 A we11, I wrote it down, but I don't reca11 it.
03:26 NO Q we11, the 1aw of Texas a11ows me to ask for
N _\
your best estimate. So what is your best estimate of
l\) l\)
the amount that was transferred into your account?
NJ 00
A. That cou1d be correct about that.
IV -5 Q. And there's no other source that $66,000 wou1d
03:26 N 01 have come from except for the trust that was estabiished
VIRGINIA BUNTING, CSR
(512) 940-6597
82
.3
on the death of Wayne Peck's father; isn't that right?
A. We11, before we went to the Midd1e East, we
both so1d both of our cars. And whi1e we were in the
Midd1e East, we hoth worked and didn't have to pay
03:26 taxes. And there was -- we had money in a savings
O(OG)\lO‘.vU'I-l>¢A>|\)
account.
0. So, yes or no, did the money come from se11ing
your cars?
A. Not just the cars, no.
03:27 ._L
Q. Yes or no, did the money come from just money
_\ _\
you had been saving?
_x
N A. It was a combination—of those things.
_\ (.0
Q. Yes or no, did Wayne trust -- Wayne Peck have a
_x
-l>
trust estab1ished for him up on the death of his dad in
03:27 _\ (II
the ear1y '90s?
.4
O’)
A. No.
_\ NI
Q. Yes or no, did Wayne Peck's trust dissoive in
.1 GD
1995 at the time of this transfer?
_\
(O A. No.
03:27 |\3
O Q. Now, 1et me ask you this: You say you have a
|\) ._L
1itt1e troub1e conducting your dai1y activities; is that
l\)
I0 right?
l\) O.)
A. Yes.
l\>
-§ Q. Your daily activities inciude motorcyc1e
03:27 I\) U!
riding?
VIRGINIA BUNTING, CSR
(512) 940-6597
83
_x
You have a picture of me on a motorcyc1e.
sure do. What is the date of that picture?
PP?’
I
That was about --
Q. what's the date of the picture of you on the
03:28
OCOGKIOEU1-l>OOl\J
motorcyc1e?
A. I don't have the date. I can give you an
estimate.
MR. HINDERA: Your Honor, we're going to
object.
03:28 _:
A. No, I can exp1ain this.
_\ _\
THE COURT: Ho1d on, ma'am.
_x
l\)
MR. HINDERA: That's fine.
_\ Q7
THE COURT: Let Mr. Hindera object.
_\
-h MR. HINDERA: He's asking about a document
03:28 _x 01
that I've not seen and asking specifica11y a date of a
_x 03 document that I've not seen and it's not in evidence.
_n \l
MR. RIPPY: And the response is, the
_\ 00 question is, what's the date of the picture of you
_\
10 riding a motorcyc1e? we don't have to show a picture of
03:28 N)
O a motorcycTe. She admits there is one. I want to know
N _x
the date.
N l\J THE COURT: In regards to something that
N 00 wou1d be based on her persona1 know1edge, she may
N J3 testify to that. As to any pictures that were not
03126 IO 01 produced in discovery, your objection wi11 be sustained,
VIRGINIA BUNTING, CSR
(512) 940-6597
85
_\
in October of 2013?
A. For a short period of time on the back of a
motorcyc1e.
Q. who was on the front?
03:29 A A friend of mine.
O(OG>\lO)U‘l-b(AJI\J
Q who is that?
A. Mr. Gui1amo-Ramos, Jr.
0 And why wou1d you send a picture 1ike that to
your husband?
03:30 _\
A. That summer, we were actua11y under good terms.
._\ ._\
I had he1ped him with some depression issues he was
_\
[V having, and he was encouraging me to try to date. And I
_L O»)
was actua11y sending him a picture to show that --
.4 -I>
Q. You were out having fun dating, right?
03:30 _; 01
A. -- I had met someone.
_\ 03
Q. we11, the purpose of the picture was to show
_x ‘I
him you were out having fun dating, right?
_| on A. Yes, because he was encouraging that.
_x
(0 0. Okay. October of 2013, right?
03:30 NO A. Yes. But that ride was not very -- it wasn't
N _\
very good. I -- it was very short.
NN Q. Around the same time -- but you did testify you
|\) 00 have troub1e remaining seated, right? That was your
N -5 testimony just 10 minutes ago?
03:31 N 01 A. Yes.
VIRGINIA BUNTING, CSR
(512) 940-6597
19
_x
THE COURT: Have a seat.
l\) MR. HUBBARD: Thank you, Your Honor.
(.0 THE COURT: Now, where are we? And,
J3 Mr. Hindera, my -- I certain1y am not directing any of
:52 01 this at you. I'm trying to get your c1ient to where
0) she's aware of what the situation is here, and I don't
NI
be1ieve that she.has a firm grasp of where she is right
. W now.
«J Now, Mr. Rippy, if you wi11 c1arify for me.
01 :53 A O It sounds to me where we are at the present time is an
_x _x
a1imony issue. The house is 60/40 sp1it from my
...x l\) understanding. His retirement is 50/50. So we're
_\ (.0 fighting over a 500 amount.
..\
-5 MR. RIPPY: And we agree to sp1it the other
:53 .1
0'1
accounts 60/40 as we11 in her favor, except for one,
_x O) which is attached to our proposed disposition, which is
_x \l
his Morgan Stan1ey account, former1y the Smith Barney
_\
W account, which has a1ways been in both of their names,
_.x
© but which came from his father's inheritance, which is
:53 I0 0 undisputed.
l\) ..\
THE COURT: And he's agreeing to a
l\.) l\) five-year payout on a1imony. She disagrees because he
N (A)
wants credit for the two that he's a1ready paid. And
N -h she wants an additiona1 two based on the date the
:53 N) U‘! divorce is granted.
VIRGINIA BUNTING, CSR
(512) 940-6597
20
A Is that right, Mr. Hindera.
MR. HINDERA: He paid her spousa1 support
during the pendency of this.
THE COURT: I kaow, Mr. Hindera.
:54 MR. HINDERA: And I think that's a
O(Dm\lO5U'I-5>OJl\J
Tegitimate argument that Mr. Rippy is making. There's
actua11y -- the on1y account that is undisputed that is
separate property is this one that her parents have put
a11 of the money into themse1ves --
:54 A THE COURT: Any probTem with that?
A A MR. HINDERA: —- as a gift.
A N MR. RIPPY: That's in her name a1one. we
A (A)
concede that's her separate property.
A -5 THE COURT: That's resoTved.
:54 A
U‘!
MR. HINDERA: There are other accounts to
A C) which we've agreed to spTit those 60/40 except for the
A ‘I
Smith Barney account that Major Peck contends is his
A (X)
separate property.
A (O MR. RIPPY: That's a11 right.
:54 NO THE COURT: Okay. So the Smith Barney
NA account, what -— and what's in that account, Mr. Rippy?
l\) l\) MR. RIPPY: Approximate1y $40,000. He
l\) 0) inherited approximate1y $67,000. So he cou1d be making
M -h a separate property reimbursement c1aim of $27,000, but
:54 |\) O1 he's not. But he's certain1y -- even though both names
VIRGINIA BUNTING, CSR
(512) 940-6597
21
we concede are on that account, but they always have
been. And the only money that's ever gone in there was
from his inheritance, and they dipped into it during the
community and they spent over 20,000 of his inherited
dollars. And he could be asking for that. He's not,
:55
but what he is asking for is that that account be
OO'l-50310
confirmed as his separate property inheritance account.
I don't think anybody is going to contradict the fact
that 15 years ago his dad died and he inherited $67,000.
:55 _\ THE COURT: Just a minute. Let me catch up
_\ _\
to you.
.1
N Personalty is divided. Are there any,
_\ O0 Mr. Hindera, items of personalty that aren't in her
_\ -I3 possession that she wants that he has control over?
:55 _a 01 MR. HINDERA: Not that I'm aware of, Your
_x
Q Honor, but I'm sure Mr. Rippy and I will be able to work
_\ ‘I
that out.
.1
® THE COURT: I appreciate that. So what I'm
_\
(O going to basically at this point in time take as a
:55 l\)
O stipulated agreement is that what they have in their
l\) -3
possession, unless specified at the conclusion of
l\.)
N today's hearing, they keep.
l\) 0) MR. HINDERA: Yes, Your Honor. It's all on
N -|>
this list that I've handed you. They have agreed at
:56 l\3 O1 this point, whatever is on this list, she can have.
VIRGINIA BUNTING, CSR
(512) 940-6597
17
Q. (By Mr. Rippy) what's the amount of money that
'you spTit four ways there on the Tast page of the
certified copy of the inventory?
A. It says.--
THE COURT: Before we go there, was that
exhibit marked?
O\lO)U1-h0J|\)
MR. RIPPY: Yes, sir, Judge, that's
Respondent's 2.
THE COURT: 2. Thank you. Now you may
01:55 answer.
$338,891.19, which was sp1it four
A. It states
12 ways after funera1 costs and sett1ing any
debts -- the
13 smaT1 amount of debts within the famiTy
estate.
14 Q. (By Mr. Rippy) Did you receive one-fourth of
01:55 15 that rough1y $313,000 amount?
16 A. That was around 69,000. I said 67 yesterday.
17 I was mistaken. It was 69.
18 Q. Is that your one-quarter of the net estate?
19 A. Yes, sir.
01-:55 20 Q. Is that what went into the Smith Barney,
21 Morgan Stan1ey account that is attached to your Proposed
22 Disposition of Issues?
23 A. Yes, sir.
24 Q. Now, you aTso heard your wife, Nancy Peck,
01:56 25 testify that she's got menta1 issues that may prohibit
VIRGINIA BUNTING, CSR
(512) 940-6597
18
Did you hear
her from working or make that difficuit.
that testimony?
A. Yes, sir, I did.
Q. Have you -- we've heard about your testimony
:56 and the furniture, but I'm taiking about menta11y, have
Peck recentiy that
you had some experience with Nancy
OtDCD\lO‘:O1-h0)l\')
of menta1
wou1d indicate that she's got a great dea1
acuity or aiertness?
A. we've communicated off and on quite frequentiy
person. we
:56 during the past two years. we've met in
presence and yours
have sometimes -- a few times in your
phone,
12 as we11. And the -- in person, and text, and
13 yes, we have. I have.
was when?
14 0. The Iast time that you came to court
A. I think it was over a year
ago, Iast -- it was
:56 15
16 Iike 18 months ago, something Iike that.
as you
17 0. Now, you've heard that characterized
of a mediated
18 were trying to wriggie out of or get out
characterization,
19 sett1ement agreement? You heard that
:57 20 did you not?
21 A. Yes, sir, I did.
22 0. why were you in court a year ago?
23 A. The -- when we had the -- per the mediated
conc1usion
24 settiement agreement that we came to the
a number of
01 :57 25 during the first mediation, she was a11owed
VIRGINIA BUNTING, CSR
(512) 940-6597
24
._L
think it's 41.
THE COURT: A11 right. And what's in the
Smith Barney account that she's c1aiming to be her
separate property?
:58 MR. HINDERA: Somewhere around $40,000,
Ol\)
Your Honor.
THE COURT: Does she dispute that under the
inception of tit1e that that was from -- in that account
from his inheritance?
:58 _s
MR. HINDERA: Yes, Your Honor.
_x ._x
THE COURT: She won't stipu1ate to it?
_\ l\) MR. HINDERA: His father died in '91. The
._x 03 ear1iest that we've heard, the money went in in '95.
_\
-h 0bvious1y, we get the probate procedure, but it started
01 :58 _.x
U‘!
out at 100,000, and then it was 69, and now it's 63 or
_.\
O7 whatever it is. ‘we're not sure what went in there, and
_\ \l she's not trying to be obstreperous. She just doesn't
_.x
on agree, that she thinks there were community funds that
..\
(O went into that account.
:58 N)
O THE COURT: Okay. A11 of the other
K) _\
accounts, he's agreeing to divide 60/40. House
|\) l\) proceeds, he's agreeing to divide 60/40.
IV (.0 Does your c1ient stipu1ate to that
N -b division? I
:59 N) 01 MR. HINDERA: Yes, she does, Your Honor.
VIRGINIA BUNTING, CSR
(512) 940-6597
21
MR. RIPPY: His Teave and earning
There's severa1
statement, the Morgan Stan1ey account.
--
documents, but there's nothing that
THE COURT: Why don't you Tet
Mr. Hindera -- have Mr. Hindera
have a Took at it.
01:59
Mr. Hindera, have you seen it?
O(O®\lO?IU1-l>(A>I\)
MR. HINDERA: I have seen his proposed
disposition, Your Honor.
THE COURT: But not the attached exhibits?
01:59 MR. HINDERA: There were attachments to it,
but they were not -- we propounded
discovery to this
11
party. This party never answered
discovery. Now, the
12
to admit it if it
13 ru1es are rea1 c1ear. He doesn't get
14 wasn't produced during discovery.
MR. RIPPY: If it was requested. And
02:00 15
16 that's the purpose of motion to compe1, which was
a
never fi1ed. And, of course, I
wasn't on the case back
17
a discovery
18 then, so I don't_rea1Ty -- we may have had
19 hearing, for a11 I The point being, we have no
know.
So you
02:00 20 evidence that anything Tike this was requested.
show
21 can't just say it wasn't produced. You have to
22 there's a request. That's why we have motions to
23 compe1.
MR. HINDERA: And I have -- in fact, our
24
--
02:00 25 discovery request
VIRGINIA BUMTING, CSR
(512) 940-6597
22
MR. RIPPY: That's why we have a motion to
so we don't
compe1 at a separate hearing from the tria1
do this.
think we can short-circuit this,
Judge, I
I'm pretty
02:00 though, 815 of the 1oca1 ru1es, which
wrote
fami1iar with since I was on the committee that
These are a
them, says exact1y what the Court said.
but they're
tria1 aid. They can be used as evidence,
not marked as evidence, nor are they
fiTed with the
02:01 District C1erk.
we11, except, Mr. Rippy, on
THE COURT:
that are -- that
that one, it's incTuding some documents
actua11y
are not a proposed disposition. They're
and admitted.
exhibits that need to be separateTy marked
02:01 So wi11 ask that you take the
I
documents the supporting documents off of the
--
regard.
exhibit, and you may question him in that
Mr. Hindera's objection is sustained.
MR. RIPPY: Yes, sir, Judge.
02:01
why don't you go ahead and
THE COURT:
witness,
come -- I wiT1 a1Tow you to approach the
Mr. Rippy, remove those attachments,
and you may then
resume your examination of the witness.
MR. RIPPY: Sure.
02:01 THE COURT: Now, show the exhibit to
VIRGINIA BUNTING, CSR
(512) 940-6597
23
Mr. Hindera so Mr. Hindera knows.
MR. RIPPY: And, dudge, we did exchange
these.
MR. HINDERA: we did.
02:02
The attachments, Mr. Hindera,
THE COURT:
sustained. The
have been removed. Your objection is
It's just
proposed disposition now has no attachments.
the form promuigated by the 1oca1 ru1es.
THE WITNESS: Your Honor, can I go grab my
02:02 g1asses, if that's okay?
THE COURT: You certain1y can go get your
giasses.
Q. (By Mr. Rippy) A11 right. So returning to the
in front of
proposed support decision, I think which is
a11 of us now, Page 1, nothing too
informative there.
02:02
Page 2, is that your gross wages as of your
Tast LES, 8304 per month?
A. Yes, sir.
6065.98
Q. Does that make on Page 4 your net wages
02:02 per month?
A. Yes, sir.
Given the expenses on Pages 4, 5, and 6, are
0.
you about $1,500 a month negative?
A. That's correct, sir.
the
02:03 Q. How have you been footing the bi11 for
VIRGINIA BUNTING, CSR
(512) 940-6597
28
A divorced, which they -- a divorce which they both
obvious1y sore1y need. And I'm going to ho1d your feet
to the fire.
It appears to me, Counse1, that they are
02:03
OLO®\lO>U'l-[>0-3N)
stipu1ating to a1imony beyond the three years, up to
five years. It's now a question do I go five or do I go
seven, correct?
MR. HINDERA: And, Your Honor, we're fine
with five because of the period we're asking. And,
02:03 A actua11y, I wou1d be shocked if there isn't a finding of
A A disabi1ity, but whether it's five or whether it's three
A |\) or whether it's seven, she's going to have to come back
A (.0 and prove that from time to time. So I'm fine with the
A -F five years.
02:03 A U1 THE COURT: I think what you might want to
A 03 do, you may want to put your information on whether or
A \l
not she's tru1y disab1ed.
A 00 What's your position on this, Mr. Rippy?
A (O MR. RIPPY: we11, Judge, I'm g1ad you
02:04 N)
O asked, because my opinion is it doesn't matter. You
l\) A know, we've stipu1ated she's either going to get five or
l\) l\J seven years, that's more than three, which is certain1y
|\) O.) what the Iaw in Texas was for a Tong time. So who cares
|\) -l> if she's disab1ed. We're going beyond -- you know,
02: 04 IO
U‘!
we're not stipu1ating, and even Mr. Hindera has not
VIRGINIA BUNTING, CSR
(512) 940-6597
29
_\
asked for some kind of Tifetime disabi1ity. So who
cares if she's disab1ed. We don't need to find whether
she's disab1ed or not. we've stipu1ated five years or
seven.
02:04 OtO®\l®U1-hOJI\')
THE COURT: I be1ieve that the code has
extended to three now.
MR. RIPPY: It has right around the time
this was fi1ed, out we concede because 20- to 30-year
marriages without disabi1ity now are e1igib1e for up to
02:04 _\
seven years. So we concede we'11 pay seven years, we
....\.
_|.
just want credit for the Tast two years. And so it
_\ l\) doesn't matter if she's disab1ed. The Court doesn't
_.x
(.0 need to hear any of the evidence on her disabi1ity.
_\
-l> It's either five or seven years.
02:04 _\ U1 MR. HINDERA: Then we can't stipu1ate to
.4
O’)
that.
A \l THE COURT: No, you can't.
_\
m MR. HINDERA: She qua1ifies under 8.054.
...x
(O THE COURT: Ho1d on just a minute, Counsei.
02:05 NO Let me catch up to you here. I want to review it again.
|\) _\
8.054?
l\) l\) MR. HINDERA: Yes. It's on Page 98,
N) 0.)
Your Honor.
l\) -h THE COURT: what's the duration of this
02:07 l\) 01 marriage again? 24 years?
VIRGINIA BUNTING, CSR
(512) 940-6597
30
_A MR. RIPPY: I think 25 now, Judge. Yes,
sir.
MR. HINDERA: And, Judge, Ms. Peck did a11
of the things that an officer's wife is supposed to do.
02:05 There's a certain amount of Tabor and input that goes
into it to p1ay the ro1e that Major Peck needed her to
O<.O®\lO30‘I-b0Ol\3
p1ay. She ought to receive the benefits for
continuation of the marriage.
THE COURT: A11 right. Mr. Hindera, I
02:08 interrupted you and you were very gracious about that,
and I want to graciously not interrupt you again and Tet
you give me your fu11 opening statement.
Thank you for accommodating the Court. You
may proceed.
02:08 MR. HINDERA: I apo1ogize, Your Honor. I
don't know that I need much of an opening statement.
This is a 25-year marriage. They've had one chi1d, who
is now 22. They are where they are, and we have
mediated this twice. This began when Mr. Peck -- when
Major Peck wanted out of the marriage. And we have
--
02:09
as Mr. Rippy has noted to the4Court, we pro1onged that
for two years so that now Ms. Peck qua1ifies for the
medical care that she needs and is going to use and does
use. This began because Mr. Peck said, "Give me
02:09 everything or I'11 divorce you. You won't get your
VIRGINIA BUNTING, CSR
(512) 940-6597
31
_I
hea1thcare." And then that turned into a move—out for
two weeks and give me a vacation. And at that point,
when she comp1ied with that vacation to give him some
breathing space, he changed the iocks on the doors and
02:09 O¢O®\lO§0'l-l>(.0|\)
she did not even get back in the house to get her
underwear for another two months.
we reached a sett1ement agreement. we then
came back for two more hearings. we've kind of brought
this case forward as we go a1ong. The fact is she did
02:10 ..\
what she was supposed to do in the marriage, and she
_\ _\
ought to enjoy the benefits of the 25 years that she
_\ N)
invested here.
_\ 0) Now, it's not c1ear -- it's a1most
_;
A impossibie to try to fathom what the issue is with
02:10 _x (.71
spousa1 support. But, essentia11y, what we're asking
_\ O3 for is either $700, which wou1d bring her up to $2,500
_\ ‘I
per month, because she's sti11 going to have -- even
_x oo with the TRICARE, she's sti11 going to have considerab1e
_x
(0 hea1th expenses.
02:10 N1
0 I think the Court wi11 see that she just
N ._\
simp1y cannot work. There's just no way. we've had
l\) l\)
troub1e having her assist us to prepare this case.
N 0) So what we're asking for is the spousa1
N -5 maintenance in an amount the Court fee1s fair. we want
02:11 l\> 01
a finding that she qua1ifies for that under
VIRGINIA BUNTING, CSR
(512) 940-6597
32
_\
8.054(a)(2)(A) in the Code and then 8.054(b). And we
wou1d 1ike the Court to set some periodic hearings to
see if she's sti11 disab1ed, but she's 49 years oid and
she's not going to get any better.
02:11 O(O®\l®(J1-h(AJl\3
It has not been -- we have not been back in
here nicke1ing-and—diming this thing. I've tried to
just kind of move it a1ong and push it a1ong to a fina1
fruition.
I don't want to get into the numerous times
02:11 _\
that Major Peck broke his agreement, because this was
.5 _\
his agreement. This wasn't the Court's. This was the
_\ |\) agreement he sat down and made himse1f. And the minor
.1 (A)
transaction —- the things of moving this around and
_.x
-R moving the mi1es and vio1ating that restraining order
02:11 _| U1 that was attached to the mediated settiement agreement,
_.x
O) but it's continued throughout and Ms. Peck has to1erated
_\
V it.
_\ on Now, the Iatest episode is just what
A (O happened here within the Iast week where he's now
02:12 l\.)
O engaged, he's now on Facebook, and she's got to dea1
l\) ..x
with a11 of that. what we want you to do is order the
l\) l\.) spousai maintenance, make the»finding of disabiiity. I
M Q) don't know how they're going to prove the community --
l\) -J3 the separate property on their -— on their —- his c1aim
02:12 l\> O1
for this IRA account, this Smith Barney or Morgan
VIRGINIA BUNTING, CSR
(512) 940-6597
33
_x
Stan1ey or whatever it is at this point, but we've --
certain1y that's their burden and we're ready to put on
our case.
THE COURT: A11 right. Mr. Rippy.
02:12 O(.0N>
in Court's fi1e. The ones that have been on fiie more
than 14 days, we don't object to. Have a 100k at them.
we don't think they come c1ose -- we11, actua11y, we
02:15 _x
know because there's not that many pages of them. They
_\ _\
don't say she can't work or she's disab1ed or can't meet
_\
N her minimum reasonab1e needs, nothing 1ike that.
_\ O0 So with that, 1et's start ca11ing
...\
-h witnesses, because as far as I can te11, the on1y rea1
02:15 ._x
01 issues are how Iong do we pay some amount of money over
_\
O‘)
and above the ha1f of the retirement that she gets.
_n ‘I Thanks, Judge.
_; OJ THE COURT: Counsel, I do need to see,
.3
G since he's stipuiated to those medica1 records, I wou1d
02:15 NO Iike the 20 pages that have a business records affidavit
N .4 that's been on fi1e for the requisite period of time so
N)
N that the Court may review them.
l\) O0 MR. HINDERA: we11, there's more than 20
N -I3
pages.
02:16 I\) O1 MR. RIPPY: And they're in the Court's
VIRGINIA BUNTING, CSR
(512) 940-6597
36
_\
fi1e.
MR. HINDERA: we put the business records
in there. we didn't put these into the C1erk's fi1e.
THE COURT: Mr. Hindera, you don't have to
02:16 O©®\lO3U'l-h<.0l\)
argue with me. I'm just making a statement. I want to
see the records that have been proper1y authenticated
that he Taid the objection to. That's a11. Thank you.
MR. HINDERA: we11, I've marked there where
the Mayo C1inic says she's disab1ed. It's in that
02:16 _L
high1ighted portion, Your Honor.
_\ _x
MR. RIPPY: And the on1y question I have is
..: l\J
are we Tooking for something fi1ed attached to a
_\ 0)
business records affidavit more than 14 days ago?
_u.
-h MR. HINDERA: I was assured by my staff
02:16 _\ O1
that these were fi1ed Tast summer.
_\ O) THE COURT: we11, before I start Iooking at
..\
N things, I need to make sure that they are proper1y
_\
W authenticated, because we wi11 have to break at about
_:
{O 3:45, and I wi11 make you come back tomorrow if we're
02:16 NO not finished by then.
MR. HINDERA: Okay.
l\)l\)
think there's
|\)_x
MR. RIPPY: we1I, I a fair1y
IO (.0 easy so1ution, right? I mean, if they've been on fi1e
N) J?-
more than 14 days, they're in the Judge's fi1e. I mean,
02:17 I\) O1
you don't have to rout around for them, Mr. Hindera.
VIRGINIA BUNTING, CSR
(512) 940-6597
37
The judge has them. And there are, I'11 stipu1ate, a
bunch of records and they're o1d. They're -- a year ago
they were fi1ed. Okay. The Court can take judicia1
\lG'>0)l\J
nothing Iike that. So the Court can take judicia1
notice of its fi1e. That's the idea of Ru1e 902.
THE COURT: Ca11 your first witness,
02:19 _.x
Mr. Rippy. Thank you. Let's proceed.
_.\ _\
MR. HINDERA: We11, I'm the Petitioner.
._\
l\>
THE COURT: we11, thank you. Then ca11
_\ O0
your first witness.
_\
-k MR. HINDERA: Thank you, Your Honor. I
02:19 15 wi11 ca11 Nancy Peck, Your Honor.
16 THE COURT: Mr. Hindera, 1et's approach the
17 bench, both Iawyers.
18 (Beginning of bench conference)
19 THE COURT: Be carefu1 with me.
20 MR. HINDERA: I'm not trying to disrespect
21 the Court.
22 THE COURT: You just did. Now, I'm just
23 going to warn you because I'm treating you with respect,
24 I expect that to be reciprocated.
25 MR. HINDERA: And I tru1y apo1ogize for any
VIRGINIA BUNTING, CSR
(512) 940-6597
39
_x
reason. I thought I was --
THE COURT: Apoiogy accepted.
MR. HINDERA: -- being respectfui. I do
respect this Court. I was simp1y saying I understand
OLO®\lO')U'l-l>(.0l\J
the stakes here, nobody Tikes these cases. I agree with
that.
THE COURT: A11 right, as Tong as we
understand each other.
(End of bench conference)
_\
THE COURT: A11 right. Mr. Hindera, you
_| —L
may proceed.
A l\J NANCY MARIE PECK,
_\ CA!
having been first duly sworn, testified as fo11ows:
_\
-J3
DIRECT EXAMINATION
02:20 _x
0'1
BY MR. HINDERA:
_; O) Q. Ma'am, wou1d you state your name for the
_\ \l
record, p1ease.
_.x
® A. Nancy Peck.
._\ (O Q And you are the Petitioner here?
02:20 MO A. Yes.
N) _\
Q And you are current1y married to Major Wayne
l\) l\)
Peck?
|\) (A) A. Yes.
l\) -l>
Q. And when were you married?
02:20 N U‘!
A. June 24th.
VIRGINIA BUNTING, CSR
(512) 940-6597
40
—\
Q. when did you cease --
A. 1989.
Q. And when did you cease to 1ive together as
husband and wife?
02:21 Did you cease to 1ive together as husband
OOJl\)
and wife on or about December 18th, 2011?
A. Yes.
Q. And are you current1y pregnant?
A. No.
02:21 _\
Q. Are there any chi1dren that are under the age
_\ _x
of 18 born of the marriage?
_\
I0 A. No.
_x Q) 0. Has the marriage become insupportabie because
_\
-B of discord or -- conf1ict of personaiity or discord that
02:21 _\ U1 renders the ends of the marriage re1ationship
_\ G) meaning1ess?
.1 *1
A. Yes.
_\ O0 Q. Is there any reasonab1e expectation of
_\
‘LO reconci1iation?
02:21 NO A. No.
IND ..x
Q. And are you asking the Court to make a
l\J l\.) determination of the issues that we put in front of the
l\) DJ Court here, these iimited issues?
MA A. Yes.
02:21 l\) O‘! 0. Okay. And are you asking for a name change?
VIRGINIA BUNTING, CSR
(512) 940-6597
41
A. No.
Q. Okay. Now, you sat and Tistened to my
representation to the Court as to how this divorce
began, correct?
02:22 A. Uh-huh, yes.
Q. were there any inaccuracies in what I to1d the
Court in how this divorce began?
A. No.
0. Okay. Now, are you ab1e to work?
02:22 A. No, I'm not.
0. Okay. wou1d you p1ease --
MR. HINDERA: Your Honor, may we approach
brief1y?
THE COURT: Certain1y.
02: 22 THE REPORTER: Do y'a11 want this on the
record?
THE COURT: Yes;
(Beginning of bench conference)
MR. HINDERA: Your Honor, I wasn't c1ear as
02:22 to what I ri1ed up the Court. I tru1y am --
THE COURT: we're fine. Let's move on.
MR. HINDERA: Can I start to put in my
records?
THE COURT: Abso1ute1y.
02:22 (End of bench conference)
VIRGINIA BUNTING, CSR
(512) 940-6597
42
—\
Q. (By Mr. Hindera) Now, ma'am, the biggest issue
that you have hea1th-wise, is it the Eh1ers-Dan1os
syndrome that you have?
A. Yes. It's the symptoms reiated to that.
02:22
OCO®\lO3U'l-l>0JI\J
Q. And when did you first notice those symptoms?
A. They've been going on for a very 1ong time. I
mean, it's a genetic, progressive condition. And it
wasn't diagnosed unti1 not Iast summer, but September,
October before that.
02:23 _x
0. Okay. Did you visit the Mayo Ciinic?
_\ .._\
A. Yeah, I was sent to the Mayo C1inic.
_\ |\)
Q. when was that?
_\ <20
A. In September, October of not this Iast year,
_\
h the year before.
02:23 _\ U1
0. Okay. And was there a diagnosis made there?
.3 O)
MR. RIPPY: we11, Judge, now I'm going to
—l \I
object as to hearsay. I think she's about to testify as
_x
W to what some doctor to1d her. Obviousiy, her statements
_|
(D in seeking medical attention wou1d not be hearsay. But
02:23 l\)
O the doctor's diagnosis back to her wou1d be. And I
N _\
don't think the Mayo C1inic records, I think they're
l\)
N recent enough, they're not in the Court's fi1e.
IV 00 THE COURT: Mr. Hindera, your position on
IV A that objection?
02:24 l\)
O‘!
MR. RIPPY: Objection; hearsay.
VIRGINIA BUNTING, CSR
(512) 940-6597
43
...\
MR.'HINDERA: Your Honor, I think this
witness qua1ifies under 702 even if she is an expert,
has a master's in nursing, she certain1y can te11 the
Court what her opinion is and what data she used to
02:24 reach that opinion.
O(OQJ\lO)O1-hC\Jl\)
THE COURT: Objection to hearsay is
sustained.
Q. (By Mr. Hindera) Ma'am, did you -- what other
hea1th issues do you have?
02:24 _\
A. My symptoms?
_\ _\
Piease te11 this Court why you are disab1ed and
Q.
_\
N unab1e to work.
_\ O0 A. I have troub1e
_\
-B
THE COURT: You need to speak into the
02:24 _\ O1
mike.
_\ G)
A. I have troub1e tracking my thoughts, so I
._x \l
prepared this statement to read. Is that okay, Your
_\
(D Honor? But it exp1ains why I'm unab1e to work in a
_\
(0 concise manner.
02:25 R) O Q. (By Mr. Hindera) Okay.
N ._x
THE COURT: Ho1d on just a moment.
N) N)
There's a document that she's reading from.
IV 60 THE WITNESS: That I wrote.
l\) -l>
THE COURT: Ho1d on just a moment.
02:25 N) 01
MR. RIPPY: which I haven't seen. And so
VIRGINIA BUNTING, CSR
(512) 940-6597
44
...x
the objection wou1d be narrative answer maybe, but I
suppose we'T1 Tet her start without objecting.
THE WITNESS: I mean, I can try to do it on
my own --
02:25 O«J®\lO5U'I-l>(a>l\>
THE COURT: Ma'am, at this point in --
THE WITNESS: -- but I might not get it
a11 --
THE COURT: Ma'am, at this point in time, I
just want you responding to questions but not offering
02:25 _\
information that is not responsive to a question.
_\ _x
THE WITNESS: I'm sorry, Your Honor.
_\
I\J
THE COURT: Mr. Hindera, if you would Tike
_\ (.0
to do this in question and answer, I be1ieve that wou1d
_\
-F be the more appropriate mechanism.
02:26 _x 01
MR. HINDERA: Thank you, Your Honor.
_n O?
Q. (By Mr. Hindera) Ma'am, do you have some
_\ ‘I
hypermobi1ity probTems?
_x on A. Yes. I have a deficit -- a genetic deficit in
_\ «D
my connective -- co11agen in my connective tissue.
02:26 NO Q. And when did you first become aware of that
R) _x
condition?
NN A. They were -- it took them a few years to
I
‘
l\) Ca)
diagnose it.
l\) -F
Q. when did you first attempt to have it
02:26 M 01 diagnosed?
VIRGINIA BUNTING, CSR
(512) 940-6597
45
—.l
A A coup1e of years before the Mayo C1inic visit.
0 So approximateiy 2010?
A. Yeah, you have the records on that.
0 Okay. As we sit here today, is it your
02:26 understanding that you have been diagnosed with
O(A>I\>
MR. HINDERA: Okay. Your Honor, we wou1d
ask that Petitioner's 23 be admitted into evidence.
MR. RIPPY: And, Judge.
These are my psycho1ogica1 records, okay, my
A.
psychiatrist.
02:30 _\
MR. RIPPY: And I think if these are the
_\ _\
records think they are, which are sent to the
I
_\ l\)
Mayo C1inic, I think that visit is too recent to be in
_\ 03 the business records affidavit that's in the Court's
._x
-B fi1e. So the obiection is hearsay because of improper
02:30 _| U1
authentication.
._| 07
MR. HINDERA:
Your Honor, that affidavit is
-—L
N]
attached right here, and it's February 28th of 2012,
_\
W short1y after this began.
_\
(O MR. RIPPY: Okay. No objection if that is
02:30 N)
O the affidavit and attached records that are in the
M _;
Court's fi1e, but it 1ooks a 1itt1e too thick to me.
l\J |\>
Okay. No question that is an affidavit.
l\) 0.7
The second ha1f of the ru1e is fi1ed with
N) -§
the Court 14 days in advance to tria1. I can't Iook at
02:31 l\.) 01
it and te11 if that's what is in the Court's file.
VIRGINIA BUNTING, CSR
(512) 940-6597
48
MR. HINDERA: That has 94 pages attached to
it, Your Honor.
THE COURT: Have you -- were a11 the
prerequisites for fi1ing a business records affidavit
02:31 14 days prior to tria1, Mr. Hindera?
MR. HINDERA: Yes.
THE COURT: A11 right. It's admitted.
And what's the number on that, Mr. Hindera?
MR. HINDERA: It's No. 23, Your Honor.
02:31 THE COURT: A11 right. 23 is admitted.
(Petitioner's Exhibit No. 23 admitted)
Q. (By Mr. Hindera) And what was the diagnosis --
what was it that you went into Scott & white to be
heiped with?
02:31 A. This is my psychiatrist. So it was for
anxiety, depression, and cognitive disorder.
Q. And was that before or after you were subjected
to the shock therapy?
A. This was in -- this was after. It was after.
02:32 Q. Okay. And do you have memory issues because of
the shock therapy?
A. We11, I had some memory issues prior to, and it
was exp1ained to me that they wou1d do one side of the
brain instead of both sides because of my memory issues
02:32 that I have.
VIRGINIA BUNTING, CSR
(512) 940-6597
49
_\
MR. RIPPY: I've got to object, Judge.
Hearsay answers. She's, again, saying what was
explained to her and told to her.
THE COURT: In regards to the objection to
02:32 hearsay, it is sustained.
OtO(X>\l®U'|-l>f.0l\)
Q. (By Mr. Hindera) Now, ma'am, if you are to
work as a registered nurse, do you have to have good
short-term memory?
A. Yes. My memory, as you can see, I have to go
02:33 ._\
by lists and notes, and I went through cognitive rehab
.5 _x
therapy with my psychiatrist -- with my psychologist.
_\ l\)
And it was not successful. I rely -- I tried to use a
_l 00 smartphone to keep track of appointments, lists, and
_\
-b things like that, but as to working as a nurse, there is
02:33 15 so much medical information that I would have -— really,
16 not just nursing, but other types of jobs, that I have
17 to keep lots of notes of lists and things to remember
18 things. And I even have trouble keeping track of all of
19 the notes. So to learn -- even to learn something new
02:33 20 is very difficult for me.
21 0. Now, what prescriptions are you currently on at
22 this point?
23 A. I take -- should I say what they are and what
24 they're for?
02:34 25 Q. Yes, please.
VIRGINIA BUNTING, CSR
(512) 940-6597
50
_\
A. Okay. I take Bysto1ic, 5 mi11igrams. That's
for high b1ood pressure and tachycardia, which is rapid
heart rate. I -- and I a1so tend to go 10w b1ood
pressure, too. My b1ood pressure is very unstab1e due
02:34 to co11agen deficit. But I'm a1so on Astepro, a nasa1
spray for a11ergies. Tessalon capsu1es for -- it's for
O(D(XD\lO>(J'I-BOJIU
a11ergies and when I have bad cough due to them.
Zovirax. These are just the simp1e ones, not the major
ones. Zovirax for cold sores. Proventi1 for asthma.
02:35 _x
And another, Veramyst for a11ergies, a nasa1 spray. And
..x _n
then I'm on a C1onazepam for anxiety.
._\
N Q. And, ma'am, I'm going to put this in. I'm
—l O»)
handing you now what's been marked as Exhibit No. 21 --
_x
A Petitioner's 21. Do you recognize those records?
02:35 ..x U1
A. Yes.
_\
O’)
Q. what are those?
_\ ‘I
A. It's my neuropsycho1ogica1 test.
..x
oo
MR. HINDERA: Your Honor, we wou1d ask that
_\
(O Petitioner's 21 be admitted.
02:35 l\)
O MR. RIPPY: Again, Judge, that's an
N _\
affidavit that -- we'11 stipulate it's a va1id
N l\)
affidavit. It's just not fi1e marked. So I can't te11
I\) (.0
by Iooking, is that the one that's in the Court's fi1e
M -h and are those records attached? If it's represented to
02:36 N) O‘!
me it is, then we have no objection.
VIRGINIA BUNTING, CSR
(512) 940-6597
51
—|
MR. HINDERA: It is, Your Honor.
THE COURT: Based on your representation,
your 21, Mr. Hindera --
MR. HINDERA: Yes, Your Honor.
02:36
O(OOO\lO3U'l-l>Os>l\>
THE COURT: -- is admitted.
(Petitioner's Exhibit No. 21 admitted)
0. (By Mr. Hindera) And, ma'am --
THE COURT: Mr. Hindera, you broke into her
answer, though. vShe's at C1onazepam and did not finish
02:36 _\
her answer. wou1d Tike for her to finish a11 of the
I
_L _x
medicines that she's on.
_\ l\)
A. Okay, Your Honor. Lexapro, 5 miT1igrams. And
_\ (A)
I take that every other day because if I take it every
_x
-B
day, then I have some side effects from that. And
02:36 _\ U1 that's for depression. Now, I take Addera11,
_\ O) 10 miT1igrams one or two a day. And I don't have ADHD.
_.s ‘I
I take the Addera11 to he1p me focus -— focus my
_.\
G)
thoughts. I was never on or diagnosed with Attention
_\
Q Deficit Disorder. I take Ed1uar, which is a sub1ingua1
02:37 l\)
O meTting Zo1pidem tab1et, and Lunesta, 3 mi11igrams
l\.) _\
tab1et, both at bedtime for s1eep. I have a s1eep
N l\)
disorder. I take for -- and a1so those are -— because
N 00 of my pain, I have troub1e s1eeping. I take
l\) J?-
Hydrocodone, Acetaminophen, which is a1so ca11ed Norco,
02:37 [0
0'1
10.5 mi'l'|igrams.
VIRGINIA BUNTING, CSR
(512) 940-6597
52
_\
Do you want me to te1T you dosages and
stuff, Your Honor, or just the pi1Ts.
THE COURT: Just the pi11s.
A. Okay. I take one of_those every six hours, a
02:38 OCO®\lO‘.IO1--l>-(.\Jl\)
max, four a day. And I try to Timit those to as few as
possib1e. Tizanidine HCL, is.aTso Zanaf1ex, I take
that -- it's a musc1e reiaxant -- at bedtime for
rest1ess Ieg syndrome and for pain and musc1e spasms. I
take Exa1go, which is my main pain pi11, XR, which is
02:38 _x
a1so ca1Ted hydromorphine or morephone. I'm a11ergic to
_\ _x
morphine, so I can't take that. And then I take 8
_\ l\J
mi11igrams. I a1ways said I wasn't going to say that.
_\ O0 Excuse me.
_\ 4:-
I have an Epinephrine pen for a11ergic
02:38 _\ U1 reactions that I have just in case. I take
_\ O? I-p-r-a-t-r-o-p—i-u-m Bromide nasa1 spray. I'm on
_x \l
Singu1air. I take Librax because I have a Tot of
..; oo gastroentero1ogy GI issues. So I take Librax for
_\
(O diarrhea PRN. And I take Dexiiant PRN, and Levbid PRN,
02:39 l\)
O and Linzess, and they're a11 for either constipation,
[0 _x
diarrhea, pain in my abdomen. And that kind of goes
l\) l\)
with Eh1ers-Dan1os stuff. And I take C01 -- I can't
|\} 00 ever pronounce this one -- C-9-1-c-r—y, and that was
N -B prescribed by my rheumatologist for unexp1ained Tow
02:40 M U‘!
grade fevers that I've been having for many years. They
VIRGINIA BUNTING, CSR
(512) 940-6597
53
sti11 haven't figured out why I'm having that. I do
have a Tot of abnorma1 Tabs. And that was one of the
reasons that I was sent to the Mayo CTinic.
‘I030’!-l>OOl\>
And do you want to know the
02:40 over-the-counter?
THE COURT: No. Thank you.
I think she's comp1eted her answer.
Mr. Hindera, now, I be1ieve you had some questions on
your 21 you were examining her on before the Court.
02:40 MR. HINDERA: Yes. On 21, has that been
11 admitted, Your Honor?
12 THE COURT: Yes. 21 was admitted.
13 Q. (By Mr. Hindera) Okay. Now, was there, in
14 fact -- do you have some memory issues with respect
02:40 15 to -- that were diagnosed there at Scott & white?
16 A. This is -- I don't know if this is
17 Scott & white. It's Neuropsyche Services. I'm not sure
18 if it's Scott & white or not, but it's Dr. wiT1iam
19 Dai1ey, Ph.D.
02:41 20 Q. Okay. Did Dr. Dai1ey diagnose you with some
21 memory issues?
22 A. Yes, but --
23 Q. And is that what is ref1ected in the chart
24 there that you have a composite memory issue, be1ow
02:41 25 score?
VIRGINIA BUNTING, CSR
(512) 940-6597
54
_x
A. Yes, but I actua11y was tested by my
psycho1ogist, and those are in your records, too, that
were submitted ear1ier in C1audia Ghio's records..
Q. Yes.
02:41 A. And she did a more -- a different type of test,
-‘Ol\)
but it showed that my -- I have a composite memory
deficit.
MR. RIPPY: Judge, I'm going to object,
because I think now we're testifying about some record
02:41 that's not front of her.
THE WITNESS: (Inaudib1e.)
_\A
_\ l\7 THE COURT: Ho1d on just a moment.
_\ 03 MR. RIPPY: So nonresponsive, Judge.
_x
A THE COURT: You need not to ta1k unti1 I
02:42 _x 01
ru1e on the objection.
_x 03 Mr. Hindera, do you have any response to
_\ \l
objections?
_\ GD MR. HINDERA: No, Your Honor.
..\
CO THE COURT: Objection is sustained.
02:42 |\>
O 0. (By Mr. Hindera) Okay. were you diagnosed
l\> _x
with a composite memory deficit prob1em?
N) l\)
A. Yeah.
l\) OJ Q. And is that --
l\.)
A A. I'm Iooking at how they described it. Yes.
02:42 NJ 01 “This is an abnorma1 set of neuropsychoIogica1 test
VIRGINIA BUNTING, CSR
(512) 940-6597
55
_\
resu1ts because of very impaired performance across most
of the memory testing."
Q. Now, given that you are a registered nurse, you
can't give out medicines to be responsib1e for that, can
02:42 you?
A. No. wou1d be -- mean, did not renew my
O-GIN)
I I I
Ticense because I haven't worked as a registered nurse
in quite a whi1e, and I don't fee1 that confidently I
cou1d be ab1e to do that job because there is a Tot of
02:43 ..:
memory, especia11y verbai memory invo1ved with that.
A _.|
0. Okay. And did you see a Dr. Awiida Luciano at
_\ l\)
the Medica1 C1inic of North Texas?
_x (.0
A. I wouid have to Took at the name. Is she a
_x
-J>
rheumatoiogist? ‘Is that in -A
02:43 _.x
01 THE COURT: Ho1d on, ma'am.
_\
O‘:
MR. HINDERA: May I approach, Your Honor?
_\
\l THE COURT: Yes, sir.
.1 G)
Q. (By Mr. Hindera) I'm handing you now what has
_x
(O been marked as Petitioner's 18 [sic]. Do you recognize
02:43 NO those documents?
N) _x
A. She's the originai rheumatoiogist that I've
N IQ seen.
N 00 Q. So you recognize those documents? Yes?
l\) -13 A. -Yes.
02:44 l\) 01 MR. HINDERA: Your Honor, we would ask that
VIRGINIA BUNTING, CSR
(512) 940-6597
56
Petitioner's 18 [sic] be admitted into evidence.
MR. RIPPY: And again, Judge, it Tooks Tike
it has an attached affidavit and it's not fi1e marked,
but if it's represented to me that it's one of the ones
02:44 on fi1e with the Court more than 14 days ago, we have no
objection.
THE COURT: Is that the case, Mr. Hindera?
MR. HINDERA: It is, Your Honor.
THE COURT: Your No. 18 [sic] is admitted.
02:44 (Petitioner's Exhibit No. 20 admitted)
Q. (By Mr. Hindera) And, ma'am, when you saw
Dr. Luciano, was there a diagnosis of hypermobi1ity
probiems that are ref1ective of the Ehiers-Danios
syndrome?
02:44 A. Yes. She actua11y said that I had
Eh1ers-Dan1os syndrome. But when she did the records,
she diagnosed with the hypermobi1ity syndrome, which
sometimes they both kind of go hand in hand. But she
wou1dn't document the Eh1ers-Dan1os syndrome. The
02:45 geneticist at Mayo CTinic made that finai diagnosis, but
her diagnosis was the hypermobiiity syndrome and
fatigue.
Q. Now, did you see a Dr. Robert Bur1ingame at
some point?
02:45 A. He's the psychiatrist, right?
VIRGINIA BUNTING, CSR
(512) 940-6597
57
Q. Yes, ma'am.
A. Yes. Uh-huh. That was in Washington.
Q. At the time that you saw Dr. Burlingame in
2002, were you exhibiting symptoms of the Eh1ers-Dan1os
02:46 with respect to your memory?
A. Yes. I'm pretty sure I was at that time,
because I had a1ready tried changing positions -- job
positions.
MR. HINDERA: May I approach, Your Honor?
02:46 THE COURT: Yes, sir.
Q. (By Mr. Hindera) Ma'am, I'm now handing you
what has been marked as Respondent's Exhibit 20 [sic].
Do you recognize those?
A. Yes.
02:46 Q. what are those?
A. These are progress notes. And this is a form
that I fi11 out prior to seeing the doctor and then he
makes notes on them.
Q. Okay. And with respect to that, did
02:46 Dr. Bur1ingame make note of any memory issues that you
have?
A. Yes.
MR. HINDERA: I wou1d ask that Respondent's
'
[sic] 20 be -- 20 [sic], right --
02:47 MR. RIPPY: 20 [sic] it is, yes.
VIRGINIA BUNTING, CSR
(512) 940-6597
58
_\
MR. HINDERA: -- be admitted into evidence.
MR. RIPPY: And again, same objection,
which is no objection if it's actua11y -- if there's a
fi1e marked copy of that somewhere. It's not what the
02:47 witness is hoiding, but if it was fi1ed more than
O(DW\lO>O'I-h0JI\J
14 days ago, then we have no objection.
THE COURT: Is that the case, Counse1?
MR. HINDERA: That is, Your Honor.
THE COURT: Objection is overru1ed. And 20
02:47 ._x
[sic] is admitted.
_| _\
(Petitioner's Exhibit No. 22 admitted)
_\ N)
A. Am I answering a question?
.3 (.0
Q. (By Mr. Hindera) Has anyone ever ru1ed out
_\
-J>
Eh1ers-Dan1os syndrome to your know1edge?
02:47 _x U1
A. I've been diagnosed with it, yes. They've
_\ 0) ru1ed out other things and made a definitive diagnosis
_x \l
of Eh1ers-Dan1os syndrome.
_\
(D Q. And what does -- wou1d you p1ease te11 the
_x
(O Court what the Eh1ers-Dan1os syndrome does.
02:48 N0 A. we11, there's severa1 different types. And the
K7 _\
hypermobi1ity type, it's a progressive genetic syndrome
l\) |\J
in which I have a deficit in the co11agen in my
l\> Q)
connective tissue. So the only easy way to exp1ain it
I\) -P
is the stuff that wraps around your body causes the
02:48 M 01 structure of a connective tissue that surrounds the
VIRGINIA BUNTING, CSR
(512) 940-6597
59
_\
muscles, b1ood vesseis, nerve‘binding, nerve binding
some structures together and a11owing others to siide
smoothiy over each other. So your connective tissue is
everywhere. It's in your -- it's everywhere in your
02:49 body. And my connective tissue -- part of your
connective tissue has co11agen in it, and my coiiagen is
O<.OG7\lO>O1-hl\)
defective. And the coiiagen is what gives your
connective tissue e1asticity and strength.
MR. RIPPY: Okay. Judge, I'm going to
02:49 _\
object to a narrative answer and re1evance. If there's
_\ _x
no p1ace in these records -- I just want to see
_\
N something that says that she's permanent1y disab1ed and
_x 0) can't work. And I'11 take her on voir dire for a
_\
A Iimited purpose and ask her that if that wi11 shorten
02:49 _x O1 this.
_\ O?
A. Yes. That's --
...x
Kl
THE COURT: Ma'am, do not respond un1ess
_\
W it's a response to a direct question. Your objection on
_\
O reievance is, for the moment, sustained. I do beiieve
02:49 |\) C we need to focus on the disabiiity, if you wouid,
IV —L
counsei. Sustained.
l\)
M MR. HINDERA: Okay.
l\) (.0
0. (By Mr. Hindera) Ma'am, I'm now handing you
Nb what has been marked as Petitioner's Exhibit 6 [sic].
02:50 N) 01
Do you recognize those as the records of Austin Pain
VIRGINIA BUNTING, CSR
(512) 940-6597
60
Associates?
A. Yes.
MR. HINDERA: Your Honor, I wou1d ask that
No. 6 [sic] be admitted into evidence?
02:50 THE COURT: A11 right.
OLOC0\lO'>U'l-hO~Jl\)
MR._RIPPY: Okay. Judge, and here's my
same objection. There's an affidavit attached to that.
That's not in the Court's fi1e. That's way too big. So
now that's making me wonder about these previous1y
02:50 admitted exhibits.
11 MR. HINDERA: we didn't put the records
12 themse1ves, Your Honor, because we genera11y don't do
13 that.
14 THE COURT: Have these records been
02:50 15 produced?
16 MR. HINDERA: Yes. They have them a11.
17 They've been produced in e1ectronic form and were
18 avai1ab1e. They've a11 been scanned. These have
19 probab1y -- they're Bates stamped. They've a11 been
02:51 20 produced.
21 MR. RIPPY: But not fi1ed. You can't just
22 fi1e the affidavits. And now I'm thinking that every
23 one of these admitted affidavits, at Teast the attached
24 records weren't fi1ed. And that's on1y ha1f the ru1e.
02:51 25 That's not comp1iance with authentication and makes them
VIRGINIA BUNTING, CSR
»(512) 940-6597
61
_\
hearsay. So -- but in the interest of time, if I can
take her on voir dire for a Iimited purpose --
THE.COURT: I wi11 a11ow you to do so.
MR. RIPPY: -- I wi11 stipu1ate the
02:51 admissibility of that giant stack of records that aren't
O(OCO\lO>U'I-hO)l\)
in the Court's fi1e.
THE COURT: You go right ahead, Counsei. I
wi11 a11ow you to take her on Voir Dire.
VOIR DIRE EXAMINATION
02:51 _\
BY MR. RIPPY:
_x _\
0. Okay. Ma'am, to you know1edge, in any of these
...\
N records, inc1uding the ones that aren't admitted yet
A 00 that I'm going to withdraw my objection to, is there any
._x
A p1ace in there where it says you can't work, to your
02:52 _\ U1
knowiedge?
_;
O‘)
A. We11, I didn't app1y for disabi1ity.
_x \l
Q. That's a yes or no question, ma'am.
_\
W MR. RIPPY: I'm going to object as
_\
(O nonresponsive.
02:52 N)
O 0. (By Mr._Rippy) Yes or no? Any p1ace in there,
M _\
to you know1edge, that says you can't work?
I0 [0 A. I'm not sure.
|\J 00
Q Yes or no do you get Socia1 Security SSI?
N -P A. No.
02:52 N) U‘!
0 Yes or no, if you app1ied for it even?
VIRGINIA BUNTING, CSR
(512) 940-6597
62
..\
A. No.
Q.Yes or no, did you renew your master's in
registered nursing Iicense?
A. Registered nurse -- professiona1 registered
02:52 O
«nurse Iicense, and I did not renew it. It's -- I forget
what they caI1 it.
Q. That's a no, you didn't renew it. when did you
quit?
A. It's not quitting.
02:52 .5
Q. when did you quit renewing it? This year,
_\
—|.
right?
_\ |\)
A. No. No.
_\ (A)
Q. How many years have you not renewed it? Just
._x 4:-
one, right?
02:53 ._\ U1
A. I'm trying to remember when the date was,
_\
O because the paper --
_\ \l
MR. RIPPY: A11 right. Judge, I wi11 pass
_\
W the witness.
_\
(0
THE COURT: A11 right. Counse1.
02:53 NJ
O A. It might be a few years.
[O _\
THE COURT: Hold on.
M N) VOIR DIRE EXAMINATION
|\) (an)
BY MR. HINDERA:
N)
A Q. Ma'am, do any of these records say that you
02:53 l\) 01
have a disabi1ity?
VIRGINIA BUNTING, CSR
(512) 940-6597
63
_x
A. Yes.
Q. And, in fact, Petitioner's Exhibit 28 says
that, correct?
I've now handed you what's been marked as
02:53 Petitioner's Exhibit 28. Do you recognize that
document?
O(Dm\lO30'l-BOJIV
A. Yes.
Q. what is that document?
A. This is a record from the Mayo C1inic.
02:53 MR. HINDERA: Okay. I think Mr. Rippy has
withdrawn a11 of his objections, Your Honor, to a11 of
the stack there. we wou1d ask that --
THE COURT: Ho1d on just a moment. what is
the current situation on stipu1ating to the evidence?
02:54 MR. RIPPY: we11, Judge, we've withdrawn
our objection to that one, that one being -- is it 19?
what's the big, thick one right in front of the witness?
MR. HINDERA: That's 3.
MR. RIPPY: Okay. we've withdrawn our
02:54 objection to 3. The one current1y in Mr. Hindera's
hand, I don't know if that one has an affidavit or not,
I
does it?
MR. HINDERA: It does not.
MR. RIPPY: we do object to that one.
THE REPORTER: Excuse me. I don't have it
VIRGINIA BUNTING, CSR
(512) 940-6597
64
marked as 3.
MR. HINDERA: This one right here, this is
3.
MR. RIPPY: Okay. So 3 we don't object to.
02:54 THE COURT: We need to be rea11y carefu1
with these exhibits, because you're jumping around
so
on the
much, the Court is having a hard time staying
give me
same page, a1ong with the court reporter. So
I'm reviewing
just a minute here. I want to catch up.
21.’ I'm referring to Exhibit
02:54 at the moment Exhibit No.
No. 20. Give me just a minute, p1ease. I've now
reviewed 20.
Now, Counse1, you had made a reference in
some of these, there's a reference by a physician of
02:56 disabi1ity. And what exhibit are you saying that that
has been represented in?
MR. HINDERA: To me, Your Honor?
THE COURT: No, sir, in the records
admitted into evidence.
02:56 MR. HINDERA: None that have been admitted
so far. The reference is, you wi11 recaT1 Mr. Rippy
here
asked my c1ient in any of these stack of documents
is there anyone who diagnoses you with a
disabiiity.
MR. RIPPY: That's not exact1y what I said.
02:57 THE COURT: No. At this time, Mr. RTPPY,
VIRGINIA BUMTING, CSR
(512) 940-6597
65
wou1d you 1ike to take the witness on voir dire again?
N) MR. RIPPY: Yes, sir.
VOIR DIRE EXAMINATION
BY MR. RIPPY:
02:57 0. Yes, sir. Is there, to your knowiedge,
—- that
o<::4=<.o
anywhere in any of the records that have been
have been admitted or I guess‘the one you're hoiding
where it says you can't work, you're unabie to ho1d any
kind of job? Is there anywhere that says that?
02:57 A. It's evident in there. It doesn't specificaiiy
state that.
12 Q. Do you have any resumes out?
13 A. No.
14 Q. Have you -- you've been getting 2,000 a month
02:57 15 in spousai support the Iast two years, right?
16 A. Yes.
17 Q. Have you appiied for any jobs?
18 A. No.
19 Q. Any job?
02:57 20 A. None.
21 0. You Iive at home with your foiks?
22 A. I Iive in my parents‘ winter home, and
23 current1y they don't Iive there anymore. But,
24 originaiiy, when I moved there, they were Iiving there
02:58 25 part of the year. And then my dad Iived with me for --
VIRGINIA BUNTING, CSR
(512) 940-6597
66
._x
Q. I don't care who e1se Tived there. You Tive in
N one of your parents‘ home?
A. Yes.
0. You're not on SSI and you haven't app1ied?
02:58 A. No. I'm ine1igib1e due to my husband's income.
O¢O®\lO3U'|-[>00
MR. HINDERA: And, Your Honor, we're
getting a 1itt1e far afie1d on the voir dire.
THE COURT: That's true.
Is that a11 you have on your voir dire,
02:58 _\
Counse1?
._x
...x
MR. RIPPY: Yes, sir, Judge.
_x N) THE COURT: Thank you. You may proceed
_\ O0 with your examination.
_\ -83 CONTINUED DIRECT EXAMINATION
02:58 _x
O‘!
BY MR. HINDERA:
_\ 03 Q. Ma'am, in this record from the Mayo Ciinic,
A \l
does it state that you're disab1ed?
._\
G3 A. Yes.
.1
(0 Q. And this was in this stack that Mr. Rippy was
02: 58 I0 0 ta1king about?
I0 _\
A. Yes.
N)
N MR. HINDERA: Your Honor, we wou1d Tike to
have this marked as Respondent's Exhibit
N) (A?
-- it is
N) -B marked. I'm sorry.
02258 l\) 01 We wou1d Tike to have Respondent's --
VIRGINIA BUNTING, CSR
(512) 940-6597
67
_|.
sorry, Petitioner's Exhibit 28 admitted into evidence,
Your Honor.
MR. RIPPY: And again, is this one with an
affidavit or is this one without an affidavit?
02:59
OO'l-D-0Ol\)
MR. HINDERA: He opened the door. He asked
my c1ient in this stack of documents here. And that
opens the door, Your Honor.
MR. RIPPY: To the one she's hoiding or the
one --
02:59 _;
MR. HINDERA: Because he knows that
._x
_x
document says she has a disabi1ity.
_\
|\J
THE COURT: was that document, Counse1, not
_x Q)
fi1ed by business records affidavit?
.4 -P
MR. HINDERA: It was not. we did not get
02:59 ._\ (J1
that unti1 Tast week, Your Honor.
_\ 03
THE COURT: And it was not produced in
_x \l
discovery?
_x on MR. HINDERA: No, Your Honor.
..\
(D THE COURT: Okay.
02:59 I\.)
O MR. HINDERA: But that was in the stack
[0 —.|
that he referred to, Your Honor. He asked her about it.
l\) I\)
THE COURT: The objection to hearsay is
I\J (.0
sustained. And I beiieve that was No. 28. 28 is not
N -I3
admitted.
03:00 l\)
O‘!
Q. (By Mr. Hindera) Have you been seeing
VIRGINIA BUNTING, CSR
(512) 940-6597
68
C1audia -— a Iicensed psycho1ogica1 counse1or?
A. Yes.
Q. And what is her name?
A. Claudia Ghio.
03:00 Q. I'm now handing you now what has been marked as
K
Petitioner's Exhibit 2.
MR. HINDERA: And, Your Honor, there is a
business records affidavit attached to that.
0. (By Mr. Hindera) Are those the records of
03:00 CIaudia Ghio?
A. Yes.
Q. And I'm now handing you what has been marked as
Petitioner's Exhibit 29. Are those the records -- the
Iatest records we got the other day from C1audia Ghio?
03:01 A. Yes.
MR. HINDERA: Your Honor, we ask that
Petitioner's 2 and Petitioner's 29 be admitted into
evidence.
MR. RIPPY: And I think, Judge,
03:01 Petitioner's 2 has a business records affidavit, which
may or may not have been fi1ed, so we don't object to 2.
29 is apparent1y some recent addendum
without one. we do object to 29.
THE COURT: Do you have any response to the
03:01 objection, Mr. Hindera?
VIRGINIA BUNTING, CSR
(512) 940-6597
69
_\
MR. HINDERA: we11, again, Your Honor, she
was asked specifica11y about those documents by
Mr. Rippy. He pointed the documents and said is there
something in there that says you can't work. we have a
03:01 OLOQ)\lO'>(J'l-l>(.\)l\)
right then to produce those documents into evidence if
they ref1ect on whether she has a disabi1ity or not.
THE COURT: Objection to 29 is sustained.
2 is admitted.
(Petitioner's Exhibit No. 2 admitted)
03:02 _\
Q. (By Mr.‘Hindera) Okay. why have you been
._\
..x
seeing C1audia Ghio?
_\ |\)
A. For my anxiety, depression, and coping with my
_x
0.)
chronic pain issues and memory, cognitive memory
_\
-k prob1ems.
03:02 .4
U1
Q. Okay. So to get to what Mr. Rippy has been
_\ O) asking you about, you're unab1e to work because of
_\ \l
chronic pain, correct?
_\ oo A. Yes. Chronic pain and memory.
_\
(O 0. Ma'am, iust answer my question.
03:02 N)
O A. Yes.
N) _\
Q. You're unab1e to work because of chronic pain,
[0 [0 correct?
l\) (.0
A. Yes.
l\) -15
Q. And that's ref1ected in those documents that
03:02 l\J
0'1
have been admitted, correct?
VIRGINIA BUNTING, CSR
(512) 940-6597
70
A A. Yes.
0. You're unab1e to work because of memory
incompetence, I guess.
A. Uh-huh. Yes.
03:02
OLO®\lO301-.|>0J|\)
0. Short term and 1ong term?
A. Yes.
Q. You're unab1e to work because of the chronic
anxiety and depression that you have, correct?
A. Correct.
03:03 A 0. And at one point, you were diagnosed in those
A A documents with bipo1ar disorder, correct?
A N A. I think they -- I don't know if I was diagnosed
A 00 with that. I think they entertained that, but I would
A -h have to see where --
03:03 A 01 Q. Okay. Do you have hypermobi1ity disorder?
A
0')
A. I have Eh1ers-Dan1os syndrome, hypermobi1ity
A N! type.
A 00 Q. Okay. Does that prevent you from ho1ding down
A (0 a fu11-time job or any kind of job?
03:03 IV O A. It causes chronic pain, anxiety, and
R)
A depression.
l\) l\)
Q. Have you been diagnosed with chronic fatigue?
N) CD
A Not -- yes. Chronic fatigue, yes.
l\) -38 Q. Are you in constant pain for the most part?
03:04 [V
U‘!
A Yeah. I'm a1ways in pain. It's just the
VIRGINIA BUNTING, CSR
(512) 940-6597
71
_\
severity.
Q. wouid you piease Iook at this judge and te11
him why it's not reasonab1e to expect that you're going
to be ab1e to hoId down a job.
03:04 OCa3l\)
A. It's difficu1t for me to sit Ionger than
20 minutes without starting to experience severe pain.
This is very difficu1t for me to be in court today.
I'11 probabiy be in bed for a few days after because I'm
pushing the 1imit. I can't stand or wa1k for an
03:04 _\
extended period of time. I use the cart in the grocery
_\ ._x
store, and I have handicapped parking. And I try not to
_x
N use it, uniess Iim very fatigued. But I have a Iimited
_\ C»)
amount of energy that I have to partition out through
_x
-F the day, as I exp1ain the fatigue. The pain gets worse
03:05 ._x 01 when I'm sitting in one piace, when I'm typing on the
...x
O‘)
computer, my hypermobi1e fingers and my hands. And I
A \l
have difficu1ty focusing and remembering, keeping my
_\
CD mind on track. And even watching T.V., I can't fo11ow a
_\
LO T.V. show through to the end. I just 1ose track.
03:05 I\.)
O 0. Did you enjoy working?
N ._\
A. Oh, I Ioved working and I Ioved going to
l\) l\)
schoo1. I mean, I was -- I was, you know, in honors,
N) (.0
got As in both of my c1asses. And I was premed in my
l\) -B bache1or's degree.
03:06 l\) 01 Q. And if you cou1d ho1d down a job, wou1d you?
VIRGINIA BUNTING, CSR
(512) 940-6597
72
_\
A. I wou1d, yes.
0. And if you cou1d actua1Ty accept a job in good
faith, wouTd you have put out resumes this year?
A. Yes.
03:06
O¢O(XJ\lCDO‘I-l>t'.Ol\)
Q. Are you asking this Court to find that you are
unab1e to work?
A. Yes.
Q. Are you asking this Court to find out that you
have a physica1 or menta1 disabi1ity that prevents you
03:06 _x
from working?
_\ ..x
A. Both.
_\
IO 0. Okay. How did you get the handicapped parking
_\ O0 sticker?
_\ 4:-
A. Because of my chronic fatigue.
03:07 ..x
0'1
MR. RIPPY: Objection; re1evance.
_\
O‘)
Handicapped parking sticker. It just can't be re1evant,
_x
N Judge. _
_x co MR. HINDERA: It means the State found that
_|
(O she has --
03:07 N)
0 MR. RIPPY: That's not what it means.
I0 _\
THE COURT: I'm going to go ahead and Tet
I0 [0 her answer as to why she thinks she has a disab1ed
l\) 03 parking sticker.
|\) A A. Because of my chronic pain and fatigue.
03:07 I\) O1
0. (By Mr. Hindera) And are you able to meet your
VIRGINIA BUNTING, CSR
(512) 940-6597
73
._x
minimum -- to generate sufficient income now to meet
your minimum reasonable needs?
A. I mean, I have difficu1ty doing dai1y
activities, getting my dai1y activities done in the day.
03:07 I need assistance with that.
-¥Of.Om\lO>O'l-l>OOl\J
0. Now, have you created a -- how much do you
think you need to Tive on each month?
MR. RIPPY: Judge, if we're going to read
from the proposed disposition, we'11 stipulate what his
03:08 proposed disposition says, not to its truth.
_|_|
THE COURT: Mr. Hindera, I wi11 take notice
.4
N)
of the contents. She thinks -- her representation to
_\
(.0 the Court based on her proposed decision is that she
_1 4-‘-
a11ows that she needs $3,000 a month from her husband.
03:08 _\ U1
MR. HINDERA: we11, no, that's not
_\ C7 entire1y -- no.
_\ Kl
THE COURT: Then you better go ahead and
...\
CO ask questions.
A (O 0. (By Mr. Hindera) Do you need $3,000 tota1 to
03:08‘ l\)
O 1ive on? Is that what you're asking this Court to make
l\) _x
sure that you have access to $3,000?
|\J l\)
A. My budget is for more than that, but I --
N OJ THE COURT: Certainiy you may examine the
|\> A witness, Counse1. I thought if there's a shortcut,
03:09 |\§ O1 we'11 take it. If there's not, we11, then it's a
VIRGINIA BUNTING, CSR
(512) 940-6597
74
questions and answer. You may proceed.
Q. (By Mr. Hindera) And you're not asking Wayne
Peck to provide you with $3,000, are you?
A. we11, my -- because of --
03:09 MR. HINDERA: I'11 strike that question,
Your Honor.
0. (By Mr. Hindera) You want 50 percent of the
retirement -- the mi1itary retirement, correct?
A. ’Yes.
03:09 Q. And you want Wayne Peck then to make up the
rest of that to get you to the 1eve1 that you're at now?
A. To the 3,000.
Q. Yes, ma'am.
THE COURT: I have a very specific -- and,
03:09 1awyers, you can provide me this information. when is
Mr. Peck going to start receiving his retirement?
MR. RIPPY: August, Your Honor.
THE COURT: In August?
MR. RIPPY: He retires in August, Judge,
A
03:10 September 1, 2014.
THE COURT: A11 right. what's his current
amount of support to her?
MR. RIPPY: 2,000 a month in temporary
spousa1, p1us he's been paying the mortgage.
03:10 MR. HINDERA: Your Honor --
VIRGINIA BUNTING, CSR
(512) 940-6597
75
_\
MR. RIPPY: And if you Iook at his proposed
disposition, that's how much negative he is every month.
THE COURT: Mr. Hindera, a11 I'm asking --
and 1et me explain is I'm trying to make sure that your
03:10 ciient doesn't go under between now and the time that he
—-\O(O®\lO3U'1-§0)l\‘J
actua11y begins receiving his retirement. So I don't
know if you want to argue on that particu1ar point, but
that's just a question in the_Court's mind. If the
Court orders $700 in temporary support, is she going to
03:10 receive the retirement to supp1ement that as we11? And
in the Court's mind, don't understand this
._L_\
if I
._x
N correct1y, I cou1d order an amount that you ask that I
_\ CA7
order, maybe 700 over and above retirement, and she just
_\
-h gets for the next five months $700. And that's what the
03:10 _.\
0'1
Court was trying to c1arify. It was to your client's
_x
CD benefit that I ask that question.
_\
V MR. HINDERA: Yes, Your Honor. I wasn't
.1
C0 objecting to the Court asking the question. I'm
..\
«J objecting to Mr. Rippy a1ways saying that somehow he is
03:11 l\)
O paying the mortgage and it's some sort of Augean task
I\) ._I
when the fact was that's what he wanted. He wanted the
l\) N)
house in the mediated sett1ement agreement.
l\) (.0
THE COURT: I understand that you're in the
Ix.) -I3
heat of batt1e, Mr. Hindera. I'm just Iooking at
03:11 I\) O1
numbers. If he's providing $2,000 a month and making
VIRGINIA BUNTING, CSR
(512) 940-6597
76
_\
the mortgage payment, then the Court -- and he has been
making the mortgage payment, then what the Court is
Tooking at is what is the mortgage payment because
that's the tota1 package of his support. And so what
03:11 would that number be?
OLDCX>\lO3(J'1-h(A>I\)
MR. HINDERA: As of this weekend, we've got
an offer and a contract on this house.
THE COURT: That's not what I asked,
Mr. Hindera.
03:11 ...\
MR. RIPPY: P1us it was another 2,000,
_\ _\
Judge.
_L l\)
THE COURT: Okay. So how much is the
_\ OD mortgage payment and the 2,000?
_.x
A MR. HINDERA: 12- or 1400.
03:11 _x U1
A. It was 1100 at first because we had 0 percent
_x
CD interest, but I think it's 1400 now. But that's not the
._x
N residence I Tive at. That was the residence he was
_\
Q Tiving at.
_\
(O MR. RIPPY: we11, no one Tives there now,
03:12 l\)
O Judge. But if you Took at his proposed disposition, he
N _\
is exact1y the amount of the mortgage and taxes
I\) [Q underwater every month. So it's 1,505.87, to answer the
N 00 Court's question.
N J?-
THE COURT: A11 right. So he's paying
03:12 I\.) O1
about $3,500 a month in temporary?
VIRGINIA BUNTING, CSR
(512) 940-6597
77
_\
MR. RIPPY: That's correct.
THE COURT: That's what I wanted to know.
MR. RIPPY: Yes, sir.
THE COURT: Thank you.
03:12 O(D®\lO)U'|-J>-0Jl\>
MR. HINDERA: May I approach, Your Honor?
THE COURT: Yes, sir.
‘
MR. HINDERA: Just so we're c1ear, here's
his Iatest LES.
THE COURT: Is that okay?
03:12 _\
MR. HINDERA: “Is that okay?
_x _x
THE COURT: Do you have any objections to
_x
N this?
_I.
(.0
MR. RIPPY: we11, it may be what's
_x
A attached. we've attached an LES to our proposed
03:12 _x 01
disposition. I'm not sure if it's the Tatest one.
_; O? MR. HINDERA: I don't beiieve it's the
—l ‘I
Tatest one.
_\
Q MR. RIPPY: It's the exact same one, so we
_\
(0 have no objection.
03:12 IV O MR. HINDERA: It is. And, Your Honor, I've
I\) _\
aTso attached here, then, the civi1ian equiva1ent,
N l\)
because the fact is Mr. Peck makes a considerab1e amount
N (A3
of money. Major Peck.
[0 -5 MR. PECK: Mister is fine.
03:13 [0 O1 ‘MR. HINDERA: Major Peck makes a
VIRGINIA BUNTING, CSR
(512) 940-6597
78
_\
considerab1e amount of money. we haven't been driving
him into the poorhouse. He's been ab1e to a take trips.
He's been fine.
THE COURT: Thank you. A11 right. You may
03:13 proceed, Counse1.
OCOOJ\lO>O‘l-kl\)
we're not going to make it. we need to
find out what tomorrow's got. Ma'am, why don't you
stand up and stretch.
THE REPORTER: Judge, for the record, I
_\
just need confirmation about No. 6 and No. 3 on the
_\ _x
exhibits.
._L |\)
THE COURT: I did not admit 6, and I did
_| (.0
not admit 3. They weren't offered.
_L
-P
MR HINDERA: And I'11 make sure we don't
03:13 15 get those mixed up, Your Honor.
16 MR. HINDERA: I”m about to rest. And --
17 MR. RIPPY: I'm not a hundred percent
18 convinced we won't make it, but 3:45 is a ta11 order.
19 THE COURT: Yeah, it is.
03:14 20 (Brief discussion.)
21 THE COURT: A11 right. we're going to
22 finish with her. I want to hear from your c1ient,
23 Mr. Rippy. we wi11 have you back here at 1:30 tomorrow.
24 we're going to finish with this witness. The 3:45,
03:15 25 4:00 o'c1ock is not optiona1. I must go.
VIRGINIA BUNTING, CSR
(512) 940-6597
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_\
So are you -- I do need to take about a
5-minute break, gent1emen. we probab1y a11 do. So just
give me a minute. Thank you.
(Recess taken from 3:14 p.m. to 3:23 p.m.)
03:23 THE COURT: A11 right, Mr. Hindera.
OtOCD\lO70'I-hC.0l\)
0. (By Mr. Hindera) Ma'am, this Morgan Stan1ey
account that Major Peck says is his separate property
that contains the inheritance from his father, what's
the name of that account right now?
03:23 .4
A. we11, I know it says Morgan StanTey on it. I'm
_\ _\
not sure if it says Smith Barney, too.
_L
[U 0. Did it start out --
_A OD A. It started out as SaTomon Smith Barney, I
_\
-h think, and then Smith Barney. And then I think it's
03:23 _\ 01 Morgan StanTey, but it's a11 the same. It's just they
_x
0')
kind of void each other out.
._\
\l
Q. Okay. what monies went into that account?
—L
W A. That was in 1995. we opened that account. we
_\
(D went to -- actua11y. we were in New York and went to
03:24 l\)
O the office. And the monies from that account -- in that
l\.) _\
account were wired from our joint checking account. And
NM it was in the NCIB -- NCNB Bank, which turned into
M OJ Nations Bank and then Bank of America. It was the same
l\) 45 account that we had for --
03:24 l\) U!
Q. Did Major Peck receive an inheritance from his
VIRGINIA BUNTING, CSR
(512) 940-6597
80
_\
father when his father died? Yes or no?
A. No. we11, he got --‘I know he got a 1ife
insurance thing that was 1ike $5,000, but I'm unsure of
any other.
03:24 O<.OG>\lO3U'l-It-(.\>l\.)
Q. Okay. Are any of the funds that went into the
Smith Barney, Morgan Stan1ey, whatever that account is,
are any of those funds from an inheritance that Major
Peck received?
A. Not that I'm aware of. It was when we came
03:25 _x
back from -- when we came back from the Midd1e East, the
_.\
_\
summer we were visiting before we came back from the
...x l\)
Midd1e East.
._L
OD MR. HINDERA: Your Honor, I wi11 pass the
_\
A witness.
03:25 _\ U1
THE COURT: A11 right. Your witness,
_\ 07 Counse1.
._x
\l
MR. RIPPY: Thank you, Judge. May I
_\
W proceed?
_\
(O THE COURT: You may.
03:25 NO MR. RIPPY: A11 right.
N) .3
CROSS-EXAMINATION
K) |\) BY MR. RIPPY:
l\) OJ 0. A11 right. So, Ms. Peck, the truth is -— and
l\J -B
your memory seems pretty good on this point, when you
03:25 N 01 were in New York and you wired in money from the NCNB
VIRGINIA BUNTING, CSR
(512) 940-6597
81
.1
account.
MR. HINDERA: Your Honor, we'11 object as
to the sidebar.
MR. RIPPY: we11, Tet me ask her.
03:25 Q. (By Mr. Rippy) Is your memory good on this
point?
OCO®\lO>U'l-BOJIV
A. It's oniy good because I spoke with -- because
of the IRA, I spoke with our financiai --
Q. That's a yes or no question. Is your memory
03:26 _\
good on the point of the 1995 money transfer? Is it
_\
._x
good or not?
_\ l\)
A. Currentiy, yes.
._\
(D 0. And at that time, you transferred money when
_;
-J3
y'a11 were in New York from your NCNB account, right?
03:26 _x 01
A Yeah, our joint account.
..x
CD Q And the amount was $66,000, wasn't it?
.4. ‘I
A That, I don't reca11 the exact amount.
_x
CD Q. So you don't know what the amount was?
_\
(.0 A we11, I wrote it down, but I don't reca11 it.
03:26 NO Q we11, the 1aw of Texas a11ows me to ask for
N _\
your best estimate. So what is your best estimate of
l\) l\)
the amount that was transferred into your account?
NJ 00
A. That cou1d be correct about that.
IV -5 Q. And there's no other source that $66,000 wou1d
03:26 N 01 have come from except for the trust that was estabiished
VIRGINIA BUNTING, CSR
(512) 940-6597
82
.3
on the death of Wayne Peck's father; isn't that right?
A. We11, before we went to the Midd1e East, we
both so1d both of our cars. And whi1e we were in the
Midd1e East, we hoth worked and didn't have to pay
03:26 taxes. And there was -- we had money in a savings
O(OG)\lO‘.vU'I-l>¢A>|\)
account.
0. So, yes or no, did the money come from se11ing
your cars?
A. Not just the cars, no.
03:27 ._L
Q. Yes or no, did the money come from just money
_\ _\
you had been saving?
_x
N A. It was a combination—of those things.
_\ (.0
Q. Yes or no, did Wayne trust -- Wayne Peck have a
_x
-l>
trust estab1ished for him up on the death of his dad in
03:27 _\ (II
the ear1y '90s?
.4
O’)
A. No.
_\ NI
Q. Yes or no, did Wayne Peck's trust dissoive in
.1 GD
1995 at the time of this transfer?
_\
(O A. No.
03:27 |\3
O Q. Now, 1et me ask you this: You say you have a
|\) ._L
1itt1e troub1e conducting your dai1y activities; is that
l\)
I0 right?
l\) O.)
A. Yes.
l\>
-§ Q. Your daily activities inciude motorcyc1e
03:27 I\) U!
riding?
VIRGINIA BUNTING, CSR
(512) 940-6597
83
_x
You have a picture of me on a motorcyc1e.
sure do. What is the date of that picture?
PP?’
I
That was about --
Q. what's the date of the picture of you on the
03:28
OCOGKIOEU1-l>OOl\J
motorcyc1e?
A. I don't have the date. I can give you an
estimate.
MR. HINDERA: Your Honor, we're going to
object.
03:28 _:
A. No, I can exp1ain this.
_\ _\
THE COURT: Ho1d on, ma'am.
_x
l\)
MR. HINDERA: That's fine.
_\ Q7
THE COURT: Let Mr. Hindera object.
_\
-h MR. HINDERA: He's asking about a document
03:28 _x 01
that I've not seen and asking specifica11y a date of a
_x 03 document that I've not seen and it's not in evidence.
_n \l
MR. RIPPY: And the response is, the
_\ 00 question is, what's the date of the picture of you
_\
10 riding a motorcyc1e? we don't have to show a picture of
03:28 N)
O a motorcycTe. She admits there is one. I want to know
N _x
the date.
N l\J THE COURT: In regards to something that
N 00 wou1d be based on her persona1 know1edge, she may
N J3 testify to that. As to any pictures that were not
03126 IO 01 produced in discovery, your objection wi11 be sustained,
VIRGINIA BUNTING, CSR
(512) 940-6597
84
.x
a1though it hasn't been offered yet.
MR. HINDERA: And it probabiy -- this is a
good point to make this argument. They did not respond
to discovery. Therefore, they do not get to introduce
03:28 OtOm\!O3(.l'l-bOs>l\J
any documents in discovery, as per 192.6.
THE COURT: Mr.'Hindera, we're not rea11y
there yet. I'm just trying to find -- I think he has
asked a question about a motorcycie. And I think under
the circumstances, I've sustained your objection as to a
03:29 _\
picture, which is yet to be offered. But as to the
_.\
_\
objection to the question, your objection, I do not
_n
I\J
be1ieve pertains to her testimony and personai
_\ (ad
know1edge. And in that respect it's overru1ed.
_|
-5
Now, 1et's go to work. Thank you.
03:29 _\
U‘!
Q. (By Mr. Rippy) what's the date of the picture
_.L
O‘)
of you riding a motorcycie?
._x
\l
A. Of me riding the motorcyc1e or sitting on the
_\ oo back of a motorcycie?
._x
(O Q. Either one.
03:29 NO A Maybe October.
N ._x
Q Of what year?
l\) I0
A Of this past year.
IV (.0 Q. 2013?
N -F A Yes.
03:29 N 01 Q And was there a time when you rode a motorcycie
VIRGINIA BUNTING, CSR
(512) 940-6597
85
_\
in October of 2013?
A. For a short period of time on the back of a
motorcyc1e.
Q. who was on the front?
03:29 A A friend of mine.
O(OG>\lO)U‘l-b(AJI\J
Q who is that?
A. Mr. Gui1amo-Ramos, Jr.
0 And why wou1d you send a picture 1ike that to
your husband?
03:30 _\
A. That summer, we were actua11y under good terms.
._\ ._\
I had he1ped him with some depression issues he was
_\
[V having, and he was encouraging me to try to date. And I
_L O»)
was actua11y sending him a picture to show that --
.4 -I>
Q. You were out having fun dating, right?
03:30 _; 01
A. -- I had met someone.
_\ 03
Q. we11, the purpose of the picture was to show
_x ‘I
him you were out having fun dating, right?
_| on A. Yes, because he was encouraging that.
_x
(0 0. Okay. October of 2013, right?
03:30 NO A. Yes. But that ride was not very -- it wasn't
N _\
very good. I -- it was very short.
NN Q. Around the same time -- but you did testify you
|\) 00 have troub1e remaining seated, right? That was your
N -5 testimony just 10 minutes ago?
03:31 N 01 A. Yes.
VIRGINIA BUNTING, CSR
(512) 940-6597
86
._x
Q. Around that time --
A. As you can see, I'm sitting now, but I'm having
a hard time. Yeah.
0. Okay. Around the same time -- we11, a1so,
03:31 OtOm\lO7U‘l-l><.Ol\)
about an hour ago you testified you have troubie
maintaining focus, you have some memory prob1ems, right?
A. Yes.
Q. And there was a time around the time of the
motorcyc1ing dating picture when you ran some Iicense
03:31 ..\
p1ates and confronted Wayne Peck that he either had a
_.\ _|
gir1friend or had somebody staying over at y'a11's
_\
l\)
house, you ran her Iicense p1ates, right?
.3
(.0
A. That's incorrect.
_x
-k Q. Did you ca11 Mr. Peck and te11 him the resu1ts
03:31 _\ O1
of running some Iicense p1ates?
_\ O7
A. I toid him that I was informed by someone in
_\ *1
the neighborhood that there was a car in the driveway
_x
W frequent1y. And I knew about that for a 1ong time. And
_;
(.0 I didn't confront him unti1 severa1 months, maybe
03:32 NO six months after the fact.
l\J _x
0. And you to1d him to whom the car was
N I\.)
registered, didn't you?
N) (A)
A. It was three peopie. So I didn't know who the
N J3 person was. I kind of wanted to get it out in the open
03:32 l\) 01
and it not have to be a secret. And that was my way of
VIRGINIA BUNTING, CSR
(512) 940-6597
87
_\
doing that. It was not under i11 intentions.
MR. RIPPY: Judge, I wi11 pass the witness.
REDIRECT EXAMINATION
BY MR. HINDERA:
03:32 O©®\lO>U1-F-O\>l\)
Q. You didn't get ahold of his commanding officer
about him having a girifriend, did you?
A. ~Never.
Q. And, in fact, we knew about it months ahead of
time, right?
03:32 _x
A. I think at Ieast six months.
.._\ _\
Q. And when his attorney asked, you know, he wou1d
_\
IQ Tike to start dating, we said if we're going to make him
_x
0.3
wait two years, go ahead?
.3
J3 A. The on1y time I threatened --
03:33 —I U1
Q. Now, with respect to this motorcyc1e, you sat
_\
O‘:
on a motorcyc1e and you rode for a short period of time,
_\ \l
correct?
_\
CO A. Yes. That day, yes.
_\
(.0
Q. Did that cause you any pain?
03:33 NO A. Yeah. I had severe pain in my Tegs and my butt
|\> _\
and my back, but it was just a short ride and gave me a
N) l\3
smi1e.
N (.0
Q. Just so we're c1ear, ma'am, you're not what we
I\) -h used to ca11 in the mi1itary a ma1ingering ma1content,
03:33 IV 01 are you?
VIRGINIA BUNTING, CSR
(512) 940-6597
88
A A. I don't know what that is.
Q. If you cou1d work, you wou1d work, wou1d you
not?
A. Of course. I've worked since I was 15.
03:34
OLO@\lO')O'I-J>0J|\)
MR. HINDERA: Your Honor, that's a11 we
have.
THE COURT: A11 right.
MR. RIPPY: No further questions for this
witness, Judge.
03:34 A THE COURT: I be11eve we have about
A A 10 minutes, so gent1emen, you_can pack it up. we‘11 see
A N you again at 1:30. we are in recess.
A 00 (Court recessed unt11 3/18/14, 1:30 p.m.)
A A
A 01
A 03
A V
A oo
A (O
|\1 O
R) A
l\) l\>
I\) O0
l\.>
A
N 01
VIRGINIA BUNTING, CSR
(512) 940-6597
89
_x
REPORTER'S CERTIFICATE
STATE OF TEXAS *
COUNTY OF WILLIAMSON *
—¥OOJ|\'>
NANCY MARIE PECK >(v>+=(-=(-=t-:(-x-x-a(-
WILLIAMSON COUNTY, TEXAS
AND
WAYNE CODY PECK COUNTY COURT AT LAW NO. 4
_s
_\ ._x
_\ N)
_\ (.0
REPORTER'S RECORD
_\
A MARCH 18, 2014
._x 01
JUDGE'S RULING
_\ O)
_\
\l
.._x
G!
_.\
(O On the 18th day of March, 2014, the
NO fo11owing proceedings came on to be heard in the
l\) _\
above-entit1ed and numbered cause before the
l\> l\>
Honorab1e John B. McMaster, Judge Presiding, heTd
l\) 00 in Georgetown, wi11iamson County, Texas.
N -I3
Proceedings reported by computerized
l\) 01
stenotype machine.
VIRGINIA BUNTING, CSR
(512) 940-6597
_x
APPEARANCES
MR. JOHN J. HINDERA, J.D., PH.D.
THE HINDERA LAW FIRM
SBOT No. 24036782
4425 MoPac South
Bui1ding 2, Suite 107
O©CD\lO’)(J'l-b0J|\)
Austin, Texas 78735
(512) 899-3631
(512) 899-3618 Fax
ATTORNEY FOR THE PETITIONER
MR. FELIX RIPPY
RIPPY, HENDERSON & TAYLOR, PC
SBOT No. 16937400
3000 Joe DiMaggio, Suite 4
_\
Round Rock, Texas 78665
(512) 310-9500
_x _\
(512) 310-2580 Fax
ATTORNEY FOR THE RESPONDENT
.._\
N
_\ (A)
ALSO PRESENT:
._x -|>
Mr. Wayne Cody Peck
Ms. Nancy Marie Peck
_\ 01
.._x
O)
_\ \l
...n
C0
_x
(0
IO 0
l\) _\
N l\)
I\) OJ
N) 4:-
NJ 01
VIRGINIA BUNTING, CSR
(512) 940-6597
._x
CHRONOLOGICAL INDEX
VOLUME 3 OF 9
(FINAL HEARING)
March 18, 2014 Eggg S w—l
Petitioner Rests . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 10
C)(DG>\lO3U'|-l>C\J|\'>
RESPONDENT'S DIRECT EVIDENCE
WITNESS Direct Qgggg yg < o
Wayne Cody Peck . . . . . . . . . . .. 10,40 30,38 37
A11 C1ose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 42
Judge's Ru1ing..I . . . . . . . . . .
..4
. . . . . . . . . . . . .. 42
<.omoooo°°—'
_\
Proceedings Conc1uded . . . . . . . . . . . . . . . . . . . . .. 45
...x _\
Reporter's Certificate . . . . . . . . . . . . . . . . . . . .. 46
_.x
l\)
_x (.0
_.
A
_; U1
_.\
O1
_\ \l
_\ (I)
_\ «D
MO
N .x
Ix)
[0
IO 0)
N -B
l\) 01
VIRGINIA BUNTING, CSR
(512) 940-6597
ALPHABETICAL WITNESS INDEX
Direct Cross D V01
wayne Cody Peck . . . . . . . . . . .. 10,40 30,38 37 3
VIRGINIA BUNTING, CSR
(512) 940-6597
_\
PETITIONER'S EXHIBITS
DESCRIPTION OFFERED ADMITTED V L
Records 8 9 3
(Austin Pain Associates,
Jessica Horwath, PA-C)
Records 37 38
(Jason Boothe, M.A.,
L.P.A.)
O0JI\>
Defense Finance and 31 33
Accounting Service
Mi1itary Leave and
Earnings Statement
Handwritten note 34 35
4 32 Invoices 41 41
_|.
(The Hindera Law Firm)
..\
_\
N
_\ Os)
_x 45-
_\
0'1
..x O)
..s
NI
_\ G)
_;
(0
NJ C)
N .5
l\) l\3
N) 03
I\J
A
I0 01
VIRGINIA BUNTING, CSR
(512) 940-6597
...x
RESPONDENT'S EXHIBITS
DESCRIPTION OFFERED ADMITTED
W-2 (Wayne Cody Peck) 40 40
Last W111 and Testament 16 16
O(A>l\J
(M11ford Peck)
—L
_.L
_\
_x l\)
_\ O0
_\
-ls
_\ 01
._x 03
_s \l
_\ G7
.1
(O
l\)
O
|\.) _\
[0 l\)
N 00
l\) -J3
N 01
VIRGINIA BUNTING, CSR
(512) 940-6597
_\
PROCEEDINGS
MARCH 18, 2014
THE COURT: I be1ieve it's your witness.
MR. HINDERA: I'm going to caT1 Mr. Peck, I
:42 O(D(fi\lO3(J'l-BC»-’II\)
guess. But, Your Honor, we had some issue that I need
to put on the record with numbering the exhibits and
what have you. My staff put a number up here. It's
different than the number on the officiai.
THE COURT: That's okay, Counse1. we go by
:42 _\
the number that the court reporter marks. So are they
_x _.x
not proper1y marked?
..x
|\3
MR. HINDERA: They're proper1y marked. I
._\ (.0
referred to them differentiy. So we just need to put on
_\
-I3
the record that No. 18 is actually No. 20, and No. 20 is
:42 _\ O1
actuaTTy No. 22, and No. 6 is actua11y No. 3. And
_\ O) apo1ogize to the Court. But the court reporter and I
_n.
V worked it out Tast night.
_; O0 THE COURT: But that's about as c1ear as
_\
(O mud. So where are we?
:43 NO MR. RIPPY: Okay. Judge, I think I agree
NJ _\
with a11 of that, and I think I know what he's ta1king
l\) l\)
about even. But there's five -- but there's five tota1
IQ 0) admitted exhibits, correct?
N)
h THE REPORTER: Yes.
:43 l\) 01
THE COURT: Okay. And those admitted
VIRGINIA BUNTING, CSR
(512) 940-6597
exhibits are by number?
THE REPORTER: I have No. 2, No. 20,
No. 23, No. 22, and No. 21.
\lO7U'l-J>(a>|\)
MR. RIPPY: That comports with what I have,
01:43 but is that wrong?
MR. HINDERA: No. Those were the ones that
were admitted. And then No. 3, which was referred to in
questioning by Mr. Rippy and by myse1f with my c1ient
here, Ms. Peck, wasn't admitted, and I didn't offer it,
so I wou1d Tike to offer it now.
11 THE COURT: I beTieve that you offered it
12 and there was an objection made, I be1ieve, on 3.
13 MR. HINDERA: But, Your Honor, it has the
14 affidavit and we questioned her on it. It was the
15 second —— the supp1emented records that didn't come in.
16 MR. RIPPY: we1T, I think the objection was
17 that that cou1dn't possib1y have been fi1ed because of
18 its size.
19 THE COURT: we're probab1y going to have to
20 go back into the record since my record is so utter1y
21 convo1uted at this point in time that we can't even seen
22 to ascertain what our exhibits are.
23 Is -- gent1emen, you need to get that
24 straightened, and I wi11 give you about 5 minutes to do
25 so. I'm going to take a short break whi1e you handie
VIRGINIA BUNTING, CSR
(512) 940-6597
_\
that.
(Break taken from 1:44 p.m. to 1:47 p.m.)
THE COURT: A11 right. Do we have that
squared away?
:47 C
MR. RIPPY: Yes, sir, Judge.
THE COURT: You can have a seat. I do not
reca11 admitting three.
MR. HINDERA: It was offered, and Mr. Rippy
took the witness on voir dire, and then it was never
:47 ..\
ru1ed on, but they've stipu1ated that 3 is fine.
._l ._x
MR. RIPPY: And the Court is correct.
_\ I\)
There was no ru1ing admitting it, but we're withdrawing
_\ OD
any objections and stipu1ating that it may be admitted
..x
-5 and it's admissib1e and it can be admitted.
:47 _x (J1
THE COURT: You're offering it, Counse1?
_\ 01
MR. HINDERA: Yes, Your Honor.
._x
\!
THE COURT: 3 is admitted.
_\
CD (Petitioner's Exhibit No. 3 admitted)
_\
(D MR. HINDERA: Thank you, Your Honor, and I
:48 l\)
O apo1ogize for --
|\J _\
THE COURT: The confusion.
IV |\) MR. HINDERA: It was entire1y our doing.
M CO THE COURT: Yes, sir.
I\)
h A11 right. Your next witness.
:48 l\) 01
MR. HINDERA: Your Honor, at this point, I
VIRGINIA BUNTING, CSR
(512) 940-6597
10
_\
think we wi11 go ahead and rest.
THE COURT: Very we11. Counse1.
(Petitioner rests)
MR. RIPPY: Yes, sir, Judge. we wou1d ca11
01 :48 O(O®\lO)O'l-l>€.\>l\3 Major Peck.
THE COURT: Major Peck, having been
previous1y sworn.
MR. RIPPY: Judge, may I proceed?
THE COURT: Yes, you may.
:48 _\
WAYNE CODY PECK,
...x
_\
having been first du1y sworn, testified as fo11ows:
_\ l\)
DIRECT EXAMINATION
.._x
(.0
BY MR. RIPPY:
_\
J5 0. A11 right. Major Peck, can you give, for the
O1 :48 _\ U1
record, your fu11, true, and correct name, p1ease.
_\
O A. Wayne Cody Peck.
_x \l
Q. And you heard the testimony about your residing
_x 00 in wi11iamson County for at Teast six months and your
..s
CO marriage being insupportab1e and there being no
O1 :48 [0 O reasonabie expectation of reconci1iation, and you agree
|\) _\
with a11 of that, don't you?
l\>
N A. I do.
l\) (.0
Q. Now, you have been married, I guess, for coming
l\)
A up on 25 years to Nancy Peck, who is the Petitioner in
:49 N 01 this case, correct?
VIRGINIA BUNTING, CSR
(512) 940-6597
11
_\
A. That's correct.
Q. And you've a1so agreed for the Tast rough1y
decade of that period of time she has not worked; isn't
that right?
:49 A. That is correct.
And why is that?
C)(OOO\lG')(J'l-J>OJl\')
THE COURT:
A. We came -- one, she had some medica1 issues,
and we came to an agreement. I was pressuring her to
work. And we came to an agreement around 2002, 2003
:49 _x
time frame that we would have the kind of marriage Tike
_l _\
more a traditiona1 marriage where one stays home and
.3
N cares for the house and the home and that part of it and
_\ 03
I wou1d be the one that goes out and the breadwinner, so
_\
A to speak.
:49 ...x U1 Q. (By Mr. Rippy) Is it a fair statement it was a
_\
0':
mutua1 agreement between the two of y'a11?
_1 \l
A. Yes.
_\ O3 Q. She has a master's degree, I be1ieve, as do
_\
(O you; isn't that right?
:50 l\)
O A. That's correct.
N _.x
Q. And it's your opinion that she cou1d, in fact,
|\) I\) do a11 kinds of jobs; isn't that true?
N O) A. That's truefl
N -k MR. HINDERA: Objection, Your Honor; ca11s
:50 l\) (.71
for specu1ation.
VIRGINIA BUNTING, CSR
(512) 940-6597
12
_x
THE COURT: Sustained. Just rephrase your
question, please.
MR. RIPPY: Yes, sir, Judge.
Q. (By Mr. Rippy) Cou1d she work?
:50 O©GJ\lO3O'l-h<).'>l\)
A. Yes.
Q. What kinds of jobs do you think she cou1d do?
MR. HINDERA: Objection, Your Honor, if I
can take the witness on voir dire? I mean, this is way
beyond his scope as to what she cou1d do. And it's
:50 _\
specu1ation. And it's specu1ation as far as his -- he's
_x ._I
not an occupationa1 therapist'or anything.
...x N) MR. RIPPY: Judge, he doesn't have to be an
_1 O0 expert to testify what kind of job she can do.
_;
A THE COURT: I don't rea11y -- at this point
:50 ...\
U‘!
in time, Counse1, I'm going to sustain it. Let's move
_x
(D on.
...\
N MR. RIPPY: Yes, sir.
._x
Q Q. (By Mr. Rippy) Have you had some recent
_1
(O experience, Major Peck, with furniture being moved out
‘
:50 N)
O of your house?
l\) _\
A. I have.
NN Q. And what experience was that?
N (2.)
A. I got a text from both Nancy and my Rea1tor
l\) -P that she was moving some various things out of the
|\) 01 house.
VIRGINIA BUNTING, CSR
(512) 940-6597
13
4 Q. Do those things inc1ude a heavy hutch with
books?
MR. HINDERA: Your Honor. we're going to
object as to hearsay, un1ess Major Peck is going to say
O©0O\lO5U'I-l>0>I\)
that he witnessed her carrying something.
MR. RIPPY: It's not hearsay. He's
witnessing the hutch disappeared, Judge.
THE COURT: A11 right. If that is based on
his persona1 know1edge, the objection is overru1ed. If
4 it's based on a statement made by a nonparty, I'm going
.4 4 to sustain it.
.4
l\) MR. RIPPY: Yes, sir, Judge.
4 OJ 0. (By Mr. Rippy) So did the hutch disappear or
4 -Us
not?
4 U1 A. Yes. I went by there today. I've got
4 O) pictures.
4 N 0. Did Nancy --
4 W MR. HINDERA: we'11 renew our objection,
4 (0 Your Honor, that the hutch —- because the hutch is
I0 0 missing doesn't mean that my c1ient --
l\)
4 THE COURT: 0verru1ed. Have a seat,
N l\) p1ease.
l\) (.0 Q. (By Mr. Rippy) Did Nancy Peck text you after
N -b the hutch went missing and say she moved it?
01: [Q
01 A. Yes.’ And a Rea1tor did as we11.
VIRGINIA BUNTING, CSR
(512) 940-6597
14
Q. Did you hear Nancy Peck's testimony that there
was no trust when you inherited your dad's estate
or
one-fourth of your dad's estate? Did you hear that
testimony?
01 :52 A. I did.
MR. RIPPY: Judge, may I approach the
witness?
THE COURT: You may.
Q. (By Mr. Rippy) Let me show you what's been
:52 marked for identification purposes as Respondent's
Exhibit 2 and ask you if you recognize that?
A. I do.
Q. what is it?
A. That's the 1ast wi11 and testament of my
:52 father.
0. Does it set up a trust whereby you receive
one-fourth of the estate?
MR. HINDERA: Objection, Your Honor. He's
hasn't
asking him about the contents of a document that
been admitted into evidence. we're going to object
to
:52
this document we ta1ked about yesterday because they
didn't answer any discovery. So they're not a11owed to
bring in any documents under 192.6 in the Civi1
Procedure Ru1es.
01 :52 MR. RIPPY: A11 which wou1d be true if she
VIRGINIA BUNTING, CSR
(512) 940-6597
15
didn't take the stand and Iied about it, at which point
you get to be debunked.
MR. HINDERA: I'm not certain where in the
right
ru1es it says that particu1ar -- I've got them
--
:53 here. He gets to testify that she did, but as far as
THE COURT: Counse1, I determine as to what
O‘LO®\lO‘.vU'l-h(.Ol\)
he can testify to and what he doesn't testify
to.
That's a judiciai function. Do you have an objection
and a cohesive, coherent response to the objection?
MR. HINDERA: Yes. I do not be1ieve it
:53 _\
_\ ...x
comes in under 192.6A.
_\
N THE COURT: Overru1ed.
_\ O) Q. (By Mr. Rippy) Does that document that you're
..x
J: ho1ding give you one-fourth of the estate of your
:53 ._x
01 father?
_\
(D A. It does.
_\
\l 0. Is that the money that went into the account
of issues?
.5 oo that is attached to your proposed disposition
.4
«D A. It was.‘
Is there an amount of money on the Iast page
of
:53 l\)
O 0.
ho1ding?
l\) .3
the certified copy of the inventory that you're
l\) l\) A. Yes. It says the tota1 va1ue --
l\) 0) Q. I didn't ask you that yet.
l\) -B A. A11 right.
:54 l\>
U‘! MR. RIPPY: Judge, we move for admission of
VIRGINIA BUNTING, CSR
(512) 940-6597
16
what's been marked as Respondent's 2.
THE COURT: Judge notes that under that one
you've Todged an objection to the entry of that exhibit,
Counse1, for your record. I've overruled your objection
:54 and I'm admitting it.
O\lO)U1-h0J|\)
MR. RIPPY: Yes, sir, Judge, that's
Respondent's 2.
THE COURT: 2. Thank you. Now you may
01:55 answer.
$338,891.19, which was sp1it four
A. It states
12 ways after funera1 costs and sett1ing any
debts -- the
13 smaT1 amount of debts within the famiTy
estate.
14 Q. (By Mr. Rippy) Did you receive one-fourth of
01:55 15 that rough1y $313,000 amount?
16 A. That was around 69,000. I said 67 yesterday.
17 I was mistaken. It was 69.
18 Q. Is that your one-quarter of the net estate?
19 A. Yes, sir.
01-:55 20 Q. Is that what went into the Smith Barney,
21 Morgan Stan1ey account that is attached to your Proposed
22 Disposition of Issues?
23 A. Yes, sir.
24 Q. Now, you aTso heard your wife, Nancy Peck,
01:56 25 testify that she's got menta1 issues that may prohibit
VIRGINIA BUNTING, CSR
(512) 940-6597
18
Did you hear
her from working or make that difficuit.
that testimony?
A. Yes, sir, I did.
Q. Have you -- we've heard about your testimony
:56 and the furniture, but I'm taiking about menta11y, have
Peck recentiy that
you had some experience with Nancy
OtDCD\lO‘:O1-h0)l\')
of menta1
wou1d indicate that she's got a great dea1
acuity or aiertness?
A. we've communicated off and on quite frequentiy
person. we
:56 during the past two years. we've met in
presence and yours
have sometimes -- a few times in your
phone,
12 as we11. And the -- in person, and text, and
13 yes, we have. I have.
was when?
14 0. The Iast time that you came to court
A. I think it was over a year
ago, Iast -- it was
:56 15
16 Iike 18 months ago, something Iike that.
as you
17 0. Now, you've heard that characterized
of a mediated
18 were trying to wriggie out of or get out
characterization,
19 sett1ement agreement? You heard that
:57 20 did you not?
21 A. Yes, sir, I did.
22 0. why were you in court a year ago?
23 A. The -- when we had the -- per the mediated
conc1usion
24 settiement agreement that we came to the
a number of
01 :57 25 during the first mediation, she was a11owed
VIRGINIA BUNTING, CSR
(512) 940-6597
19
items on the Tist. There was a Tist of 10 items. I
forgot exact1y. They're in the agreement.
Let me short-circuit this. Missing
0. Okay.
court?
furniture, again, is that why you were in
O1-hO.>l\>
Yes. There were a number of items
taken that
01 :57 A.
were not on that Tist.
Q. Did there come a time at which you returned
in London?
OtOO0\lO)
from an MBA program you were attending
A. That's correct, sir.
back
01 :57 Q. And at that time, how Tong had you been
of a car in your
11 before Nancy Peck ran the Ticense pTate
driveway?
got a text stating, a few hours after
I
13 A. I
your reunion
14 returned from London, “we1come. How is
that I was
:57 15 going,“ with the imp1ication being she knew
there was a
16 reuniting at my house with Tammy. In fact,
sign within the house that said
we1come home. So I can
17
that. And then the
18 onTy -- I don't know how she saw
Tammy Horton, Brad
19 next day, I got a text saying, who is
friend and her
:58 20 wi1Tiamson, or Sydney Hudson, which is my
-- the on1y
21 ex-husband and her e1dest daughter. My on1y
is she ran the p1ates of the
22 way she cou1d have got that
23 car, the peop1e that are
registered to that car.
24 And how Tong since you returned from
0. Okay.
London happened —-
:58 25
VIRGINIA BUNTING, CSR
(512) 940-6597
20
A. That was the next morning, correct.
Q. watchfu1Ty; is that a fair statement?
A. Yes.
MR. RIPPY: Judge, may I approach the
:58 witness again? >
THE COURT: You may.
0. (By Mr. Rippy) what I'm showing you is your
It's in front of the
Proposed Disposition of Issues.
opposing counse1. I
Court, and I think it's in front of
front of you?
:58 know it's in front of me. And is it in
-- it's
MR. HINDERA: It hasn't been fiTed
It has not been admitted into
evidence.
been fi1ed.
Let me exp1ain, Counse1. The
THE COURT:
Court has not -- those are tria1 aids. You don't have
:59 to mark your proposed disposition. That's just your
want. It's Iike
wish Tist and it's you asking what you
I don't take it as evidence,
but
an opening statement.
gets fi1ed. And if you
it is a tria1 document and it
have one, and I think you do, you don't have to mark it.
I understand, Your Honor,
but
01 :59
MR. HINDERA:
to
he wants to ask him about a document that's attached
And those documents have not been
admitted into
that.
today.
evidence for consideration by this Court
THE COURT: what documents wou1d be
attached to it since I haven't seen the exhibit?
:59
VIRGINIA BUNTING, CSR
(512) 940-5597
21
MR. RIPPY: His Teave and earning
There's severa1
statement, the Morgan Stan1ey account.
--
documents, but there's nothing that
THE COURT: Why don't you Tet
Mr. Hindera -- have Mr. Hindera
have a Took at it.
01:59
Mr. Hindera, have you seen it?
O(O®\lO?IU1-l>(A>I\)
MR. HINDERA: I have seen his proposed
disposition, Your Honor.
THE COURT: But not the attached exhibits?
01:59 MR. HINDERA: There were attachments to it,
but they were not -- we propounded
discovery to this
11
party. This party never answered
discovery. Now, the
12
to admit it if it
13 ru1es are rea1 c1ear. He doesn't get
14 wasn't produced during discovery.
MR. RIPPY: If it was requested. And
02:00 15
16 that's the purpose of motion to compe1, which was
a
never fi1ed. And, of course, I
wasn't on the case back
17
a discovery
18 then, so I don't_rea1Ty -- we may have had
19 hearing, for a11 I The point being, we have no
know.
So you
02:00 20 evidence that anything Tike this was requested.
show
21 can't just say it wasn't produced. You have to
22 there's a request. That's why we have motions to
23 compe1.
MR. HINDERA: And I have -- in fact, our
24
--
02:00 25 discovery request
VIRGINIA BUMTING, CSR
(512) 940-6597
22
MR. RIPPY: That's why we have a motion to
so we don't
compe1 at a separate hearing from the tria1
do this.
think we can short-circuit this,
Judge, I
I'm pretty
02:00 though, 815 of the 1oca1 ru1es, which
wrote
fami1iar with since I was on the committee that
These are a
them, says exact1y what the Court said.
but they're
tria1 aid. They can be used as evidence,
not marked as evidence, nor are they
fiTed with the
02:01 District C1erk.
we11, except, Mr. Rippy, on
THE COURT:
that are -- that
that one, it's incTuding some documents
actua11y
are not a proposed disposition. They're
and admitted.
exhibits that need to be separateTy marked
02:01 So wi11 ask that you take the
I
documents the supporting documents off of the
--
regard.
exhibit, and you may question him in that
Mr. Hindera's objection is sustained.
MR. RIPPY: Yes, sir, Judge.
02:01
why don't you go ahead and
THE COURT:
witness,
come -- I wiT1 a1Tow you to approach the
Mr. Rippy, remove those attachments,
and you may then
resume your examination of the witness.
MR. RIPPY: Sure.
02:01 THE COURT: Now, show the exhibit to
VIRGINIA BUNTING, CSR
(512) 940-6597
23
Mr. Hindera so Mr. Hindera knows.
MR. RIPPY: And, dudge, we did exchange
these.
MR. HINDERA: we did.
02:02
The attachments, Mr. Hindera,
THE COURT:
sustained. The
have been removed. Your objection is
It's just
proposed disposition now has no attachments.
the form promuigated by the 1oca1 ru1es.
THE WITNESS: Your Honor, can I go grab my
02:02 g1asses, if that's okay?
THE COURT: You certain1y can go get your
giasses.
Q. (By Mr. Rippy) A11 right. So returning to the
in front of
proposed support decision, I think which is
a11 of us now, Page 1, nothing too
informative there.
02:02
Page 2, is that your gross wages as of your
Tast LES, 8304 per month?
A. Yes, sir.
6065.98
Q. Does that make on Page 4 your net wages
02:02 per month?
A. Yes, sir.
Given the expenses on Pages 4, 5, and 6, are
0.
you about $1,500 a month negative?
A. That's correct, sir.
the
02:03 Q. How have you been footing the bi11 for
VIRGINIA BUNTING, CSR
(512) 940-6597
24
How have you
basica11y $1,500 as exact1y your mortgage?
been doing that?
A. Running up credit card debt.
regard to
Q.Are you asking the Court, then, with
debt or other
02:03 O©G>\l®0'1-h(.\>l\)
debt to give each party the credit card
debt in his or her name?
into the
A. Just the credit card debt that we went
thousand.
initial two years ago, which is 19ish
Q. we11, that's what I'm asking you.
2'
Yeah.
'
02:03 A.
$1,500
Q. Are you persona11y wi11ing to take that
the 1ast
12 a month credit card debt that you've run up
13 coup1e of years?
14 A. Yes.I'm not asking her to pay that.
02:03 15 Q. Let's turn now to Page 8, which is your
1et's just go
16 Proposed Disposition of Other Issues, and
make sure you
17 through this in five minutes or Iess and
want.
18 ask the judge for everything that you
19 Paragraph 1, your wife gets 20/20/20
02:03 20 1ifetime TRICARE medica1 coverage, correct?
21 A. That's correct.
1itt1e
22 Q. And by the way, you know, we've heard a
the A1bert
23 bit of characterization of you not winning
24 or being terrifica11y generous to wait
Schweitzer Award
get divorced she
02:04 25 two years to make sure that when you
VIRGINIA BUNTING, CSR
(512) 940-6597
25
gets this, and certain1y that was your mediated
sett1ement agreement?
MR. HINDERA: we'T1 object to the sidebar,
\lO)O'|-¥>OOl\3
Your Honor.
02:04 THE COURT: Sustained.
0. (By Mr. Rippy) You cou1d have retired, cou1d
you not?
A. I cou1d have retired before she --
MR. HINDERA: we‘11 object to relevance,
02 :04 Your Honor.
MR. RIPPY: agree, Your Honor. His
11 _I
12 ATbert Schweitzer menia1 state, that's not my
13 characterization.
14 THE COURT: I'm going to overru1e that
02:04 15 objection, because, Counse1, your -— because of the
in that
16 a1imony issue. And I'm going to Tet him testify
17 regard because of the equity invo1ved. Your objection
18 in that regard on re1evance is overru1ed.
19 MR. HINDERA: Thank you, Your Honor.
02:04 20 Q. (By Mr. Rippy) Okay. So Major Peck, you cou1d
21 have retired, couldn't you?
22 A. I cou1d have.
23 0. And you sti1T wou1d have gotten your pension,
24 but she wou1dn't have gotten the 20/20/20 Tifetime
02:04 25 TRICARE?
VIRGINIA BUNTING, CSR
(512) 940-6597
26
A. She wou1d have gotten ha1f my pension but not
the medica1.
Q. we11, 1et's exp1ore that, too. She wou1dn't
have gotten more than ha1f your pension because the
Q01-l>Os>l\1
02:05 mi1itary simp1y won't a11ow that regard1ess of what a
state order says. Isn't that a fair statement?
A. That's a fair statement.
Q. A11 right. The bottom of Page 1 of 3, Proposed
Disposition of Other Issues, the Survivor Benefit P1an
02:05 designation, that's what you're proposing to do, pay
11 ha1f of that; is that right?
12 A. If she wants.
13 0 You're wi11ing to pay ha1f?
14 A. I'm wi11ing to pay ha1f.
02:05 15 Q A11 right. Top of Page 2, the house proceeds
16 wi11 not be sp1it 50/50. You're wi11ing to sp1it them
17 60/40 in your wife's favor; isn't that right? 1
18 A. That's correct.
19 Q. You want to be awarded the Hyndai and her the
02:05 20 Nissan; is that right?
21 A. That's correct.
22 Q. No. 5 on Page 2, the Morgan Stan1ey account,
23 that's the account that was set up by your 1ate father's
A
24 wi11; is that right?
02:05 25 A. That's correct.
VIRGINIA BUNTING. CSR
(512) 940-6597
27
Q. And your share of that was not 65,000 as that
says, it was 69; is that your testimony?
A. That's my testimony.
\lC'>U‘l-l>(a3|\)
Q. The other accounts, though, it says sp1it
02:06 50/50. You're wi11ing to spiit a11 other accounts 60/40
in your wife's favor except the one that you're
admitting is her separate property, right?
A. That's correct. She can have that. That's
hers.
02:06 0. That takes us through numera1 7 there on
11 Page 2. Frequent fTier mi1es, again, you're saying it's
12 sp1it even1y in this proposed disposition, but you're
13 wi11ing to give her a11 of the remaining frequent f1ier
14 mi1es, right?
02:06 15 A. It's over 150, so it's more than haif of what
16 it was when we sp1it. So yes.
17 0. And the reason it's not 300,000 anymore is you
18 f1ew to London for that aforementioned MBA program,
19 right?
02:06 20 A. And a coup1e of other trips, yes.
21 0. Credit card debt, you're wi1Ting to pay a11
22 debt in your name; is that right?
23 A. That's correct.
24 Q. Now, bottom of Page 2, with regard to a1imony,
02:06 25 your proposa1 is exactiy what's written here; is that
VIRGINIA BUNTING, CSR
(512) 940-6597
28
right? You're wi11ing to get her up to 2,000 a month
regard1ess of whether your retirement 50 percent that
goes to her is 1,000 a month, or 1,500, or 1,700? You
\lO‘)O1-l>~(»)l\)
wi11 make up the difference and make sure she gets 2,000
02:07 a month for five years; is that your testimony?
I
A. Yes, sir.
0. Because you've a1ready done it two years during
the divorce; is that your offer?
A. Yes. And that wi11 a1so pay the fu11 $2,000
02:07 unti1 my retirement in August.
11 Q. Oh, so before -- we11, that's important.
12 Before your retirement in August, even though you're
13 getting zero retirement, you'11 continue to pay her
14 2,000 a month, and you'11 be paying the who1e 2,000 a
02:07 15 month. And that -- but you're wi11ing to do that; is
16 that right?
17 A. Yes, sir.
18 Q. Okay. The persona1 property wi11 be or a1ready
19 has been divided; is that your testimony?
02:07 20 A. The three items Iisted on here is sti11 at the
21 house and my persona] effects and c1othes. I think
22 that's a11. A11 of the stuff that's 1isted on here is
23 sti11 there. Except for I don't -— I had a11 of my
24 schoo1books and papers in the hutch that was moved. I
02:08 25 wou1d 1ike those back. I don't know where they are.
VIRGINIA BUNTING, CSR
(512) 940-6597
29
Q. Okay. It sounds Tike except for schoo1books
and a weight set that she can't possib1y have any
interest in, persona1 property has been divided; is that
\lO§U1-bOJl\)
your testimony?
02:08 A. Yes. And a Persian rug.
Q. The chart, the spreadsheet there on Page 3 of 3
shows that she, being your wife, wouTd get
approximate1y, by that caTcu1ation, 70 percent of the
community marita1 estate. And, in fact, it's worse than
02:08 that, it's more than 70 percent because you're dividing
11 the house and the account 60/40 in her favor, but you're
12 wi11ing to do that, right?
13 A. That's correct.
14 Q. Okay. Last thing, Major Peck. You remember
02:08 15 the motorcyc1ing picture when she sent in Tate, I guess
16 October it was in 2013, a picture of herse1f on a
17 motorcyc1e with somebody she was dating, right?
18 A. Or whoever, yes.
19 Q. And she went on a11eged1y you heard the
02:09 20 testimony about a short motorcyc1e ride?
21 A. Yes.
22 Q. Did she te11 you where she went?
23 A. She said she went to Burnet.
24 Q. Burnet, Texas?
02:09 25 A. Burnet, Texas.
VIRGINIA BUNTING, CSR
(512) 94_0-6597
30
_x
Q. And back.
A. And back.
MR. RIPPY: A11 right. Judge, I wi11 pass
the witness.
02:09 OtO®\lO)O‘I-l>¢A>|\)
CROSS-EXAMINATION
BY MR. HINDERA:
0. Major Peck, I've marked this exhibit as No. 30.
And the second page of that exhibit, do you recognize
that? That's your LES, right?
02:09 A. Yes, LES. I think I provided that to you guys.
Q. Now, the LES that you get, because I'm having
troub1e figuring out where 8304 comes from that's in
your pretria1s, the "BAS" that you get, which is Basic
Army Assistance, right?
02:10 A. I think.
Q. But that's the food and that kind of stuff,
correct?
A. Yes.
0. That a11otment is not taxed, is it?
02:10 A. I don't think so.
Q. Okay. And the "BAH" there is not taxed,
either. In fact, that's for a housing a11owance,
correct?
A. That's for housing, and I don't be1ieve it's
02:10 taxed, either. I think you're right.
VIRGINIA BUNTING, CSR
(512) 940-6597
31
0. Now, are you fami1iar with how you change --
how you equate the BAH and BAS to the civi1ian
equivaient?
\lO3U‘l-l3(:JI\'>
A. No.
02:10 Q. we11, if you take -- if the BAH is not taxed,
then you simp1y divide the marginai tax rate into the
BAH. Have you ever heard of that?
A. No, sir.
MR. HINDERA: Your Honor, I'm going to ask
02:11 that Petitioner's Exhibit 30 be admitted into evidence.
11 And it's the LES, p1us the ca1cu1ations to arrive at the
12 civi1ian equiva1ent.
13 THE COURT: And what's the number on that
14 exhibit, Counse1?
02:11 15 MR. HINDERA: This is No. 30.
16 MR. RIPPY: we11, I guess our objection is
17 ca1cu1ation by whom? I suppose I wou1d -- if there were
18 the producer of this hearsay document here, I wou1d
19 cross-examine him about how do you convert it.
02:11 20 MR. HINDERA: I did it. And I did it
21 according to the 1991 articie by Mark Su11ivan in the
22 Army Times.
23 THE COURT: we11, Counse1, that fa11s
24 within the province of doub1e hearsay.
02:12 25 MR. HINDERA: I understand. I wou1d be
VIRGINIA BUNTING, CSR
(512) 940-6597
32
_\
g1ad to -- _
MR. RIPPY: we11, Judge, it's a document.
I can't cross-examine the document. I can't swear in
Mr. Hindera and cross-examine him and he can't be a fact
02:12 witness. So I'm kind of -- I see what's happening, he's
trying to show that if you make a certain amount of
OOOl\)
money in the mi1itary, it's more if you're a civi1ian,
but man -- Judge, I wou1d cross—examine somebody if they
were arguing do11ars are different for mi1itary peop1e.
02:12 MR.‘HINDERA: we11, in fact, they are,
Your Honor, because --
THE COURT: Before we begin arguing that,
Counse1 --
MR. HINDERA: Pardon?
02:12 THE COURT: Before we begin arguing that,
Counse1, I don't beiieve that there is testimony. And
if you're getting ready to testify, I be1ieve that that
wou1d become -- that wou1d complicate things a bit.
MR. HINDERA: It wou1d. And Tet me just
02:12 introduce the LES.
MR. RIPPY: That's fine.
MR. HINDERA: That was one of the
attachments that we took off of our proposed
disposition, so we have no objection.
02:13 THE COURT: And what's the number on the
VIRGINIA BUMTING, CSR
(512) 940-6597
33
_\
LES?
MR. HINDERA: It is 30, Your Honor.
THE COURT: A11 right.
MR. HINDERA: And I've taken off my
02:13 ca1cu1ations there.
wou1d you agree with me,
OLOOO\lO)U'1-l>0Ol\J
Q. (By Mr. Hindera)
Major --
THE COURT: Ho1d on because I haven't
admitted your exhibit yet.
02:13 _x
MR. HINDERA: I apo1ogize.
.._x
_\
THE COURT: You move the admission of 30;
.—|
I0 is that correct?
._\ OJ MR. HINDERA: Yes, Your Honor.
_\
-A THE COURT: 30 is admitted.
02:13 .1 U1 (Petitioner's Exhibit No. 30 admitted)
_\
O‘)
Q. (By Mr. Hindera) Now, Major Peck, this aI1
.4
\l
began when you asked your wife to move out, correct?
_\
m A. we11, I guess, or when I asked her for a
.—L
(D divorce.
02:13 MO 0. Okay. You negotiated with the therapist, that
l\) _\
you both were seeing, to have her move out of the house
l\) l\J in December of 2011 for two weeks, correct?
l\) (.9 A. I guess.
l\) -5 MR. RIPPY: we11, I guess our objection to
02:14 |\J 01 this is re1evance. I don't want to retry the temporary
VIRGINIA BUNTING, CSR
(512) 940-6597
34
_I
orders, so I'm not sure why who moved out in 2011 is
re1evant to anything.
MR. HINDERA: He asked him about the
temporary. There are no temporary orders other than the
02:14 mediated agreement. I don't want to take up a Tot of
time, but Mr. Rippy characterized it a certain way. He
O(OCO\lO7U1-BOON)
raised the issues.
THE COURT: what issue is that?
MR. HINDERA: Of how generous Mr. Major
02:14 _x
Peck has been throughout this affair.
_\ _\ THE C0URT:V Res ipsa Toquitur. I don't
_.x
|\) particu1ar1y see it as being -- go ahead, Counse1. The
.5 0) objection is overruied.
A -5
what's the number on that exhibit?
02:14 _\ U1 MR. HINDERA: This is No. 31. And I'T1
_; O) make this quick, Your Honor. I've just got these
..x
\l
documents to put in.
Mr. Major Peck, is that the
_; oo Q. ‘(By Mr. Hindera)
_;
(O document that you created?
02:15 N)
O A. Yeah.
I\) _\
Q. And, in fact --
NN MR. HINDERA: Your Honor, we wouid ask that
N 02 No. 31 be admitted into evidence.
N)
A THE COURT: 31 is admitted, I be1ieve. I
02:15 |\) 01 a1ready --
VIRGINIA BUNTING, CSR
(512) 940-6597
35
._L MR. RIPPY: No objection, Judge.
I\) THE COURT: A11 right.
00 (Petitioner's Exhibit No. 31 admitted)
A MR. HINDERA: Do you want to take a Took at
02:15
U‘!
it?
‘
O7 THE COURT: I be1ieve he's seen it.
\I
Q. (By Mr. Hindera) And, in fact, she moved
on out -- you moved -- strike that.
Q She moved out, then, on the 16th of
02:15 ..x
O December, did she not, that weekend?
_\ -‘
A. I assume that's correct. That sounds right.
.._\
I\> Q. Now, she moved out on the 16th of December, and
_\ 00 you had negotiated that dea1 with C1audia Ghio and
_\ JE-
Mr. Boothe -- Jason Boothe, correct?
02:15 _\ U1 A. I remember Jason. I don't remember if C1audia
_\ O7 was there, but I wiT1 say she was. I don't remember
_;
\l
that.
_\ G) 0. Okay. Now, you changed the Tocks on the 27th
..x
(O or the 28th of January, correct?
02:16 l\)
O A. I don't remember the exact date. I did change
|\J .4 the Tocks.
l\) I\) MR. HINDERA: May I approach, Your Honor?
l\) 00 THE COURT: You may.
l\) -I3 Q. (By Mr. Hindera) Sir, Tet me hand you what's a
02:16 N U1 text message between you and your wife.
VIRGINIA BUNTING, CSR
(512) 940-6597
36
_\
A. Okay.
Q. And does that refresh your memory as to whether
you changed the Iocks?
A. This wouid be a Biackberry. I don't have --
02:16 that's not a Biackberry, so I don't know what that is.
This is not a text from you?
OC.\>l\'J
A. Okay.‘
MR. HINDERA: Your Honor, we wou1d ask that
Petitioner's Exhibit 17 be admitted into evidence.
MR. RIPPY: Judge, can I take the witness
on voir dire for a second about this?
02:18 THE WITNESS: I've never seen this before.
MR. RIPPY: we11, that wasn't my question.
VOIR DIRE EXAMINATION
I
BY MR. RIPPY:
Q. My question is: what's the date of that?
02:18 A. This says January 21st of 2012.
MR. RIPPY: Judge, that's the objection.
Two-and-a—ha1f—year-01d marita1 counse1ing records‘
re1evance.
MR. HINDERA: It is reievant, Your Honor,
02:19 because he dea1s with the issue of pain and caregiving
that he was supposed to be doing for my c1ient. The
fact is he knew this -- he knows and knew that this
woman is infirm and is disab1ed, and that's what part of
the counse1ing was about.
02:19 THE COURT: I'm going to overru1e the
VIRGINIA BUNTING, CSR
(512) 940-6597
38
_\
objection. what's your number on that, Counse1or?
MR. HINDERA: 17, Your Honor.
THE COURT: Your objection, Mr. Rippy is
noted. 17 is admitted.
02:19 (Petitioner's Exhibit No. 17 admitted)
—\OU‘l-kO0|\J
CONTINUED CROSS-EXAMINATION
BY MR. HINDERA:
Q. And, sir, wou1d you read that high1ighted
portion there for the Court?
02:19 A. "To better understand pain/caregiver
re1ationships and issues.“
_\_\
_\ l\) 0. In fact, that was one of the issues that you
.3 (A)
had throughout the marriage was Ms. Peck, because of her
._x
A physica1 condition, cou1d not be intimate with you on a
02:20 _; U1 regu1ar basis, cou1d she not?
_\
O‘)
A. I do not ever think that was because of the
_;
N physica1 issues. That was a persona1 choice of hers.
_;
Q 0. Okay. But you wou1d agree, in fact, that was
_\
(O part of the issue was how you were dea1ing with her
02:20 NO physica1 infirmity, as per those notes and other notes
N .4 in there?
l\) l\> A. I guess. I mean, it's -— did we ta1k about her
N 0) issues, sure.
l\) -h
Q. And just so we're c1ear, you agreed she didn't
02:20 N) U‘!
have to work?
VIRGINIA BUNTING, CSR
(512) 940-6597
39
_\
A. I made the --
0. That's what you to1d your attorney?
A. Yes, and I just said that up here. Yes.
MR. HINDERA: Your Honor, I think that's
02:21 aT1 we have for this witness.
O(DG>\lO3U‘I-l>OJ|\J
THE COURT: Very we1T. Anything e1se,
Mr. Rippy?
MR. RIPPY: Just very, very briefiy, Judge.
I'm going show the witness what's going to
02:21 _x
be marked as our Respondent's No. 1, since Court and
_\ .5
Counsei may be wondering why we started with No. 2,
_\
N which is his W-2, just to show the Court the LES that's
_x.
00 now been admitted. That's not what we used to ca1cu1ate
.5
-I3
his month1y income. we used his 2013 W-2, because the
02:21 _\ U1 LES, of course, he didn't make that amount of money
_\ O) every month. And so we're just showing where our number
A \l came from on our proposed disposition.
_\
CO THE COURT: And your objection, Counse1?
_\
(O MR. HINDERA: The numbers there are
02:21 l\)
O mis1eading as we taiked about, Your Honor, because the
l\) ._\
W-2 on1y dea1s with taxab1e income. And the bu1k of his
N l\) income is from -- not the buik, but about 25 percent of
l\) (.0 his income or more is nontaxab1e. Therefore, it doesn't
N) -h
show up in the N42.
02:22 l\) 01 THE COURT: Objection is overru1ed. It's
VIRGINIA BUNTING, CSR
(512) 940-6597
40
admitted.
REDIRECT EXAMINATION
BY MR. RIPPY:
Q Major, what is that?
02:22 A. It's my w-2.
Q. And is that your W-2 for 2013?
A That's correct.
Q. And that's how we ca1cu1ated your net gross
income, divided the Socia1 Security wages there by 12?
02:22 A. Yes, sir.
Q. But the Court has -- you understand, you're
Ieaving earnings that shows you've got a BAH a11owance,
as everybody does basica11y in the miIitary,
right?
A. That's correct.
02:23 MR. RIPPY: Judge, I wou1d offer
Respondent's 1.
MR. HINDERA: No objection, Your Honor.
THE COURT: 1 is admitted.
(Respondent's Exhibit No. 1 admitted)
02:23 MR. RIPPY: No further questions for this
witness.
THE COURT: A11 right. Mr. Hindera, do you
have any additiona1 questions you wish to ask this
witness?
02:23 MR. HINDERA: No, Your Honor.
VIRGINIA BUNTING, CSR
(512) 940-6597
41
_\ THE COURT: You may step down. Your next
witness, Mr. Hindera.
MR. HINDERA: I just have myseTf on
attorney fees.
02:23 THE COURT: You may testify on attorney
fees from a seated position, Counse1.
OtDm\lO'>U'|-PCDIU
MR. HINDERA: Your Honor, the tota1 amount
that Ms. Peck has paid is $39,417. Now, in part -- and
I wou1d 1ike to have this admitted into evidence here.
02:24 ._\
This is No. 32.
..x _L MR. RIPPY: Sure.
_\ l\) MR. HINDERA: I wou1d ask that No. 32 be
_; (.0 admitted, Your Honor.
_\
J5 MR. RIPPY: No objection, Judge.
02:24 _\ U1 MR. HINDERA: And I wouid Tike to pu11
_; 07 out one -- that's the sum total of the bi11s. we issued
_n \l five bi11s with Ms. Peck, but the one that is more
..x G3 re1evant than the others -- and I wou1d Tike to just
._x
E0 give it to the Court as a courtesy is this June 14th,
02:24 |\)
O 2012. Now, it's in this document here.
N _; THE COURT: which I have a1ready admitted.
M l\) MR. HINDERA: Yes.
N) (.0 (Petitioner's Exhibit No. 32 admitted)
--
|\) J?- MR. HINDERA: And that has in it the two
02:25 l\)
U‘!
the new -- at the beginning of this case, we bi11ed
VIRGINIA BUNTING, CSR
(512) 940-6597
42
every time there was a b1owup. So when there was the
b1owup over he changed the Iocks, there was a bunch of
bi11ing that went in. The same with the mediation and
what have you. That bi11 that you have there
02:25 encompasses what was incurred by Ms. Peck in the two
fai1ed attempts to overturn the mediated agreement that
Major Peck entered into, Your Honor;
And no matter how it's characterized by
Mr. Rippy, that's exact1y what it was. The Court can
02:25 read that fi1e. So we wou1d ask for $19,000 in attorney
fees, but rea11y, I think we have a strong and
Tegitimate c1aim for the 4,400 -- for the $4,492 that
Ms. Peck paid in dea1ing with'the attempts to overturn
the agreement he entered into with a mediator.
02:26 So with that, I rest, Your Honor.
MR. RIPPY: No questions for this witness,
Judge.
THE COURT: You rest, Mr. Rippy?v
MR. RIPPY: We rest and c1ose, Judge.
02:26 THE COURT: So both sides c1ose.
A11 right, Tawyers. I don't need any fina1
argument. I be1ieve that what the parties -- what Ms.
Peck has in her possession, she keeps. what Major Peck
has in his possession, he keeps.
02:27 The Court strong1y encourages her to e1ect
VIRGINIA BUNTING, CSR
(512) 940-6597
43
_\
to pay the Survivor Benefit because it is measured by
her Tife, not his, but that's an expense that she shou1d
share with Major Peck. And I be1ieve that was what I
heard him say he was wi11ing to do, which is pretty
02:27 much -- that goes down the Tine with what I do in other
O€O(X)\lO‘.vO'lJ>(:.)l\)
cases.
The house wi11 be so1d. The proceeds wi11
be divided 60 percent to Ms. Peck, 40 percent to
Major Peck.
02:27 ..\
She is driving the Nissan. I wi11 award
_l _l
the Nissan to her. I'm awarding his vehicie to him.
_\
10 I be1ieve that, regard1ess of the
._x 0) ciassification of the property he1d in the Morgan
_\
-h Stan1ey account, I'm awarding it in its entirety to him.
ogma _x
U‘!
Regard1ess of the c1assification of the property
_\ O) contained in her account that she says is her separate
_\
\l
property, I wi11 award entire1y to her. The accounts
_\ oo not mentioned are divided 60/40, 60 to Ms. Peck, 40 to
.1
(0 Major Peck.
02:28 IO 0 I be1ieve that there is a concession here
N _\
on the frequent f1ier mi1es, which he is saying go
|\) |\) entireiy to her as they -- of those that current1y exist
N) 60
at present.
l\) -5 Each party wi11 pay the credit card debt in
02:28 N) (TI their name. Major Peck agreeing to pay that portion
VIRGINIA BUNTING, CSR
(512) 940-6597
44
_\
that he has borrowed to make the house payment.
Now, I do not find that Mrs. Peck is
disab1ed. I do find that she is on a very distressing
combination of medicine. I do be1ieve that that may be
02:29 OCO®\lO3U‘l-l>(aJl\)
a factor in her employment possibi1ities as they
currentIy exist.’ And it might do her we11 to confer
with one physician about her issues, because it's the
Court's experience with this particu1ar mixture of
medicine causing prob1ems in cases simi1ar1y situated to
02:29 ._;
this one.
.1 _\
So for two years from today's date, at
._x l\) which time I am granting their divorce, Major Peck wi11
_x C0 pay her a tota1 of $2,500 per month. For three years,
._x -I3
he wi11 pay her a tota1 of $2,000. At the termination
02:30 _\ 01 of five years, his a1imony ob1igation ceases.
..x
03 I be1ieve that he mentioned a weight set
_\ \l
and his books and persona1 items. You may ta1k to
.5 oo Mr. Rippy about your persona1 property that you may
_\
(O have.
02:30 |\'>
O Mr. Rippy, I need a c1arification of those
l\J _;
things that Major Peck is asking to be returned to him
N) N)
that are of a persona1 nature to him. Certainiy, his
l\) (.0 weight set, certain1y his books, certain1y his persona1
N -l>
papers a11 need to be returned to him. Are there
02:30 l\) 01 additiona1 things that I missed?
VIRGINIA BUNTING, CSR
(512) 940-6597
45
_\
MR. RIPPY: Judge, the short answer is no.
The Tong answer is on her rather detai1ed Tist. And in
this regard, we appreciate itl The Persian rug and the
headboard, which I think are fami1y heir1ooms of
02:31 Major Peck's --
THE COURT: Those need to be returned to
Of.O®\l(DO'l-b0Jl\)
him.
MR. RIPPY: I think she agreed to that in
her Tist, but he wanted the Court to be aware of that.
02:31 _\
THE COURT: Okay. Those things that
_\ _\
be1onged to him before he was married to her need to be
._x
N) returned to him.
_\
0.7
MR. HINDERA: The Persian rug and what
...\
-h e1se?
02:31 _\ U1 MR. RIPPY: And headboard. And I beiieve
_\
CD she said in her Tist that he cou1d have them, but he
_\ \l
wanted the Court to be made aware of it.
.3
W THE COURT: Now, I don't reca11 the kind of
_1
(O car she's driving -- or he's driving, but I'm giving
02:31 NO that to him.
I'm not awarding any attorneys’ fees.
.
N, _\
l\) l\) Gent1emen, anything I missed?
IV (.0 Thank you.
I0 A MR. HINDERA: Thank you, Your Honor.
l\) 01 (Proceedings concluded.)
VIRGINIA BUNTING. CSR
(512) 940-6597
46
_\ REPORTER'S CERTIFICATE
STATE OF TEXAS *
COUNTY OF WILLIAMSON *
OQOGJNIGOI-l>0~>l\3
I, Virginia L. Bunting, Deputy Court Reporter in
and for the County Court at Law No. 4 of wi11iamson
County, State of Texas, do hereby certify that the above
and foregoing contains a true’and correct transcription
of a11 portions of evidence and other proceedings
requested by counse1 for the parties in the above-sty1ed
_x
and numbered cause, a11 of which occurred in open court
or in chambers and were reported by me.
further certify that this Reporter's Record tru1y
_x _\
I
_\ K) and correct1y ref1ects the exhibits, if any, offered by
the respective parties.
(.0
WITNESS MY OFFICIAL HAND on this the 18th day of
_\
_\
-h September, 2014.
U1
/s/ Virqinia L. Buntinq
_\
_\ O) Virginia L. Bunting, CSR
Texas CSR No. 5704
..x ‘I -
Expiration Date: 12-31-15
P.O. Box 405
_\
W Liberty Hi1T, Texas 78642
(512) 940-6597
_;
(D
l\)
O
|\) ...\
l\) l\)
|\) (A)
l\.)
-5
[0 O1
VIRGINIA BUNTING, CSR
(512) 940-6597
Exhibit C
REPORTER'S RECORD
VOLUME 9 OF 9 VOLUMES
_\
CAUSE NO. 13-0926-FC4
COURT OF APPEALS NO. O3-14-00440-CV
IN THE MATTER OF IN THE DISTRICT COURT
O¢.OO3\lO3U'1-h<.Ol\')
THE MARRIAGE OF
NANCY MARIE PECK *
WILLIAMSON COUNTY, TEXAS
AND
WAYNE CODY PECK COUNTY COURT AT LAW NO. 4
_\
...\
._\
._\
|\) EXHIBITS
.A 03
_x
-D
_A
U1
_x
G
_.\ \l
..a
W
_\
<0
I\) O
N) _\
l\)
N
[U U)
l\) -l>
IV 01
RESPONDENT'S EXHIBITS
DESCRIPTION OFFERED ADMITTED 32
A. 3 VillageOaks Condominiums,
Fairway MA
‘
_
s 6o,ooo.o.o
Brockton, $ 50,000.00
Beach
3, Pebble
Lots 23-24, Block caunty, TX 65,000.00
B.
Subdivision, Bandcra $ 65,000.00 5
Estates
Los 7Tea and Green
8,
Charlotte County, Florida 300-00
c. s.
800.00
$
125,gno_oo
'-V0’!-‘AL s 125,300.00 5
2.
STOCKS AND BONDS
~
A. Shearson Lehman
Brothers
Account 6,921.04 $ 55,931.04
Account 2 ’ 4 2 4- . 99 .
$ ?:zi$[n’-I99-1% AND samu-
OF TEXF5; UQUNTV
%1[AdLE wlfu-.h:h‘s ..u-
Liquid A
9 numenl In
B -
lifiiyfus DL-mt _
nf_§_pagns,':s ahxI',tlrt1E;ndcqxr.
»
AC3 figs and at muord
my
~,
in affine;
Hat» '1 er,
1
:~=.
~»'x.< .- .
{W
§
.+‘~'*"74}\
2” ATTEST1-‘Q~
mmnv wamea, mum r.Lza:<
i BRNDEF3 COUNTY. TEYA3
av A
8307968310 p3
Mar1a14os36a Shoe Biz
.1. 039.919:
'$ 11,283.83 S 11,283.83
C. Fall River Industries, Inc.
No. N613/25 Shares -0- $ -0-
TOTAL $ 70,639.86 $ 70,639.36
3.
MORTGAGES AND NOTES NONE NONE
4.
CHECKING AND SAVINGS ACCOUNTS
A. Broadway Nat
Account No.
Regular Chec 1,191.21 $ 1,191.21
$
Broadway Nati
Account No. 0
Personal Savin 298.77
5 298.77 S
Broadway Nat
Account No.
Money Market 16,393.36 S 16,393.36
$
Broadway al Bank
Account 0
IRA 11,071.19
$
Harlinqen National Ba
Checking Account No. .79 $ 2,087.79
$
USAA Corner
Account No.
IRA 13,950.10
s 13,960.10 $
USAA
Account No;
‘
High Yield 23,349.35 $
$ —23cEa°7{§1?n'ff}3'
4:
~
'?‘hr.sé15ur«»x.-,
USAA
.
' '
géb
n n 'u|nunl lnwi1' ll1i:t:'r‘ifi
°L..mwM mawuh
~
Account No. }':h: and ui ravoré
m urn; idfibé.
~
Shoe Biz 8307968310 p_4
Mar 18 1408:36a '
. VUL U-JU PAGE 533
Money Market 3,171.42 $ 3,171.42
$
I. SAFE
Account No.39372 10,978.27
$ 10,973.27 $
TOTAL $ 71,523.20 S 60,452.00
5.
EMPLOYMENT BENEFITS NONE
NONE
6.
MISCELLANEOUS PROPERTY
A. 1989 Ford Taurus
VI #1FABP5243KA264o99 5,500.00 $ 5,500.00,
- $
Household furnishings,
tools, equipment,
miscellaneous per-
sonal property 7,500.00
$ 7,500.90 U}
TOTAL $ 13,000.00 -01»
13,ooo.oo
7 .
LIFE INSURANCE
A. Jefferson Pilot
Pol. No. PL1278252,
Insured: Milford V. Peck 100,000.00
100,000. 00 S
Jefferson Pilot
Pol No. PLl282272
Insured: Wayne Cody Peck -0-
$ 5,387.74 $
Jefferson Pilot
P01. No. PL277437
Insured: Robin Peck -0-
$ 5,754.36 $
TOTAL S 111, 152 . 10 $ 100,000.00
S 125,800.00 125,800.00
~
REAL PROPERTY 70,639.86
$
S
STOCKS AND BONDS $
CHECKING/SAVINGS S 71, 523 .20 $
MISCELLANEOUS PROPERTY $ 13 , O00 ()0
. $
LIFE INSURANCE $ 111,152.10 $
~~
file and of sacm!
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3 in my office.
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Mar1814 08:37:-:1 Shoe Biz 8307968310, p 5
{us}. U3§P:uE4Efl
GROSS ESTATE $ 392,115.15 $ 359,89l.86
,L'ESS, INDEBTEDNESS <$ 53,223.97 $ 53,223.97>
Realty World. -Gold Cape Realty
'
‘
said. indebtedness secured by
real property hereinabove
described in ILA above
NET ESTATE $ 338,891.19 $316,667.89
LIST OF CLAIMS
the Estate other than
There are no claims due or owing to Appraisement.
those shown on the foregoing Inventory and
The foregoing Inventory, Appraisement, and List of Claims
should be approved and ordered of record.
Respectfully submitted,
<’n=a!; «Lu. :1: “fi=——-' ‘
—--"’““”’ BY: Attorney for he
K. I-Lschneider
P.O. Box 1435
’
Eandera, Texas 78003
512-796-8400
CEl‘1Til-'iEDTRi_.? ,
STATE UF TE‘
The dncumun: ta ta:
of_._5_,L'age‘.
Mar 1§ 1408:37a Shoe Biz 8307968810 p.6
STATE OF TEXAS
KNOW ALL MEN BY THESE PRESENTS
,
'
:,
coun-11::
,
or BANDERA
I, PEGGY ASEMORE, having been duly sworn, hereby state on oath
that the foregoing Inventory, Appraisement, and List of Claims is
a true and complete statement of all the property and claims of the
Estate that have come to my knowledge.
«am, 42
PEG Y snonn,
Independent Executrix
SUBSCRIBED AND SWOR_N TO BEFORE ME by PEGGY IXSHMORE on tha 15.53
day Of Segtember 1992, to certify which witness my hand and,
,
seal of office. _
.
FIL D‘
2%
r
I
'0mIIly Clerk 8and=
~
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_n Count;/,Taxu
I
The foregoing Inventory, Appraisement, and List of Claims of
. 42); ~
the above Estate having been filed and presented and the Court
having considered and examined the same and being satisfied that
it should be approved and there having been no objections made
thereto, it is in all respects APPROVED and ORDERED entered of
record.
- 4
%‘ ‘day
SIGNED on the of .
".3x1aȢ:.;A/ , 1992..
.57
£4 6 -
4472/
Judg Presidi,
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ST£1IE‘JFTEK.~‘i5,EI]UE;
The dnuurnenl to which ilxis can
of
file um:
In
5 pages. is ML um: am.
:1!
my offics.
record
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at
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_\
REPORTER'S CERTIFICATE
STATE OF TEXAS *
COUNTY OF WILLIAMSON *
I, Virginia L. Bunting, Deputy 0fficia1 Court
Reporter in and for the County Court At Law No. 4,
wi11iamson County, State of Texas, do hereby certify
that the above and foregoing contains a true and correct
transcription of a11 portions of evidence and other
OtOO0\lO‘)U'l-h0)l\)
proceedings requested in writing by counse1 for the
parties to be inc1uded in this vo1ume of the Reporter's
Record in the above-sty1ed and numbered cause, a11 of
which occurred in open court or in chambers and were
reported by me.
I further certify that this Reporter's Record of
the proceedings tru1y and correctiy ref1ects the
exhibits, if any, offered by the respective parties.
.._x
_\ _x
I further certify that the tota1 cost for the
_n |\) preparation of this Reporter's Record is $1393.50 and
was paid by appe11ee.
(A)
WITNESS MY OFFICIAL HAND on this the 22nd day of
_\
_\
-5 September, 2014.’
_x 01
/s/Virainia L. Buntinq
_\ O3 Virginia L. Bunting, CSR
Texas CSR No. 5704
_\
\l Expiration Date: 12-31-13
P.0. Box 405
_x
(D Liberty Hi11, Texas 78642
(512) 940-6597
_\
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