Preview
10/28/2011
NO. D-1-FM-10-005425
£ Se
sa =s
IN THE MATTER OF THE MARRIAGE OF Ss . a
2.
IRMA MILICIA AGNEW § INTHE DISTRICT couRT #2 5
§ 96 s
AND § 126" JUDICIAL DISTRICT £9 Ys
§ £5 3
WILLIAM HAROLD AGNEW 8 TRAVIS COUNTY, TEXAS 3 s
zs g
=
RESPONDENT'S ORIGINAL ANSWER WITH THIRD AMENDED PLEADING AND
NON CHANGED TORT ACTION
Discovery Control Plan
I. Discovery in this suit was to by governed by a Level 2 discovery-control plan.
Domicile
2. The parties are residents and domiciles of Travis County, Texas for 26 years.
Jurisdiction
3. This court has personal, subject matter and statutory jurisdiction over the parties
and claims under state and federal rules of procedure, codes, statutes and
constitutions.
Venue
4, Venue is proper in Travis County, Texas under state and federal rules, statutes,
codes and constitutions since all acts or omissions giving rise to this suit occurred
in this county.
Introduction
5. Petitioner is Irma Milicia Agnew, herein after referred to as “Irma,” is an individual
that is a citizen under the laws of the State of Texas, who resides at 4909 Sunset
Trail, Apt. A, Austin, Texas 78745, and whose last three (3) digits of her TX DL are
485 and whose last three (3) digits of her Social Security numbers are 338.
Agnew / Third Amended Pleading / Page |
00224180910.
Respondent is William Harold Agnew, herein after referred to as “William,” is an
individual that is a citizen of the State of Texas, who resides at 1906 Inverness
Blvd., Austin, Texas 78745 and whose last three (3) digits of his TX DL are 016 and
last three (3) digits of his Social Security number are 068.
“Irma” sued “William” for a Divorce.
This case is set for trial on November 2, 2011.
There have been two (2) hearings for compelling discovery in this case. In both
hearings the parties agreed to respond to all outstanding written discoveries, each
was approved and ordered by the Court.
General Denial
“William” generally denies each and every allegation of impropriety within “Irma’s”
petition.
Verified Denial
“William” verifiably denies each and every allegation of impropriety within
“Irma’s” petition.
Special Exception
. “Irma” should properly evaluate her separate property. If the amount of a spouses
separate estate is significant enough that it could affect the Court's just and right
division of marital property, the value of the spouse’s separate property should be
established. Padon v. Padon, 670 S.W. 24354, 359 (Tex. App.- San Antonio 1984);
Murff v. Murff, 615 S.W. 2d. 696 (Tex. 1981) Each spouse has the burden of
presenting evidence of the value of his or her marital property. Wallace v. Wallace
623 S.W. 2d 723, 725 (Tex. App.- Houston 1981)
Special Exception
. “William” specially excepts to “Irma’s” second amended petition, paragraph fifteen
(15). “Irma” has never used the name, “Irene,” a requirement by Texas Family
Codes, 6.706(a), and 45.102(a)(3). A name change in this case is not in the interest
of the public, a requirement under both the Texas Family Code and Tex. R. Civ. P.
Agnew / Third Amended Pleading / Page 2
10/28/2011 JSpecial Exception
14. “William” specially excepts to “Irma’s” second amended petition, paragraph seven
(7). The separation occurred November 15, 2009 and not November 25, 2009.
Special Exception
15. “William” specially excepts to “Irma’s” second amended petition, paragraph sixteen
(16). Attorney Services, Fees, Expenses, Costs, and Interest were not and are not
reasonable or necessary to represent this case. “Irma” knew she could mitigate costs
by utilizing the Courts generic forms and guidance by the law librarian and duty
attorneys. “William,” communicated indirectly with “Irma” several times upon him
becoming aware she filed for divorce and informed her of this.
Special Exception
16. “William” specially excepts to “Irma” repeatedly refusing to supplement her
allegation of “cruelty” as requested through discovery by “William” asking for the
factual and legal contention thereof in order that “William” can have information
to know how to put forth a proper defense. There is insufficient time now before
trial for “William” to notice Irma” for summary judgment. In Re Marriage of
Richards, 991 S.W. 2d 32, 36 (Tex.-App. - Amarillo 1999); “The purpose of the
fair notice rule is to give the defendant enough information to prepare a defense.”
Roark, 633 S.W. 2d at 810; see Yowel v. Aircraft Piper Corp., 703 8.W. 3d 630,
633, (Tex. 1986).
Affirmative Defense
17. “William” is not aware of any “cruelty” toward “Irma” by “William.” “William” will
put forth this affirmative defense as a precautionary measure in the event “Irma”
perceived cruelty by “William.” However, “Mere disagreements or trifling matters
will not justify granting a divorce for cruelty.” Shankles v. Shankles, 445 S.W. 2d
803, 807 (Tex. App.- Waco 1969). Trivial disagreements during a marriage do not
amount to cruelty. Henry, 48 S.W. 3d at 474. If, for instance, the complaining
spouse suffers only nervousness or embarrassment, a trial court may not grant the
divorce on the ground of cruelty.” Golden v. Golden, 238 S.W.2d 619, 621 (Tex.
App.-Waco 1951). “William” is, and has a family history of being deeply affected
psychologically and emotionally to divorce. If “William” crossed the threshold to
Agnew / Third Amended Pleading / Page 3
10/28/201120.
21.
10/28/2011
“cruelty” he did not think so. “William’s Mother became deeply depressed after
divorce. “William’s’ Mother's Brother, “William’s” Uncle, committed suicide after
his wife filed for divorce. (Popper, 388 S.W. 2d at 470).
COUNTERPETITION FOR DIVORCE
. “Irma” is guilty of cruelty toward “William” of a nature that renders further living
together insupportable.
. “Irma” is guilty of Abandonment of “William” that renders further living together
insupportable.
Request for Disproportionate Share of the Estate
“William” should be awarded a disproportionate share of the parties’ estate for the
foregoing reasons as well as other considerations he shows himself entitled to.
Division of Community Property
“William” respectfully asks the Court to consider the following factors as set out by
the Texas Supreme Court in its legendary case, Murff v. Murff, 615 S.W. 2d. 696
(Tex. 1981) as the most important factors for a court to consider in making a “just
and right” division of the community estate:
1. The disparities of incomes or earning capacities of the spouses;
2. The spouses’ capacities and abilities;
3. Benefits of which the spouse not at fault would have derived from
the continuation of the marriage;
4. Business opportunities of the spouses;
5. Education of the spouses;
6. Relative physical conditions of the spouses;
7. Relative financial conditions of the spouses;
8. Differences in the size of each spouse's separate estate;
g. The nature of the property to be divided;
10, Fault in the break up of the marriage;
11, Attorney’s fees and necessary legal expenses by the parties;
Agnew / Third Amended Pleading / Page 410/28/2011
Spousal Maintenance
22. “William” requests the Court to order that Petitioner pay post divorce maintenance
for a reasonable period in accordance with Texas Family Code Chapter 8.
Homestead
23. “William” asks the Court as a just and right division that he be awarded the
homestead for the following reasons:
a.
“William,” for two (2) years has exhausted his finances in order to keep the
homestead from foreclosure. All the while occupying only one small room
with little use of one bath and the kitchen with defective appliances. Had
“William” left the home at the time “Irma” did, it would have been foreclosed
on, and “Irma” and “William” possibly may have had a judgment against them
in the event the home did not sell for a sufficient amount to cover the balance
owed and related expenses of the sale. Foreclosures are known to generally
sell for about 30% -40% less than a non-foreclosure.
“William” would like to leave the home to “Irma’s” and “William’s” children as
an inheritance. “Irma” is eager to receive her inheritance in the form of her
parent’s homestead. “William” believes it only fair that “Irma’s” and
“William’s” children have that same privilege.
“William” put a lot of effort into initially acquiring the home, then puta
tremendous amount of labor and material into the home in order that it be
inhabitable for his family, then began remodeling once again in early 2010.
The homestead has sentimental value. For example, there is a place on the
wall by the kitchen where we have “marked” the heights of our grandchildren
from the ages of 18 months to 13 years of age. “William” intentionally did not
paint over it during remodeling in early 2010 after “Irma?” left.
“William” has “homestead status” on the home.
Agnew / Third Amended Pleading / Page 510/28/2011
f. “William” would like to rent all but one room in the home of which he would
live in. “William” needs companionship anyway as everyone and not live
alone, or for a period of time “William” could rent the entire home while
keeping homestead status.
g. Home prices have fallen in the past years due to the depressed housing
market and it is harder and it takes longer to sell a home. The time that it
would take to get the homestead in condition to sell and the fact that homes in
this price range are generally on the market for 2 — 3 months would mean that
our home would likely not sell for 4 - 5 months, during which time the
mortgage, related bills and other costs to maintain the property would have to
be paid to prevent foreclosure. A quick sale at a very low price would be
unreasonable. In just a few years, most economists agree, home prices will
began to appreciate and stabilize once again.
h. “William” can use his knowledge in construction and residential real estate to
get the home in good physical condition with less expense than what it
otherwise may cost.
i. “William” does not feel it would actually be like he would be receiving funds
by remaining with the home since he has no desire to sell it. “William”
believes it would be more reasonable to pay mortgage as an investment on a
home than to pay rent.
Election for Continued Health Coverage
24. William Harold Agnew elects to exercise option for Continued Health Insurance
Coverage under the Texas Insurance Code §1251.308(a) and would respectfully ask
the Court to order that “Irma” give written notice of such election to the group policy
holder. Winkle v. Winkle,951 S.W. 2d 80, 90 (Tex. App.- Corpus Christie 1997).
Agnew / Third Amended Pleading / Page 625.
REIMBURSMENT CLAIMS
Count One: Social Security Disability Benefits
. The contributing estate is William Harold Agnew’s separate estate;
. The benefiting estate is Irma Milicia Agnew’s separate estate;
.. The contribution is William Harold Agnew’s Social Security Benefits;
. William Harold Agnew asks that his separate estate be reimbursed;
. William Harold Agnew requests that an equitable lien be placed against Irma
Milicia Agnew’s separate estate in the name of William Harold Agnew to secure
the reimbursement award.
Social Security Benefits are pre-empted under Federal Law from being classified
as community property. (see Richard v. Richard, 659 S.W. 2d 746, 749 (Tex. App.
~ Tyler 1983), (42 U.S.C. 407(a) - Social Security Act). “William” requests
reimbursement of his Social Security Benefits of which he used to pay for two (2)
years the mortgage principal, interest, taxes, hazard insurance, additional utilities
and other household expenses that he otherwise would not have paid if it weren't
for doing so to prevent foreclosure to the homestead and a possible judgment
against “Irma” and ”William.” (see Exhibit R - 1 )
Arguments and Authorities - Reimbursements May Be Dollar per Dollar
26. (Payments of unsecured liability). If the contribution was a payment of an unsecured
liability, the value of the contribution is equal to the payment. Texas PJC — family
(2010) PJC 204.1 (Reimbursement - instructions and questions); see, e.g., Chacon v.
Chacan, 222 S.W. 3d 222 S.W. 3d 909, 911-12 (Tex. App. — El Paso 2007); (dollar
amount deducted from W’s paychecks for H’s IRS debt was reimbursable in full);
McDaniel v. McDaniel, No. 03-03-00521 CV (Tex. App. — Austin 2004) (memo 3-18-
04) (Wife’s payment of debt, including taxes and credit card, was reimbursable dollar
per dollar).
(Payments to reduce principal of secured debt). If the contribution was a payment to
reduce the principal of a secured debt, the value of the contribution is equal to the
payment. See Texas PJC 204.1 (reimbursement — instruction and question).
Agnew / Third Amended Pleading / Page 7
10/28/201127.
28.
10/28/2011
Count Two — Breach of Fiduciary Duty
. The contributing estate is the community estate;
. The benefiting estate is Irma Milicia Agnew’s separate leasehold estate;
. The contribution is community income;
. William Harold Agnew asks that the community estate be reimbursed;
. William Harold Agnew requests an equitable lien against Irma Milicia
Agnew’s separate estate to secure the reimbursement award;
It was not necessary that “Irma” lease an apartment. She could have resided
with her mother as did her sister is and is still, in the house she inherited as
her separate property, and thus mitigated expenses from the community
estate. Twenty Four (24) months x approximately 1,000.00 per month, cost of
apartment = 24,000.00 to date. One half (4) that amount as reimbursement to
the community estate = $12,000.00.
Count Four — Breach of Fiduciary Duty
. The contributing estate is the community estate;
. The “waste” is to the community estate;
. The contribution is community income;
|. William Harold Agnew asks that the community estate be reimbursed;
. William Harold Agnew requests an equitable lien against Irma Milicia
Agnew’s separate estate to secure the reimbursement award;
“William” began remodeling the homestead in the second (2") quarter of
2010 due to that “William” believed that “Irma” and “William” were going to
reconcile and move back into the homestead, only “Irma” changed her mind.
“William” halted the remodeling due to that he could not afford to finish the
remodeling and also pay the mortgage and related expenses. The house
Agnew / Third Amended Pleading / Page 829.
g.
remained in a partial remodeled condition. Had “William” been able to rent
the rooms the rent revenue would have totaled to approximately $1,000 per
month x twenty four (24) months = $24,000.00 to date. One half (4) that
amount as reimbursement to the community estate = $12,000.00.
Count Five — Loan Guarantee and Insurance on Daughter’s Car
a.
The benefiting estate is “Irma’s” separate estate;
The contributing estate is “William’s” separate estate ;
The contribution is from the community estate;
“William” asks that the community estate be reimbursed;
William Harold Agnew requests an equitable lien against Irma Milicia
Agnew’s separate estate to secure the reimbursement award;
william” and “Irma” agreed and did take out a loan with RBFCU to purchase
their daughter who is in college a car for the cost of $8,000.00. Three months
later “Irma” abandoned William’ leaving him to pay for the loan on the car
and insurance on the car by taking her community income from the
community. ”William” requests that “Irma” reimburse "William” for one half
¥ of the amount of the loan of $8,000 = $4,000 plus one half ¥2 the amount of
the insurance on the car of $2,700 = $1,350 - ($75.00 x 36 months). $4,000 +
$1,350 = $5,350.00 in Total.
Count Six — Separate Property Brought into Marriage
a. The contributing estate is William Harold Agnew’s separate estate;
b. The benefiting estate is the community estate;
¢. The contribution is William Harold Agnew’s separate estate;
d. William Harold Agnew asks that his separate estate be reimbursed;
Agnew / Third Amended Pleading / Page 9
10/28/201130.
e. William Harold Agnew requests an equitable lien against Irma Milicia Agnew’s
separate estate to secure the reimbursement award;
f. Automobiles that “William” brought into the marriage, one (1) Ford Mustang
and one (1) Chevrolet Malibu, with Fair Market Values adjusted for today’s prices
being $6,500 and 3,100, respectfully, totaling approximately $9,100.00.
Separate Cause of Action - Tort
‘Count Five - Intentional Infliction of Emotional Distress
g. William Harold Agnew, herein after referred to as “William” brings suit against
Irma Milicia Agnew, herein after referred to as “Irma,” in “William’s” individual
capacity.
h. “Irma’s” conduct in “Irma’s” and “William’s” one and only marriage of thirty six
(36) years suddenly and drastically changed. “Irma” became so extremely
hateful, abusive, deceptive and ruthless towards “William,” and such conduct
was intentional and reckless.
i, “Irma’s” conduct was extreme and outrageous in numerous ways. “Irma”
continued to intentionally and recklessly treat “William” with extreme
indignities, hate, secrecy and the list goes on, while “William” was trying so
hard to be nice and polite. “Irma” would tell “William” extremely insulting and
hurtful things to his face.
j. “Irma’s” conduct proximately caused severe emotional distress to “William.”
“William” became traumatized, depressed, anxious and emotionally debilitated.
k. “William’s” severe emotional distress cannot be remedied by any other cause of
action. There were so many things and ways that “Irma” hurt “William” he feels
he will never feel whole again.
1. “Irma” wrongful conduct proximately caused the following damages: General
Damages, Special Damages and Exemplary Damages:
m. Plaintiff seeks unliquidated damages within the jurisdictional limits of this
court.
Agnew / Third Amended Pleading / Page 101
10/28/201131.
32.
Arguments and Authorities
n. In Hoffman-La Roche, Inc., the Texas Supreme Court suggests that a plaintiff is
not barred from bringing an IIED claim if there is an “independent” set of facts
that would support the claim. See Hoffman-La Roche, Inc., 144 S.W. 3d at 450.
Conclusion
William Harold Agnew as Respondent, Counterpetitioner and Counterclaimant asks
this court after considering all the evidence and facts to grant him relief as requested
herein requested or otherwise is entitled to after all the evidence is in for all claims
herein.
Prayer
For these reasons, Respondent, “William” asks the court to render judgments in and
of this divorce suit of the division of property in favor of “William” as he shows
himself entitled as well as reimbursement and Tort claim, and rule that petitioner,
Irma Milicia Agnew take nothing, assess costs against petitioner, and award all other
relief to which William Harold Agnew is entitled to and asks for the following
unliquidated damages within the jurisdictional limits of this Court.
a. General Damages;
b. Special Damages: Personal Injury Damages; Future Mental and
Emotional Pain and Suffering, Future Loss of Credit Reputation, Future Loss
of Earning Capacity, Future Medical and Mental Expenses, Loss of Family
Companionship. Personal Property Damages; Loss of Use. Real
Property Damages; Actual (Intrinsic) Value of Improvements, Cost of
Repair of Improvements, Loss of Use of Improvements, Loss of Use of Land.
Contractual Damages; Expectancy in Lost Profits and community income;
Reliance; and Restitution.
c. Exemplary Damages
d. Prejudgment and postjudgment interest.
e. Court costs;
f. All other relief to which Respondent/Counterpitioner/Counterclaimant is
entitled.
Agnew / Second Amended Pleading / Page 11
10/28/2011Agnew / Second Amended Pleading / Page 12
10/28/2011
Respectfully submitted,
WILLIAM HAROLD AGNEW
1906 Inverness Blvd.
Austin, Texas 78745
Ph. 512-810-2605
Fax 512-707-1214
By: LL (a
WILLIAM HAROLD AGNEW,
PRO SE, TX DL 016, SS# 5068VERIFICATION
STATE OF TEXAS §
TRAVIS COUNTY §
Before me, the undersigned notary, on this day personally appeared William Harold
Agnew, a person whose identity is known to me. After I administered an oath to him,
upon his oath he said he read his Original Answer, Third Amended Pleading with
Counterpetition, Claims for Reimbursements, and Separate Tort Action in No. D-1-
FM-10-005425 and that the facts stated in it are within his personal knowledge and are
true and correct.
William Harold Agnew,
Sworn to and subscribed before me by William Harold Agnew, on /G-2¢ -<0// ,
20 //.
the State g
My commission expires: @-67~/5
Notary Public, State of Tscas
of ity Commiasion Expires.
GS GILLIAN M. L. DREESEN |
“itset/ sept or aot
10/28/201110/28/2011
EXHIBIT R-1, pagel
NO. D-1-FM-10-005425
SPREADSHEET FOR REIMBURSMENT CLAIM FOR SOCIAL SECURITY
DISABLITY BENEFITS
William Harold Agnew’s spreadsheet indicating that his Social Security Benefits were used to
pay mortgage and related expenses for the sole reason to keep Homestead from Foreclosure and
prevent possible judgment against Irma Agnew and William Agnew for possible loss on property
in the event of foreclosure had he left homestead as did “Irma.” “William only occupied one
room of the home with limited use of kitchen and bathroom with defective appliances and
unfinished electrical, etc., for two (2) years, after Irma Agnew abandoned William Agnew.
The home has been in a state of being half remodeled and with defective or no appliances for two
years.
The “Use and Enjoyment” of the one room’s FMV would normally be $450.00 per month,
however, deducting $100.00 for the sub-standard condition: $450.00 minus $100.00 =
Real FMV $350.00 per month, in “William’s” calculation and belief.
Monthly Income and Expenses for William Agnew for past two years, (see bank statement)
indicating there could not have been any amount of community property funding, in William
Agnew’s possession, sufficient to cover mortgage and related expenses, without William Agnew
using his Social Security Disability Benefits for mortgage and related expenses, which is the
reimbursement requested:
(Please See Next Page)
Page 1 of 210/28/2011
EXHIBIT R-1, page2
NO. D-1-FM-10-005425
SPREADSHEET FOR REIMBURSMENT CLAIM FOR SOCIAL SECURITY
DISABLITY BENEFITS
Income Disability:
1. Metlife $1,500
2. Social Security 753
Total Income $2,253
Necessaries, Non Home Related Expenses (3 — 6)
3. Food, Hygienic, and
Clothes, (30 Days x $20.00 ) $600
4, Car Payment - Daughter's Car 200
5. Car upkeep - William Agnew 75
6. Car Insurance - William Agnew 75
Necessaries, Home Related Expenses (7 — 16)
7, Phone and Internet 75
8. Utilities 260
9, Maintenance in general, house and yard 70
10. Primary Mortgage Payment = $816
(includes related costs below)
12. Toward Principal 100
13. Toward Interest on principal: 395
14, Toward Property Taxes 200
15. Toward Hazard Insurance 120
16. Interest toward Home Eq. Loan 85
Total All Necessaries $2,255 (see below)
Home related expenses (#7 — #16) = $1,305, less FMV $350.00 as cost of One Room Rental
(page 1) = $1,305.00
2350.00
$955.00 amount William Agnew could have saved but instead went to pay on
homestead to prevent foreclosure since Irma Agnew abandoned on November 15, 2009.
$753.00 per month was in form of Social Security Benefits of which William Agnew requests
reimbursement. [ 24 months x $753.00 = $18,072, reimbursable amount. |
Page 2 of 210/28/2011
CERTIFICATE OF SERVICE
1 certify that a copy of William Harold Agnew’s Proposed Disposition of |
Issues, Inventory and Appraisement, Second Amended Pleading and Motion for
Leave to Amend Pleading was served upon Petitioner, Irma Milicia Agnew in
NO, D-1-FM-10-005425 by and through her attorneys, Margaret Tucker and
Catherine Mauzy, 1150 Lavaca, Austin, Texas 78701, by
Certified Mail #7008 2810 0000 9537 4141, on( Ae 1 EM, : 2oV// ;
and by facsimile on Led, Ce Z 2.64% 20f /.
a,
WILLIAM HAROLD AGNEW,
PRO SE LITIGANT
Preview
10/28/2011 NO. D-1-FM-10-005425 £ Se sa =s IN THE MATTER OF THE MARRIAGE OF Ss . a 2. IRMA MILICIA AGNEW § INTHE DISTRICT couRT #2 5 § 96 s AND § 126" JUDICIAL DISTRICT £9 Ys § £5 3 WILLIAM HAROLD AGNEW 8 TRAVIS COUNTY, TEXAS 3 s zs g = RESPONDENT'S ORIGINAL ANSWER WITH THIRD AMENDED PLEADING AND NON CHANGED TORT ACTION Discovery Control Plan I. Discovery in this suit was to by governed by a Level 2 discovery-control plan. Domicile 2. The parties are residents and domiciles of Travis County, Texas for 26 years. Jurisdiction 3. This court has personal, subject matter and statutory jurisdiction over the parties and claims under state and federal rules of procedure, codes, statutes and constitutions. Venue 4, Venue is proper in Travis County, Texas under state and federal rules, statutes, codes and constitutions since all acts or omissions giving rise to this suit occurred in this county. Introduction 5. Petitioner is Irma Milicia Agnew, herein after referred to as “Irma,” is an individual that is a citizen under the laws of the State of Texas, who resides at 4909 Sunset Trail, Apt. A, Austin, Texas 78745, and whose last three (3) digits of her TX DL are 485 and whose last three (3) digits of her Social Security numbers are 338. Agnew / Third Amended Pleading / Page | 00224180910. Respondent is William Harold Agnew, herein after referred to as “William,” is an individual that is a citizen of the State of Texas, who resides at 1906 Inverness Blvd., Austin, Texas 78745 and whose last three (3) digits of his TX DL are 016 and last three (3) digits of his Social Security number are 068. “Irma” sued “William” for a Divorce. This case is set for trial on November 2, 2011. There have been two (2) hearings for compelling discovery in this case. In both hearings the parties agreed to respond to all outstanding written discoveries, each was approved and ordered by the Court. General Denial “William” generally denies each and every allegation of impropriety within “Irma’s” petition. Verified Denial “William” verifiably denies each and every allegation of impropriety within “Irma’s” petition. Special Exception . “Irma” should properly evaluate her separate property. If the amount of a spouses separate estate is significant enough that it could affect the Court's just and right division of marital property, the value of the spouse’s separate property should be established. Padon v. Padon, 670 S.W. 24354, 359 (Tex. App.- San Antonio 1984); Murff v. Murff, 615 S.W. 2d. 696 (Tex. 1981) Each spouse has the burden of presenting evidence of the value of his or her marital property. Wallace v. Wallace 623 S.W. 2d 723, 725 (Tex. App.- Houston 1981) Special Exception . “William” specially excepts to “Irma’s” second amended petition, paragraph fifteen (15). “Irma” has never used the name, “Irene,” a requirement by Texas Family Codes, 6.706(a), and 45.102(a)(3). A name change in this case is not in the interest of the public, a requirement under both the Texas Family Code and Tex. R. Civ. P. Agnew / Third Amended Pleading / Page 2 10/28/2011 JSpecial Exception 14. “William” specially excepts to “Irma’s” second amended petition, paragraph seven (7). The separation occurred November 15, 2009 and not November 25, 2009. Special Exception 15. “William” specially excepts to “Irma’s” second amended petition, paragraph sixteen (16). Attorney Services, Fees, Expenses, Costs, and Interest were not and are not reasonable or necessary to represent this case. “Irma” knew she could mitigate costs by utilizing the Courts generic forms and guidance by the law librarian and duty attorneys. “William,” communicated indirectly with “Irma” several times upon him becoming aware she filed for divorce and informed her of this. Special Exception 16. “William” specially excepts to “Irma” repeatedly refusing to supplement her allegation of “cruelty” as requested through discovery by “William” asking for the factual and legal contention thereof in order that “William” can have information to know how to put forth a proper defense. There is insufficient time now before trial for “William” to notice Irma” for summary judgment. In Re Marriage of Richards, 991 S.W. 2d 32, 36 (Tex.-App. - Amarillo 1999); “The purpose of the fair notice rule is to give the defendant enough information to prepare a defense.” Roark, 633 S.W. 2d at 810; see Yowel v. Aircraft Piper Corp., 703 8.W. 3d 630, 633, (Tex. 1986). Affirmative Defense 17. “William” is not aware of any “cruelty” toward “Irma” by “William.” “William” will put forth this affirmative defense as a precautionary measure in the event “Irma” perceived cruelty by “William.” However, “Mere disagreements or trifling matters will not justify granting a divorce for cruelty.” Shankles v. Shankles, 445 S.W. 2d 803, 807 (Tex. App.- Waco 1969). Trivial disagreements during a marriage do not amount to cruelty. Henry, 48 S.W. 3d at 474. If, for instance, the complaining spouse suffers only nervousness or embarrassment, a trial court may not grant the divorce on the ground of cruelty.” Golden v. Golden, 238 S.W.2d 619, 621 (Tex. App.-Waco 1951). “William” is, and has a family history of being deeply affected psychologically and emotionally to divorce. If “William” crossed the threshold to Agnew / Third Amended Pleading / Page 3 10/28/201120. 21. 10/28/2011 “cruelty” he did not think so. “William’s Mother became deeply depressed after divorce. “William’s’ Mother's Brother, “William’s” Uncle, committed suicide after his wife filed for divorce. (Popper, 388 S.W. 2d at 470). COUNTERPETITION FOR DIVORCE . “Irma” is guilty of cruelty toward “William” of a nature that renders further living together insupportable. . “Irma” is guilty of Abandonment of “William” that renders further living together insupportable. Request for Disproportionate Share of the Estate “William” should be awarded a disproportionate share of the parties’ estate for the foregoing reasons as well as other considerations he shows himself entitled to. Division of Community Property “William” respectfully asks the Court to consider the following factors as set out by the Texas Supreme Court in its legendary case, Murff v. Murff, 615 S.W. 2d. 696 (Tex. 1981) as the most important factors for a court to consider in making a “just and right” division of the community estate: 1. The disparities of incomes or earning capacities of the spouses; 2. The spouses’ capacities and abilities; 3. Benefits of which the spouse not at fault would have derived from the continuation of the marriage; 4. Business opportunities of the spouses; 5. Education of the spouses; 6. Relative physical conditions of the spouses; 7. Relative financial conditions of the spouses; 8. Differences in the size of each spouse's separate estate; g. The nature of the property to be divided; 10, Fault in the break up of the marriage; 11, Attorney’s fees and necessary legal expenses by the parties; Agnew / Third Amended Pleading / Page 410/28/2011 Spousal Maintenance 22. “William” requests the Court to order that Petitioner pay post divorce maintenance for a reasonable period in accordance with Texas Family Code Chapter 8. Homestead 23. “William” asks the Court as a just and right division that he be awarded the homestead for the following reasons: a. “William,” for two (2) years has exhausted his finances in order to keep the homestead from foreclosure. All the while occupying only one small room with little use of one bath and the kitchen with defective appliances. Had “William” left the home at the time “Irma” did, it would have been foreclosed on, and “Irma” and “William” possibly may have had a judgment against them in the event the home did not sell for a sufficient amount to cover the balance owed and related expenses of the sale. Foreclosures are known to generally sell for about 30% -40% less than a non-foreclosure. “William” would like to leave the home to “Irma’s” and “William’s” children as an inheritance. “Irma” is eager to receive her inheritance in the form of her parent’s homestead. “William” believes it only fair that “Irma’s” and “William’s” children have that same privilege. “William” put a lot of effort into initially acquiring the home, then puta tremendous amount of labor and material into the home in order that it be inhabitable for his family, then began remodeling once again in early 2010. The homestead has sentimental value. For example, there is a place on the wall by the kitchen where we have “marked” the heights of our grandchildren from the ages of 18 months to 13 years of age. “William” intentionally did not paint over it during remodeling in early 2010 after “Irma?” left. “William” has “homestead status” on the home. Agnew / Third Amended Pleading / Page 510/28/2011 f. “William” would like to rent all but one room in the home of which he would live in. “William” needs companionship anyway as everyone and not live alone, or for a period of time “William” could rent the entire home while keeping homestead status. g. Home prices have fallen in the past years due to the depressed housing market and it is harder and it takes longer to sell a home. The time that it would take to get the homestead in condition to sell and the fact that homes in this price range are generally on the market for 2 — 3 months would mean that our home would likely not sell for 4 - 5 months, during which time the mortgage, related bills and other costs to maintain the property would have to be paid to prevent foreclosure. A quick sale at a very low price would be unreasonable. In just a few years, most economists agree, home prices will began to appreciate and stabilize once again. h. “William” can use his knowledge in construction and residential real estate to get the home in good physical condition with less expense than what it otherwise may cost. i. “William” does not feel it would actually be like he would be receiving funds by remaining with the home since he has no desire to sell it. “William” believes it would be more reasonable to pay mortgage as an investment on a home than to pay rent. Election for Continued Health Coverage 24. William Harold Agnew elects to exercise option for Continued Health Insurance Coverage under the Texas Insurance Code §1251.308(a) and would respectfully ask the Court to order that “Irma” give written notice of such election to the group policy holder. Winkle v. Winkle,951 S.W. 2d 80, 90 (Tex. App.- Corpus Christie 1997). Agnew / Third Amended Pleading / Page 625. REIMBURSMENT CLAIMS Count One: Social Security Disability Benefits . The contributing estate is William Harold Agnew’s separate estate; . The benefiting estate is Irma Milicia Agnew’s separate estate; .. The contribution is William Harold Agnew’s Social Security Benefits; . William Harold Agnew asks that his separate estate be reimbursed; . William Harold Agnew requests that an equitable lien be placed against Irma Milicia Agnew’s separate estate in the name of William Harold Agnew to secure the reimbursement award. Social Security Benefits are pre-empted under Federal Law from being classified as community property. (see Richard v. Richard, 659 S.W. 2d 746, 749 (Tex. App. ~ Tyler 1983), (42 U.S.C. 407(a) - Social Security Act). “William” requests reimbursement of his Social Security Benefits of which he used to pay for two (2) years the mortgage principal, interest, taxes, hazard insurance, additional utilities and other household expenses that he otherwise would not have paid if it weren't for doing so to prevent foreclosure to the homestead and a possible judgment against “Irma” and ”William.” (see Exhibit R - 1 ) Arguments and Authorities - Reimbursements May Be Dollar per Dollar 26. (Payments of unsecured liability). If the contribution was a payment of an unsecured liability, the value of the contribution is equal to the payment. Texas PJC — family (2010) PJC 204.1 (Reimbursement - instructions and questions); see, e.g., Chacon v. Chacan, 222 S.W. 3d 222 S.W. 3d 909, 911-12 (Tex. App. — El Paso 2007); (dollar amount deducted from W’s paychecks for H’s IRS debt was reimbursable in full); McDaniel v. McDaniel, No. 03-03-00521 CV (Tex. App. — Austin 2004) (memo 3-18- 04) (Wife’s payment of debt, including taxes and credit card, was reimbursable dollar per dollar). (Payments to reduce principal of secured debt). If the contribution was a payment to reduce the principal of a secured debt, the value of the contribution is equal to the payment. See Texas PJC 204.1 (reimbursement — instruction and question). Agnew / Third Amended Pleading / Page 7 10/28/201127. 28. 10/28/2011 Count Two — Breach of Fiduciary Duty . The contributing estate is the community estate; . The benefiting estate is Irma Milicia Agnew’s separate leasehold estate; . The contribution is community income; . William Harold Agnew asks that the community estate be reimbursed; . William Harold Agnew requests an equitable lien against Irma Milicia Agnew’s separate estate to secure the reimbursement award; It was not necessary that “Irma” lease an apartment. She could have resided with her mother as did her sister is and is still, in the house she inherited as her separate property, and thus mitigated expenses from the community estate. Twenty Four (24) months x approximately 1,000.00 per month, cost of apartment = 24,000.00 to date. One half (4) that amount as reimbursement to the community estate = $12,000.00. Count Four — Breach of Fiduciary Duty . The contributing estate is the community estate; . The “waste” is to the community estate; . The contribution is community income; |. William Harold Agnew asks that the community estate be reimbursed; . William Harold Agnew requests an equitable lien against Irma Milicia Agnew’s separate estate to secure the reimbursement award; “William” began remodeling the homestead in the second (2") quarter of 2010 due to that “William” believed that “Irma” and “William” were going to reconcile and move back into the homestead, only “Irma” changed her mind. “William” halted the remodeling due to that he could not afford to finish the remodeling and also pay the mortgage and related expenses. The house Agnew / Third Amended Pleading / Page 829. g. remained in a partial remodeled condition. Had “William” been able to rent the rooms the rent revenue would have totaled to approximately $1,000 per month x twenty four (24) months = $24,000.00 to date. One half (4) that amount as reimbursement to the community estate = $12,000.00. Count Five — Loan Guarantee and Insurance on Daughter’s Car a. The benefiting estate is “Irma’s” separate estate; The contributing estate is “William’s” separate estate ; The contribution is from the community estate; “William” asks that the community estate be reimbursed; William Harold Agnew requests an equitable lien against Irma Milicia Agnew’s separate estate to secure the reimbursement award; william” and “Irma” agreed and did take out a loan with RBFCU to purchase their daughter who is in college a car for the cost of $8,000.00. Three months later “Irma” abandoned William’ leaving him to pay for the loan on the car and insurance on the car by taking her community income from the community. ”William” requests that “Irma” reimburse "William” for one half ¥ of the amount of the loan of $8,000 = $4,000 plus one half ¥2 the amount of the insurance on the car of $2,700 = $1,350 - ($75.00 x 36 months). $4,000 + $1,350 = $5,350.00 in Total. Count Six — Separate Property Brought into Marriage a. The contributing estate is William Harold Agnew’s separate estate; b. The benefiting estate is the community estate; ¢. The contribution is William Harold Agnew’s separate estate; d. William Harold Agnew asks that his separate estate be reimbursed; Agnew / Third Amended Pleading / Page 9 10/28/201130. e. William Harold Agnew requests an equitable lien against Irma Milicia Agnew’s separate estate to secure the reimbursement award; f. Automobiles that “William” brought into the marriage, one (1) Ford Mustang and one (1) Chevrolet Malibu, with Fair Market Values adjusted for today’s prices being $6,500 and 3,100, respectfully, totaling approximately $9,100.00. Separate Cause of Action - Tort ‘Count Five - Intentional Infliction of Emotional Distress g. William Harold Agnew, herein after referred to as “William” brings suit against Irma Milicia Agnew, herein after referred to as “Irma,” in “William’s” individual capacity. h. “Irma’s” conduct in “Irma’s” and “William’s” one and only marriage of thirty six (36) years suddenly and drastically changed. “Irma” became so extremely hateful, abusive, deceptive and ruthless towards “William,” and such conduct was intentional and reckless. i, “Irma’s” conduct was extreme and outrageous in numerous ways. “Irma” continued to intentionally and recklessly treat “William” with extreme indignities, hate, secrecy and the list goes on, while “William” was trying so hard to be nice and polite. “Irma” would tell “William” extremely insulting and hurtful things to his face. j. “Irma’s” conduct proximately caused severe emotional distress to “William.” “William” became traumatized, depressed, anxious and emotionally debilitated. k. “William’s” severe emotional distress cannot be remedied by any other cause of action. There were so many things and ways that “Irma” hurt “William” he feels he will never feel whole again. 1. “Irma” wrongful conduct proximately caused the following damages: General Damages, Special Damages and Exemplary Damages: m. Plaintiff seeks unliquidated damages within the jurisdictional limits of this court. Agnew / Third Amended Pleading / Page 101 10/28/201131. 32. Arguments and Authorities n. In Hoffman-La Roche, Inc., the Texas Supreme Court suggests that a plaintiff is not barred from bringing an IIED claim if there is an “independent” set of facts that would support the claim. See Hoffman-La Roche, Inc., 144 S.W. 3d at 450. Conclusion William Harold Agnew as Respondent, Counterpetitioner and Counterclaimant asks this court after considering all the evidence and facts to grant him relief as requested herein requested or otherwise is entitled to after all the evidence is in for all claims herein. Prayer For these reasons, Respondent, “William” asks the court to render judgments in and of this divorce suit of the division of property in favor of “William” as he shows himself entitled as well as reimbursement and Tort claim, and rule that petitioner, Irma Milicia Agnew take nothing, assess costs against petitioner, and award all other relief to which William Harold Agnew is entitled to and asks for the following unliquidated damages within the jurisdictional limits of this Court. a. General Damages; b. Special Damages: Personal Injury Damages; Future Mental and Emotional Pain and Suffering, Future Loss of Credit Reputation, Future Loss of Earning Capacity, Future Medical and Mental Expenses, Loss of Family Companionship. Personal Property Damages; Loss of Use. Real Property Damages; Actual (Intrinsic) Value of Improvements, Cost of Repair of Improvements, Loss of Use of Improvements, Loss of Use of Land. Contractual Damages; Expectancy in Lost Profits and community income; Reliance; and Restitution. c. Exemplary Damages d. Prejudgment and postjudgment interest. e. Court costs; f. All other relief to which Respondent/Counterpitioner/Counterclaimant is entitled. Agnew / Second Amended Pleading / Page 11 10/28/2011Agnew / Second Amended Pleading / Page 12 10/28/2011 Respectfully submitted, WILLIAM HAROLD AGNEW 1906 Inverness Blvd. Austin, Texas 78745 Ph. 512-810-2605 Fax 512-707-1214 By: LL (a WILLIAM HAROLD AGNEW, PRO SE, TX DL 016, SS# 5068VERIFICATION STATE OF TEXAS § TRAVIS COUNTY § Before me, the undersigned notary, on this day personally appeared William Harold Agnew, a person whose identity is known to me. After I administered an oath to him, upon his oath he said he read his Original Answer, Third Amended Pleading with Counterpetition, Claims for Reimbursements, and Separate Tort Action in No. D-1- FM-10-005425 and that the facts stated in it are within his personal knowledge and are true and correct. William Harold Agnew, Sworn to and subscribed before me by William Harold Agnew, on /G-2¢ -<0// , 20 //. the State g My commission expires: @-67~/5 Notary Public, State of Tscas of ity Commiasion Expires. GS GILLIAN M. L. DREESEN | “itset/ sept or aot 10/28/201110/28/2011 EXHIBIT R-1, pagel NO. D-1-FM-10-005425 SPREADSHEET FOR REIMBURSMENT CLAIM FOR SOCIAL SECURITY DISABLITY BENEFITS William Harold Agnew’s spreadsheet indicating that his Social Security Benefits were used to pay mortgage and related expenses for the sole reason to keep Homestead from Foreclosure and prevent possible judgment against Irma Agnew and William Agnew for possible loss on property in the event of foreclosure had he left homestead as did “Irma.” “William only occupied one room of the home with limited use of kitchen and bathroom with defective appliances and unfinished electrical, etc., for two (2) years, after Irma Agnew abandoned William Agnew. The home has been in a state of being half remodeled and with defective or no appliances for two years. The “Use and Enjoyment” of the one room’s FMV would normally be $450.00 per month, however, deducting $100.00 for the sub-standard condition: $450.00 minus $100.00 = Real FMV $350.00 per month, in “William’s” calculation and belief. Monthly Income and Expenses for William Agnew for past two years, (see bank statement) indicating there could not have been any amount of community property funding, in William Agnew’s possession, sufficient to cover mortgage and related expenses, without William Agnew using his Social Security Disability Benefits for mortgage and related expenses, which is the reimbursement requested: (Please See Next Page) Page 1 of 210/28/2011 EXHIBIT R-1, page2 NO. D-1-FM-10-005425 SPREADSHEET FOR REIMBURSMENT CLAIM FOR SOCIAL SECURITY DISABLITY BENEFITS Income Disability: 1. Metlife $1,500 2. Social Security 753 Total Income $2,253 Necessaries, Non Home Related Expenses (3 — 6) 3. Food, Hygienic, and Clothes, (30 Days x $20.00 ) $600 4, Car Payment - Daughter's Car 200 5. Car upkeep - William Agnew 75 6. Car Insurance - William Agnew 75 Necessaries, Home Related Expenses (7 — 16) 7, Phone and Internet 75 8. Utilities 260 9, Maintenance in general, house and yard 70 10. Primary Mortgage Payment = $816 (includes related costs below) 12. Toward Principal 100 13. Toward Interest on principal: 395 14, Toward Property Taxes 200 15. Toward Hazard Insurance 120 16. Interest toward Home Eq. Loan 85 Total All Necessaries $2,255 (see below) Home related expenses (#7 — #16) = $1,305, less FMV $350.00 as cost of One Room Rental (page 1) = $1,305.00 2350.00 $955.00 amount William Agnew could have saved but instead went to pay on homestead to prevent foreclosure since Irma Agnew abandoned on November 15, 2009. $753.00 per month was in form of Social Security Benefits of which William Agnew requests reimbursement. [ 24 months x $753.00 = $18,072, reimbursable amount. | Page 2 of 210/28/2011 CERTIFICATE OF SERVICE 1 certify that a copy of William Harold Agnew’s Proposed Disposition of | Issues, Inventory and Appraisement, Second Amended Pleading and Motion for Leave to Amend Pleading was served upon Petitioner, Irma Milicia Agnew in NO, D-1-FM-10-005425 by and through her attorneys, Margaret Tucker and Catherine Mauzy, 1150 Lavaca, Austin, Texas 78701, by Certified Mail #7008 2810 0000 9537 4141, on( Ae 1 EM, : 2oV// ; and by facsimile on Led, Ce Z 2.64% 20f /. a, WILLIAM HAROLD AGNEW, PRO SE LITIGANT