Preview
Electronically Filed
6/23/2015 2:50:17 PM
Lois Rogers, Smith County District Clerk
Reviewed By: J ennifer Black
NOTICE: THIS DOCUMENT
CONTAINS SENSITIVE DATA
NO. 15-0486-D
IN THE MATTER OF IN THE DISTRICT COURT
THE MARRIAGE OF
ELOISA MIRANDA
AND 321ST JUDICIAL DISTRICT
JOSE LUIS MIRANDA
AND IN THE INTEREST OF
J.L.M. AND J.L.M., CHILDREN SMITH COUNTY, TEXAS
FIRST AMENDED COUNTER-PETITION FOR DIVORCE
1 Discovery Level
Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas
Rules of Civil Procedure.
2. Objection to Assignment of Case to Associate Judge
Counter-Petitioner objects to the assignment of this matter to an associate judge for a trial
on the merits or presiding at a jury trial.
3 Parties
This amended suit is brought by JOSE LUIS MIRANDA, Counter-Petitioner. The last
three numbers of JOSE LUIS MIRANDA's driver's license number are ***-**-*898, The last
three numbers of JOSE LUIS MIRANDA's Social Security number are *****408
ELOISA MIRANDA is Counter-Respondent.
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page
4 Domicile
Counter-Petitioner has been a domiciliary of Texas for the preceding six-month period
and a resident of this county for the preceding ninety-day period.
5 Service
Service of this document may be had in accordance with Rule 21a, Texas Rules of Civil
Procedure, by serving Counter-Respondent's attorney of record, Michael Jarrett, via e-file.
6. Protective Order Statement
No protective order under title 4 of the Texas Family Code is in effect, and no application
for a protective order is pending with regard to the parties to this suit.
7. Dates of Marriage and Separation
The parties were married on or about June 10, 1994 and ceased to live together as
husband and wife on or about February 20 2015.
8 Grounds for Divorce
The marriage has become insupportable because of discord or conflict of personalities
between Counter-Petitioner and Counter-Respondent that destroys the legitimate ends of the
marriage relationship and prevents any reasonable expectation of reconciliation.
Counter-Petitioner reserves the right to plead fault grounds at a later date.
9 Children of the Marriage
Counter-Petitioner and Counter-Respondent are parents of the following children of this
marriage who are not under the continuing jurisdiction of any other court:
Name: JIMMY LUIS MIRANDA
Sex: Male
Birth date: August 20, 2003
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 2
Name: JARED LUIS MIRANDA
Sex: Male
Birth date: July 19, 2007
There are no court-ordered conservatorships, court-ordered guardianships, or other court-
ordered relationships affecting the children the subject of this suit.
Information required by section 154.181(b) of the Texas Family Code is provided as
follows: The children are currently covered by health insurance through United Health care, Plan
#911-87726-04, Group #744260, through Wife’s employment.
No property of consequence is owned or possessed by the children the subject of this suit.
Counter-Petitioner and Counter-Respondent, on final hearing, should be appointed joint
managing conservators, with all the rights and duties of a parent conservator.
The residence of the children should be restricted to Smith County, Texas,
10. Request for Declaratory Judgment and Division of Community Property
Counter-Petitioner requests the Court to judicially declare the following:
10.1. The real property residentially described as 2923 Grand, Tyler, Texas, and legally
described as “Woldert HTS No. 3 RD LT 6 BL 772, should be declared as
community property under the sole management and control of ELOISA
MIRANDA; and
10.2. ‘The real property residentially described as 830 W. 31", Tyler, Texas, and legally
described as “Woldert HTS No. 3 RD LT 6 BL 772 [Same as 10.1 above], should
be declared as community property under the sole management and control of
ELOISA MIRANDA.
Additionally, in the alternative, the Warranty Deeds dated January 5, 2009,
pertaining to 2923 Grand, Tyler, Texas and 830 W. 31%, Tyler, Texas, should be
set aside because of an incorrect legal description and therefore in its entirety the
deeds fail to convey title
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page3
Additionally, or in the alternative, the Warranty Deeds dated January 5, 2009,
purporting to convey property at 830 W. 31", Tyler, Texas and 2923 Grand,
Tyler, Texas, should be set aside because there was no consideration given or
exchanged in the deeds and both deeds recite “for good consideration, ...”
Further, additionally, or in the alternative, and in the event the Court does not grant
declaratory judgment finding said real properties to be community property under the sole
management and control of ELOISA MIRANDA, then the Court should find that one-half of the
title to both of said properties is community property under the sole management and control of
ELOISA MIRANDA.
10.3 JOSE MIRANDA requests the Court to judicially declare that the real estate lien
note payable to JOSE LUIS MIRANDA and ELOISA MIRANDA secured by a
lien against 1445 Montgomery, ‘Tyler, Texas, is the community property of the
parties or, alternatively, is jointly owned separate property of the parties.
Once the Court has by declaratory judgment identified the characterization of the specific
properties and real estate lien note identified above, the Court should divide the community
estate of the parties in a manner the Court deems just and right, as provided by law.
11. Separate Property
Counter-Petitioner owns certain separate property that is not part of the community estate
of the parties, and Counter-Petitioner requests the Court to confirm that separate property as
Counter-Petitioner's separate property and estate.
12. Reimbursement
Counter-Petitioner requests the Court to reimburse the community estate for funds or
assets expended by the community estate for the benefit of Counter-Respondent’s separate
estate, if any. Those expenditures resulted in a direct benefit to Counter-Respondent’s separate
estate, if any. The community estate has not been adequately compensated for or benefitted
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 4
from the expenditure of those funds or assets, and the failure by the court to allow
reimbursement to the community estate will result in an unjust enrichment to Counter-
Respondent’s separate estate, if any, at the expense of the community estate.
Counter-Petitioner requests the Court to reimburse the community estate for funds or
assets expended by the community estate for payment of unsecured liabilities of Counter-
Respondents separate estate, if any.
The community estate has expended funds or assets to make capital improvements on
property claimed by Counter-Respondent as separate property, giving rise to a claim for
reimbursement in favor of the community estate and against Counter-Respondent’s separate
estate, if any.
13. Request for Temporary Orders and Injunction
Counter-Petitioner requests the Court, after notice and hearing, to dispense with the
issuance of a bond, to make temporary orders and issue any appropriate temporary injunctions
for the preservation of the property and protection of the parties and for the safety and welfare of
the children of the marriage as deemed necessary and equitable. Counter-Petitioner requests that
the Court enjoin Counter-Respondent from the following:
1 Communicating with Counter-Petitioner in person, by telephone, or in writing in
vulgar, profane, obscene, or indecent language or in a coarse or offensive manner
Threatening Counter-Petitioner in person, by telephone, or in writing to take
unlawful action against any person.
Placing one or more telephone calls, anonymously, at any unreasonable hour, in
an offensive and repetitious manner, or without a legitimate purpose of
communication.
Cause No. 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 5
Causing bodily injury to Counter-Petitioner or to a child of either party.
Threatening Counter-Petitioner or a child of either party with imminent bodily
injury.
Destroying, removing, concealing, encumbering, transferring, or otherwise
harming or reducing the value of the property of one or both of the parties.
Falsifying any writing or record relating to the property of either party.
Misrepresenting or refusing to disclose to Counter-Petitioner or to the Court, on
proper request, the existence, amount, or location of any property of one or both
of the parties.
Damaging or destroying the tangible property of one or both of the parties,
including any document that represents or embodies anything of value.
10 Tampering with the tangible property of one or both of the parties, including any
document that represents or embodies anything of value, and causing pecuniary
loss to Counter-Petitioner.
11 Selling, transferring, assigning, mortgaging, encumbering, or in any other manner
alienating any of the property of Counter-Petitioner or Counter-Respondent,
whether personalty or realty, and whether separate or community, except as
specifically authorized by order of this Court.
12 Incurring any indebtedness, other than legal expenses in connection with this suit,
except as specifically authorized by order of this Court.
13 Making withdrawals from any checking or savings account in any financial
institution for any purpose, except as specifically authorized by order of this
Court.
14 Spending any sum of cash in Counter-Respondent's possession or subject to
Counter-Respondent's control for any purpose, except as specifically authorized
by order of this Court.
15 Withdrawing or borrowing in any manner for any purpose from any retirement,
profit-sharing, pension, death, or other employee benefit plan or employee
savings plan or from any individual retirement account or Keogh account, except
as specifically authorized by order of this Court.
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 6
16 Entering any safe-deposit box in the name of or subject to the control of Counter-
Petitioner or Counter-Respondent, whether individually or jointly with others.
17. Withdrawing or borrowing in any manner all or any part of the cash surrender
value of life insurance policies on the life of Counter-Petitioner or Counter-
Respondent, except as specifically authorized by order of this Court.
18 Changing or in any manner altering the beneficiary designation on any life
insurance on the life of Counter-Petitioner or Counter-Respondent or the parties’
children.
19, Canceling, altering, failing to renew or pay premiums, or in any manner affecting
the present level of coverage of any life, casualty, automobile, or health insurance
policies insuring the parties' property or persons, including the parties' children,
20. Opening or diverting mail addressed to Counter-Petitioner.
21 Signing or endorsing Counter-Petitioner's name on any negotiable instrument,
check, or drafi, such as tax refunds, insurance payments, and dividends, or
attempting to negotiate any negotiable instrument payable to Counter-Petitioner
without the personal signature of Counter-Petitioner.
22 Taking any action to terminate or limit credit or charge cards in the name of
Counter-Petitioner.
23 Discontinuing or reducing the withholding for federal income taxes on Counter-
Respondent's wages or salary while this case is pending.
24 Destroying, disposing of, or altering any financial records of the parties, including
but not limited to records from financial institutions (including canceled checks
and deposit slips), all records of credit purchases or cash advances, tax returns,
and financial statements.
25 Destroying, disposing of, or altering any e-mail or other electronic data relevant
to the subject matters of this case, whether stored on a hard drive or on a diskette
or other electronic storage device.
26 Terminating or in any manner affecting the service of water, electricity, gas,
telephone, cable television, or other contractual services, such as security, pest
control, landscaping, or yard maintenance, at 996 Montgomery Gardens, Tyler,
Texas 75708 or in any manner attempting to withdraw any deposits for service in
connection with those services.
‘Cause No. 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 7
27. Excluding Counter-Petitioner from the use and enjoyment of the workshop
located on the marital residence located at 996 Montgomery Gardens, Tyler,
Texas 75708.
28 Entering, operating, or exercising control over the 2013 Dodge Wrangler Jeep in
the possession of Counter-Petitioner.
29 Disturbing the peace of the children or of another party.
30 Withdrawing the children from enrollment in the school or day-care facility
where the children are presently enrolled.
31 Hiding or secreting the children from Counter-Petitioner.
32. Making disparaging remarks regarding Counter-Petitioner or Counter-Petitioner's
family in the presence or within the hearing of the children.
33 Consuming alcohol within the 8 hours before or during the period of possession
of or access to the children.
34, Permitting an unrelated adult with whom Counter-Respondent has an intimate or
dating relationship to remain in the same residence with the children between the
hours of 10:00 P.M. and 8:00 A.M.
Counter-Petitioner requests that Counter-Respondent be authorized only as follows:
1 To make expenditures and incur indebtedness for reasonable and necessary living
expenses for food, clothing, shelter, transportation, and medical care.
To make expenditures and incur indebtedness for reasonable attorney's fees and
expenses in connection with this suit.
To make withdrawals from accounts in financial institutions only for the purposes
authorized by the Court's order.
To engage in acts reasonable and necessary to conduct Counter-Respondent's
usual business and occupation.
14, Standing Temporary Restraining Order
On February 4, 1999, the courts of Smith County, Texas, issued a Standing Temporary
Restraining Order based upon the courts’ opinion that all parties to original divorce proceedings
Cause No. 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 8
should be subject to a restraining order from the date of institution of suit or service thereof.
Attached hereto as EXHIBIT A is a true and correct copy of the Standing Temporary Restraining
Order of the Courts, which is operative and in effect against Petitioner and Respondent upon
filing of this petition.
15. Request for Temporary Orders Concerning Use of Property
Counter-Petitioner requests the Court, after notice and hearing, for the preservation of the
property and protection of the parties, to make temporary orders and issue any appropriate
temporary injunctions respecting the temporary use of the parties’ property as deemed necessary
and equitable, including but not limited to the following:
1 Awarding Counter-Petitioner exclusive use and control of the 2013 Dodge
Wrangler Jeep and enjoining Counter-Respondent from entering, operating, or
exercising control over it.
Awarding Counter-Petitioner the exclusive use of the following property and
enjoining Counter-Respondent from exercising possession or control of any of
this property: The work shop located on the marital residence at 996
Montgomery Gardens, Tyler, Texas 75708.
16. Request for Temporary Orders Regarding Children
Counter-Petitioner requests the Court, after notice and hearing, to dispense with the
necessity of a bond and to make temporary orders and issue any appropriate temporary
injunctions for the safety and welfare of the children of the marriage as deemed necessary and
equitable, including but not limited to the following:
1 Appointing Counter-Petitioner and Counter-Respondent temporary joint
managing conservators.
Ordering Counter-Petitioner to pay child support, health insurance premiums for
coverage on the children, and 50 percent of the children's uninsured medical
expenses while this case is pending.
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 9
3 Restricting the residence of the children to Smith County, Texas.
17. Request for Interim Attorney's Fees and Temporary Support
Counter-Petitioner requests the Court, after notice and hearing, for the preservation of the
property and protection of the parties, to make temporary orders and issue any appropriate
temporary injunctions regarding attorney's fees and support as deemed necessary and equitable,
including but not limited to the following:
1 Counter-Petitioner requests that Counter-Respondent be ordered to pay
reasonable interim attorney's fees and expenses, including but not limited to fees
for appraisals, accountants, actuaries, and so forth. Counter-Petitioner is not in
control of sufficient community assets to pay attorney's fees and anticipated
expenses,
18. Request for Temporary Orders for Discovery and Ancillary Relief
Counter-Petitioner requests the Court, after notice and hearing, for the preservation of the
property and protection of the parties, to make temporary orders for discovery and ancillary
relief as deemed necessary and equitable, including but not limited to the following:
1 Ordering Counter-Respondent to provide a sworn inventory and appraisement of
all the separate and community property owned or claimed by the parties and all
debts and liabilities owed by the parties substantially in the form and detail
prescribed by the Texas Family Law Practice Manual (3d ed.), form 7-1,
Ordering Counter-Respondent to execute all necessary releases required by
Counter-Petitioner to obtain any discovery allowed by the Texas Rules of Civil
Procedure.
Ordering Counter-Respondent to execute all necessary releases pursuant to the
Health Insurance Portability and Accountability Act (HIPAA) and 45 CFR.
section 164.508 to permit Counter-Petitioner to obtain health-care information
regarding the children,
Ordering Counter-Respondent to execute for all health-care providers of the
children an authorization for disclosure of protected health information to
Counter-Petitioner pursuant to the Health Insurance Portability and
Accountability Act (HIPAA) and 45 C.F,R. section 164.508.
Cause No. 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 10
Ordering Counter-Respondent to designate Counter-Petitioner as a person to
whom protected health information regarding the children may be disclosed
whenever Counter-Respondent executes an authorization for disclosure of
protected health information pursuant to the Health Insurance Portability and
Accountability Act (HIPAA) and 45 C.F.R. section 164.508.
Ordering a pretrial conference to simplify the issues in this case and determine the
stipulations of the parties and for any other matters the Court deems appropriate.
19. Attorney's Fees, Expenses, Costs, and Interest
It was necessary for Counter-Petitioner to secure the services of SAMUEL M. GEORGE,
a licensed attorney, to prepare and prosecute this suit. To effect an equitable division of the
estate of the parties and as a part of the division, and for services rendered in connection with
conservatorship and support of the children, judgment for attorney's fees, expenses, and costs
through trial and appeal should be granted against Counter-Respondent and in favor of Counter-
Petitioner for the use and benefit of Counter-Petitioner's attorney and be ordered paid directly to
Counter-Petitioner's attorney, who may enforce the judgment in the attorney's own name,
Counter-Petitioner requests postjudgment interest as allowed by law.
20. Prayer
Counter-Petitioner prays that citation and notice issue as required by law and that the
Court grant a divorce and all other relief requested in this counter-petition.
Counter-Petitioner prays that the Court, after notice and hearing, grant a temporary
injunction enjoining Counter-Respondent, in conformity with the allegations of this counter-
petition, from the acts set forth above while this case is pending.
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 1
Counter-Petitioner prays for attorney's fees, expenses, costs, and interest as requested
above
Counter-Petitioner prays for general relief.
Respectfully submitted.
Samuel George, Attorney at Law
400 Troup Road
Tyler, TX 75701
Tel: (903) 595-6000
Fax: (903) 595-6066
mI
SAMUEL M, GEORGE
State Bar No. 07806700
nicnat@suddenlinkmail.com
Attorney for Counter-Petitioner
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on June 23 2015
PY)
SAMUEL M. GEORGE
Attorney for Counter OF ions
Cause No, 15-0486-D; ITMOTMO Miranda
First Amended Counter-Petition for Divorce
Page 12
FILED
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INTHE SS FEB- AK ID: 5k
321ST JUDICIAL DISTRICT COURT,
COUNTY COURT AT LAW HIT COURT, TEXAS
AND
COUNTY COURT AT LAW NUMBER. TWO, Re
Leet
SMITH COUNTY, TEXAS
STANDING TEMPORARY RESTRAINING ORDER
On. the \&. day of _Fa\y _ 1999. came on to be considered the matter of
issuance of temporary orders 2s provided by the Local Rules of these Courts (in supplement to
the Texas Rules of Civil Procedures), effective 199 sod
the Courts being of the opinion that all parties to original divoree proceedings in the 32] st
Judicial District Court, County Court at Law, end County Court at Lew Number Two of Smith
County, Teought xa to besubject
s, to a restraining order from the date of institution of suit or
service thereof and it appearinto
g the said Courts appropriate to enter a STANDING
TEMPORARY RESTRAINING ORDER and the Court does hereby enter this order which is
henceforth to be effective with respect to all parties to original divores procesdines ivi
actual or constructive notics thereof, and cach third party to original divorce proceedings,
end IT
IS THEREFORE ORDERED that Petitioner, Respondent, and all third parties to safd
proceedings ARE HEREBY RESTRAINED AND ENJOINED FROM:
l Removing any minor child of the parties to a location beyond the
jurisdiction
of this Court unless authorized by this Court.
Consuming any illegal controlled substance (As that term is
defined in the Texas
Controlled Substance Act), , 12 hours prior to and during any period of
possession
of the child(ren),
aw
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3 Engg ging in any physical contact witha on-withthe intent torece
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molestation, or harassment to the other spouse or the child
(or an: y of the children)
or any family member in possession of the child(ren)
to which family member the
parents relinquished possession of the child(ren) or acqui
esced in said family
member's possession of the child(ren) for at least six
(6) mont ths immediately
preceding the filing of the divorce petition.
ADDENDUM |
swheb ib ly
Making any derogatory or disparaging remarks against the other party to the
child(ren) or within the child(ren)'s hearing range or presence nor shall either
Party allow the child(ren) to be in the presence of anyone making disparaging or
derogetory remarks against the other party or the child(ren),
Selling, encumbering,.contracting to sell, damaging, destroying, iati
or otherwise disposing of or removing from the jurisdiction of this Court any
of the property, including monies on account in any financial institution, which
belong to the parties, except in the ordinary course of business or to make
expenditures and incur indebtedness for reasonable attorney's fees, medical care,
and for reasonable and necess
livingary
expenses for food, clothing, shelter, and
:
transportation.
Terminating or in any manner effecting the service of water, electricity, gas,
telephone, cable television, at the custonizry residence of the other spouse or
in
any manner attempting to withdraw any deposits for service in connection with
such services.
Intentionally exchuding the other spouse from ingress end egress to the custom
ary
residence of said sponse. .
Taking any action to terminate or limit credit or charge cards in the
possession of
the other spouse.
10 Incurring any credit purchase on any credit account or charge card
in the name of
either spouse except for the acquisition on crored reason
it able attormey’s fees,
medical care, and reasonable and necessary Living expenses for food,
clothing,
shelter, and transportation,
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insurance policy on the life of either spouse.
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ADDENDUM |
IT IS 50 ORDERED this Ist day of February, 1999, effective from end. after
the Ist day of February, 1999,
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Preview
Electronically Filed 6/23/2015 2:50:17 PM Lois Rogers, Smith County District Clerk Reviewed By: J ennifer Black NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA NO. 15-0486-D IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF ELOISA MIRANDA AND 321ST JUDICIAL DISTRICT JOSE LUIS MIRANDA AND IN THE INTEREST OF J.L.M. AND J.L.M., CHILDREN SMITH COUNTY, TEXAS FIRST AMENDED COUNTER-PETITION FOR DIVORCE 1 Discovery Level Discovery in this case is intended to be conducted under level 2 of rule 190 of the Texas Rules of Civil Procedure. 2. Objection to Assignment of Case to Associate Judge Counter-Petitioner objects to the assignment of this matter to an associate judge for a trial on the merits or presiding at a jury trial. 3 Parties This amended suit is brought by JOSE LUIS MIRANDA, Counter-Petitioner. The last three numbers of JOSE LUIS MIRANDA's driver's license number are ***-**-*898, The last three numbers of JOSE LUIS MIRANDA's Social Security number are *****408 ELOISA MIRANDA is Counter-Respondent. Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 4 Domicile Counter-Petitioner has been a domiciliary of Texas for the preceding six-month period and a resident of this county for the preceding ninety-day period. 5 Service Service of this document may be had in accordance with Rule 21a, Texas Rules of Civil Procedure, by serving Counter-Respondent's attorney of record, Michael Jarrett, via e-file. 6. Protective Order Statement No protective order under title 4 of the Texas Family Code is in effect, and no application for a protective order is pending with regard to the parties to this suit. 7. Dates of Marriage and Separation The parties were married on or about June 10, 1994 and ceased to live together as husband and wife on or about February 20 2015. 8 Grounds for Divorce The marriage has become insupportable because of discord or conflict of personalities between Counter-Petitioner and Counter-Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. Counter-Petitioner reserves the right to plead fault grounds at a later date. 9 Children of the Marriage Counter-Petitioner and Counter-Respondent are parents of the following children of this marriage who are not under the continuing jurisdiction of any other court: Name: JIMMY LUIS MIRANDA Sex: Male Birth date: August 20, 2003 Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 2 Name: JARED LUIS MIRANDA Sex: Male Birth date: July 19, 2007 There are no court-ordered conservatorships, court-ordered guardianships, or other court- ordered relationships affecting the children the subject of this suit. Information required by section 154.181(b) of the Texas Family Code is provided as follows: The children are currently covered by health insurance through United Health care, Plan #911-87726-04, Group #744260, through Wife’s employment. No property of consequence is owned or possessed by the children the subject of this suit. Counter-Petitioner and Counter-Respondent, on final hearing, should be appointed joint managing conservators, with all the rights and duties of a parent conservator. The residence of the children should be restricted to Smith County, Texas, 10. Request for Declaratory Judgment and Division of Community Property Counter-Petitioner requests the Court to judicially declare the following: 10.1. The real property residentially described as 2923 Grand, Tyler, Texas, and legally described as “Woldert HTS No. 3 RD LT 6 BL 772, should be declared as community property under the sole management and control of ELOISA MIRANDA; and 10.2. ‘The real property residentially described as 830 W. 31", Tyler, Texas, and legally described as “Woldert HTS No. 3 RD LT 6 BL 772 [Same as 10.1 above], should be declared as community property under the sole management and control of ELOISA MIRANDA. Additionally, in the alternative, the Warranty Deeds dated January 5, 2009, pertaining to 2923 Grand, Tyler, Texas and 830 W. 31%, Tyler, Texas, should be set aside because of an incorrect legal description and therefore in its entirety the deeds fail to convey title Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page3 Additionally, or in the alternative, the Warranty Deeds dated January 5, 2009, purporting to convey property at 830 W. 31", Tyler, Texas and 2923 Grand, Tyler, Texas, should be set aside because there was no consideration given or exchanged in the deeds and both deeds recite “for good consideration, ...” Further, additionally, or in the alternative, and in the event the Court does not grant declaratory judgment finding said real properties to be community property under the sole management and control of ELOISA MIRANDA, then the Court should find that one-half of the title to both of said properties is community property under the sole management and control of ELOISA MIRANDA. 10.3 JOSE MIRANDA requests the Court to judicially declare that the real estate lien note payable to JOSE LUIS MIRANDA and ELOISA MIRANDA secured by a lien against 1445 Montgomery, ‘Tyler, Texas, is the community property of the parties or, alternatively, is jointly owned separate property of the parties. Once the Court has by declaratory judgment identified the characterization of the specific properties and real estate lien note identified above, the Court should divide the community estate of the parties in a manner the Court deems just and right, as provided by law. 11. Separate Property Counter-Petitioner owns certain separate property that is not part of the community estate of the parties, and Counter-Petitioner requests the Court to confirm that separate property as Counter-Petitioner's separate property and estate. 12. Reimbursement Counter-Petitioner requests the Court to reimburse the community estate for funds or assets expended by the community estate for the benefit of Counter-Respondent’s separate estate, if any. Those expenditures resulted in a direct benefit to Counter-Respondent’s separate estate, if any. The community estate has not been adequately compensated for or benefitted Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 4 from the expenditure of those funds or assets, and the failure by the court to allow reimbursement to the community estate will result in an unjust enrichment to Counter- Respondent’s separate estate, if any, at the expense of the community estate. Counter-Petitioner requests the Court to reimburse the community estate for funds or assets expended by the community estate for payment of unsecured liabilities of Counter- Respondents separate estate, if any. The community estate has expended funds or assets to make capital improvements on property claimed by Counter-Respondent as separate property, giving rise to a claim for reimbursement in favor of the community estate and against Counter-Respondent’s separate estate, if any. 13. Request for Temporary Orders and Injunction Counter-Petitioner requests the Court, after notice and hearing, to dispense with the issuance of a bond, to make temporary orders and issue any appropriate temporary injunctions for the preservation of the property and protection of the parties and for the safety and welfare of the children of the marriage as deemed necessary and equitable. Counter-Petitioner requests that the Court enjoin Counter-Respondent from the following: 1 Communicating with Counter-Petitioner in person, by telephone, or in writing in vulgar, profane, obscene, or indecent language or in a coarse or offensive manner Threatening Counter-Petitioner in person, by telephone, or in writing to take unlawful action against any person. Placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication. Cause No. 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 5 Causing bodily injury to Counter-Petitioner or to a child of either party. Threatening Counter-Petitioner or a child of either party with imminent bodily injury. Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties. Falsifying any writing or record relating to the property of either party. Misrepresenting or refusing to disclose to Counter-Petitioner or to the Court, on proper request, the existence, amount, or location of any property of one or both of the parties. Damaging or destroying the tangible property of one or both of the parties, including any document that represents or embodies anything of value. 10 Tampering with the tangible property of one or both of the parties, including any document that represents or embodies anything of value, and causing pecuniary loss to Counter-Petitioner. 11 Selling, transferring, assigning, mortgaging, encumbering, or in any other manner alienating any of the property of Counter-Petitioner or Counter-Respondent, whether personalty or realty, and whether separate or community, except as specifically authorized by order of this Court. 12 Incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by order of this Court. 13 Making withdrawals from any checking or savings account in any financial institution for any purpose, except as specifically authorized by order of this Court. 14 Spending any sum of cash in Counter-Respondent's possession or subject to Counter-Respondent's control for any purpose, except as specifically authorized by order of this Court. 15 Withdrawing or borrowing in any manner for any purpose from any retirement, profit-sharing, pension, death, or other employee benefit plan or employee savings plan or from any individual retirement account or Keogh account, except as specifically authorized by order of this Court. Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 6 16 Entering any safe-deposit box in the name of or subject to the control of Counter- Petitioner or Counter-Respondent, whether individually or jointly with others. 17. Withdrawing or borrowing in any manner all or any part of the cash surrender value of life insurance policies on the life of Counter-Petitioner or Counter- Respondent, except as specifically authorized by order of this Court. 18 Changing or in any manner altering the beneficiary designation on any life insurance on the life of Counter-Petitioner or Counter-Respondent or the parties’ children. 19, Canceling, altering, failing to renew or pay premiums, or in any manner affecting the present level of coverage of any life, casualty, automobile, or health insurance policies insuring the parties' property or persons, including the parties' children, 20. Opening or diverting mail addressed to Counter-Petitioner. 21 Signing or endorsing Counter-Petitioner's name on any negotiable instrument, check, or drafi, such as tax refunds, insurance payments, and dividends, or attempting to negotiate any negotiable instrument payable to Counter-Petitioner without the personal signature of Counter-Petitioner. 22 Taking any action to terminate or limit credit or charge cards in the name of Counter-Petitioner. 23 Discontinuing or reducing the withholding for federal income taxes on Counter- Respondent's wages or salary while this case is pending. 24 Destroying, disposing of, or altering any financial records of the parties, including but not limited to records from financial institutions (including canceled checks and deposit slips), all records of credit purchases or cash advances, tax returns, and financial statements. 25 Destroying, disposing of, or altering any e-mail or other electronic data relevant to the subject matters of this case, whether stored on a hard drive or on a diskette or other electronic storage device. 26 Terminating or in any manner affecting the service of water, electricity, gas, telephone, cable television, or other contractual services, such as security, pest control, landscaping, or yard maintenance, at 996 Montgomery Gardens, Tyler, Texas 75708 or in any manner attempting to withdraw any deposits for service in connection with those services. ‘Cause No. 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 7 27. Excluding Counter-Petitioner from the use and enjoyment of the workshop located on the marital residence located at 996 Montgomery Gardens, Tyler, Texas 75708. 28 Entering, operating, or exercising control over the 2013 Dodge Wrangler Jeep in the possession of Counter-Petitioner. 29 Disturbing the peace of the children or of another party. 30 Withdrawing the children from enrollment in the school or day-care facility where the children are presently enrolled. 31 Hiding or secreting the children from Counter-Petitioner. 32. Making disparaging remarks regarding Counter-Petitioner or Counter-Petitioner's family in the presence or within the hearing of the children. 33 Consuming alcohol within the 8 hours before or during the period of possession of or access to the children. 34, Permitting an unrelated adult with whom Counter-Respondent has an intimate or dating relationship to remain in the same residence with the children between the hours of 10:00 P.M. and 8:00 A.M. Counter-Petitioner requests that Counter-Respondent be authorized only as follows: 1 To make expenditures and incur indebtedness for reasonable and necessary living expenses for food, clothing, shelter, transportation, and medical care. To make expenditures and incur indebtedness for reasonable attorney's fees and expenses in connection with this suit. To make withdrawals from accounts in financial institutions only for the purposes authorized by the Court's order. To engage in acts reasonable and necessary to conduct Counter-Respondent's usual business and occupation. 14, Standing Temporary Restraining Order On February 4, 1999, the courts of Smith County, Texas, issued a Standing Temporary Restraining Order based upon the courts’ opinion that all parties to original divorce proceedings Cause No. 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 8 should be subject to a restraining order from the date of institution of suit or service thereof. Attached hereto as EXHIBIT A is a true and correct copy of the Standing Temporary Restraining Order of the Courts, which is operative and in effect against Petitioner and Respondent upon filing of this petition. 15. Request for Temporary Orders Concerning Use of Property Counter-Petitioner requests the Court, after notice and hearing, for the preservation of the property and protection of the parties, to make temporary orders and issue any appropriate temporary injunctions respecting the temporary use of the parties’ property as deemed necessary and equitable, including but not limited to the following: 1 Awarding Counter-Petitioner exclusive use and control of the 2013 Dodge Wrangler Jeep and enjoining Counter-Respondent from entering, operating, or exercising control over it. Awarding Counter-Petitioner the exclusive use of the following property and enjoining Counter-Respondent from exercising possession or control of any of this property: The work shop located on the marital residence at 996 Montgomery Gardens, Tyler, Texas 75708. 16. Request for Temporary Orders Regarding Children Counter-Petitioner requests the Court, after notice and hearing, to dispense with the necessity of a bond and to make temporary orders and issue any appropriate temporary injunctions for the safety and welfare of the children of the marriage as deemed necessary and equitable, including but not limited to the following: 1 Appointing Counter-Petitioner and Counter-Respondent temporary joint managing conservators. Ordering Counter-Petitioner to pay child support, health insurance premiums for coverage on the children, and 50 percent of the children's uninsured medical expenses while this case is pending. Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 9 3 Restricting the residence of the children to Smith County, Texas. 17. Request for Interim Attorney's Fees and Temporary Support Counter-Petitioner requests the Court, after notice and hearing, for the preservation of the property and protection of the parties, to make temporary orders and issue any appropriate temporary injunctions regarding attorney's fees and support as deemed necessary and equitable, including but not limited to the following: 1 Counter-Petitioner requests that Counter-Respondent be ordered to pay reasonable interim attorney's fees and expenses, including but not limited to fees for appraisals, accountants, actuaries, and so forth. Counter-Petitioner is not in control of sufficient community assets to pay attorney's fees and anticipated expenses, 18. Request for Temporary Orders for Discovery and Ancillary Relief Counter-Petitioner requests the Court, after notice and hearing, for the preservation of the property and protection of the parties, to make temporary orders for discovery and ancillary relief as deemed necessary and equitable, including but not limited to the following: 1 Ordering Counter-Respondent to provide a sworn inventory and appraisement of all the separate and community property owned or claimed by the parties and all debts and liabilities owed by the parties substantially in the form and detail prescribed by the Texas Family Law Practice Manual (3d ed.), form 7-1, Ordering Counter-Respondent to execute all necessary releases required by Counter-Petitioner to obtain any discovery allowed by the Texas Rules of Civil Procedure. Ordering Counter-Respondent to execute all necessary releases pursuant to the Health Insurance Portability and Accountability Act (HIPAA) and 45 CFR. section 164.508 to permit Counter-Petitioner to obtain health-care information regarding the children, Ordering Counter-Respondent to execute for all health-care providers of the children an authorization for disclosure of protected health information to Counter-Petitioner pursuant to the Health Insurance Portability and Accountability Act (HIPAA) and 45 C.F,R. section 164.508. Cause No. 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 10 Ordering Counter-Respondent to designate Counter-Petitioner as a person to whom protected health information regarding the children may be disclosed whenever Counter-Respondent executes an authorization for disclosure of protected health information pursuant to the Health Insurance Portability and Accountability Act (HIPAA) and 45 C.F.R. section 164.508. Ordering a pretrial conference to simplify the issues in this case and determine the stipulations of the parties and for any other matters the Court deems appropriate. 19. Attorney's Fees, Expenses, Costs, and Interest It was necessary for Counter-Petitioner to secure the services of SAMUEL M. GEORGE, a licensed attorney, to prepare and prosecute this suit. To effect an equitable division of the estate of the parties and as a part of the division, and for services rendered in connection with conservatorship and support of the children, judgment for attorney's fees, expenses, and costs through trial and appeal should be granted against Counter-Respondent and in favor of Counter- Petitioner for the use and benefit of Counter-Petitioner's attorney and be ordered paid directly to Counter-Petitioner's attorney, who may enforce the judgment in the attorney's own name, Counter-Petitioner requests postjudgment interest as allowed by law. 20. Prayer Counter-Petitioner prays that citation and notice issue as required by law and that the Court grant a divorce and all other relief requested in this counter-petition. Counter-Petitioner prays that the Court, after notice and hearing, grant a temporary injunction enjoining Counter-Respondent, in conformity with the allegations of this counter- petition, from the acts set forth above while this case is pending. Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 1 Counter-Petitioner prays for attorney's fees, expenses, costs, and interest as requested above Counter-Petitioner prays for general relief. Respectfully submitted. Samuel George, Attorney at Law 400 Troup Road Tyler, TX 75701 Tel: (903) 595-6000 Fax: (903) 595-6066 mI SAMUEL M, GEORGE State Bar No. 07806700 nicnat@suddenlinkmail.com Attorney for Counter-Petitioner Certificate of Service I certify that a true copy of the above was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure on June 23 2015 PY) SAMUEL M. GEORGE Attorney for Counter OF ions Cause No, 15-0486-D; ITMOTMO Miranda First Amended Counter-Petition for Divorce Page 12 FILED Btrwy DE ri PSSEY P Clee wen INTHE SS FEB- AK ID: 5k 321ST JUDICIAL DISTRICT COURT, COUNTY COURT AT LAW HIT COURT, TEXAS AND COUNTY COURT AT LAW NUMBER. TWO, Re Leet SMITH COUNTY, TEXAS STANDING TEMPORARY RESTRAINING ORDER On. the \&. day of _Fa\y _ 1999. came on to be considered the matter of issuance of temporary orders 2s provided by the Local Rules of these Courts (in supplement to the Texas Rules of Civil Procedures), effective 199 sod the Courts being of the opinion that all parties to original divoree proceedings in the 32] st Judicial District Court, County Court at Law, end County Court at Lew Number Two of Smith County, Teought xa to besubject s, to a restraining order from the date of institution of suit or service thereof and it appearinto g the said Courts appropriate to enter a STANDING TEMPORARY RESTRAINING ORDER and the Court does hereby enter this order which is henceforth to be effective with respect to all parties to original divores procesdines ivi actual or constructive notics thereof, and cach third party to original divorce proceedings, end IT IS THEREFORE ORDERED that Petitioner, Respondent, and all third parties to safd proceedings ARE HEREBY RESTRAINED AND ENJOINED FROM: l Removing any minor child of the parties to a location beyond the jurisdiction of this Court unless authorized by this Court. Consuming any illegal controlled substance (As that term is defined in the Texas Controlled Substance Act), , 12 hours prior to and during any period of possession of the child(ren), aw asus -- a 3 Engg ging in any physical contact witha on-withthe intent torece ortve arouse fae ae. ession (ren) the sa ——— NeTe OF] SENCE ——— a = _ “= 4— Doing or atemping oo3e threatening te-do any at oF injury embarrassment = ». molestation, or harassment to the other spouse or the child (or an: y of the children) or any family member in possession of the child(ren) to which family member the parents relinquished possession of the child(ren) or acqui esced in said family member's possession of the child(ren) for at least six (6) mont ths immediately preceding the filing of the divorce petition. ADDENDUM | swheb ib ly Making any derogatory or disparaging remarks against the other party to the child(ren) or within the child(ren)'s hearing range or presence nor shall either Party allow the child(ren) to be in the presence of anyone making disparaging or derogetory remarks against the other party or the child(ren), Selling, encumbering,.contracting to sell, damaging, destroying, iati or otherwise disposing of or removing from the jurisdiction of this Court any of the property, including monies on account in any financial institution, which belong to the parties, except in the ordinary course of business or to make expenditures and incur indebtedness for reasonable attorney's fees, medical care, and for reasonable and necess livingary expenses for food, clothing, shelter, and : transportation. Terminating or in any manner effecting the service of water, electricity, gas, telephone, cable television, at the custonizry residence of the other spouse or in any manner attempting to withdraw any deposits for service in connection with such services. Intentionally exchuding the other spouse from ingress end egress to the custom ary residence of said sponse. . Taking any action to terminate or limit credit or charge cards in the possession of the other spouse. 10 Incurring any credit purchase on any credit account or charge card in the name of either spouse except for the acquisition on crored reason it able attormey’s fees, medical care, and reasonable and necessary Living expenses for food, clothing, shelter, and transportation, ll Chaiigit tr i aay nianineF alitnig ths benaticlity ARSigaatoon ay life~ insurance policy on the life of either spouse. -o oA eee LL -SS as ee ~ — — — ooo . Ez ‘Cante g, AER - ir any iain ere RECLINE Ay CARLENE HE : policit Prop Or persons including the px vties! a HS —--— —* = (ren) FI Peotherspoust-on-any: doctment= ADDENDUM | IT IS 50 ORDERED this Ist day of February, 1999, effective from end. after the Ist day of February, 1999, XY) Lea . 21stJudictal District Court Z A. DUNN, JUDGE— At Law >\c ee County Court At Law #2 ee — ae ~- nate ease eens — note — me oe -— Se el ee ee a a BS = ——