in Re Mercedes Martinez
Opinion
ACCEPTED 14-15-00585-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 11:10:01 AM CHRISTOPHER PRINE CLERK
NO. 14-15-00585-CV
IN THE FOURTEENTH COURT OF APPEALS FILED IN 14th COURT OF APPEALS AT HOUSTON, TEXAS HOUSTON, TEXAS 7/28/2015 11:10:01 AM CHRISTOPHER A. PRINE Clerk
In re Mercedes Martinez, Relator
REAL PARTY IN INTEREST'S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
AGAINST THE HONORABLE JOHN SCHMUDE JUDGE 247rn DISTRICT COURT, HARRIS COUNTY, TEXAS
THE ENOS LAW FIRM, P.C.
Christina S. Tillinger Bar No. 24003058 17207 Feather Craft Lane Webster, TX 77598 Telephone: 281.333.3030 Fax: 281.488.7775 E-mail: christina@enoslaw.com
ORAL ARGUMENT REQUESTED Identity of Parties and Counsel
The following is a list of all parties and all counsel in this matter:
1. Relator in this matter is Mercedes Martinez, who is the Respondent in the underlying case described below. The attorneys representing Relator in the trial court and in this mandamus action are:
Mr. Sean M. Reagan Leyh, Payne & Mallia, PLLC State Bar No. 24046689 9545 Katy Freeway, Suite 200 Houston, Texas 77024 Tel: 713-785-0881 Fax: 713-784-0338
2. Respondents in this matter are the Honorable John Schmude, Judge ofthe 24 7th District Court of Harris County, Texas and the Hon. Thomas 0. Stansbury, Visiting Judge.
4. The Real Party in Interest in this case is Hisham Ahmed, and he is represented by:
Greg B. Enos (counsel on mandamus action) State Bar No. 06630450 Christina Tillinger (counsel before the trial court) State Bar No. 24003058 The Enos Law Firm, P.C. 17207 Feather Craft Lane Webster, Texas 77598 Telephone: 281.333 .3030 Facsimile: 281.488.7775 Table of Contents Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument .............................................................. 1
1. How Orders Are Entered in Family Court .......................... 2
2. Facts Ms. Martinez Did Not Include in Her Petition ................. 3
3. Undisputed Facts ............................................. 4
4. The Divorce Decree is Not Void, so Ms. Martinez Cannot Collaterally Attack It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Martinez Cites Cases on Orders Based on Mediation Agreements and on "Agreed" Orders Which Are Not Applicable to The Facts of this Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Trial Court Did Not Refuse to Honor the Mediated Settlement Agreement When it Entered the 2013 Divorce Decree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. The Cases on "Agreed Orders" Cited by Martinez Simply Do Not Apply to the Facts of This Case ................ 7
6. It Does Not Matter that Ms. Martinez Did Not Sign the Judgment . . . . . . 8
7. Lack of Consent Does Not Render a Judgment Void ................. 8
8. Allowing a Party Who Did Not Attend an Entry Hearing, Who Did Not Seek a New Trial or Appeal to Years Later Collaterally Attack a Divorce Decree is Very Bad Public Policy . . . . . . . 10
9. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Request for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Word Count Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Court's Docket Sheet .......................................... TAB A
Response to Motion to Set Aside Judgment and Order for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB B
Affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
lll Index of Authorities
Biaza v. Simon, 879 S.W.2d 349, 354 (Tex. App.-Houston [14th Dist.] 1994, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9
Blackburn v. Blackburn, 02-12-00369-CV (Tex. App. - Fort Worth, 5/7/2015, no writ hist.)(mem. op.) ................................. Page 8
Brennan v. Greene, 154 S.W.2d 523, 526 (Tex. Civ. App. - San Antonio 1941, writrefd) ..................................... Page 9
Burnaman v. Heaton, 240 S.W.2d 288 (Tex. 1951) ......................... Page 8
Campbell v. Campbell, 02-12-00313-CV (Tex. App. - Fort Worth, 5/15/2014, no pet. hist.)(mem. op.) ................................. Page 2
City ofHouston v. Anchor-Hocking Glass Corporation, 467 S.W.2d 677 (Tex. Civ. App. - Houston [1st Dist.] 1971, ref. n.r.e.) ................ Page 8
Grivel v. Atlantic Mut. Ins. Co., 513 S.W.2d 297 (Tex. Civ. App. - Corpus Christi 197 4, writ ref d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8
Hagen v. Hagen, 282 S.W.3d 899 (Tex.2009) ............................. Page 5
In re Lee, 411 S.W.3d 445 (Tex. 2014) ................................... Page 6
Lemonds v. Le, No. 05-99-01156-CV (Tex.App-Dallas Apr. 11, 2000, no pet.) ... Page 8
Marrs & Smith P'ship v. D.K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1 (Tex. App. - El Paso 2005, pet. denied) ............................. Page 2
Milner v. Milner, 361 S.W.3d 615 (Tex. 2012) ............................. Page 7
Philipp v. Tex. Dep't of Family & Protective Servs., No. 03-11-00418-CV (Tex. App. -Austin 4/4/ 2012, no pet.) (mem. op.) . Page 7
PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex., 2012) ................... Page 6, 9
Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003) ............................ Page 5
Sandoval v. Rattikin, 395 S.W.2d 889 (Tex. Civ. App. - Corpus Christi 1965, writ refd n.r.e.), cert. denied, 385 U.S. 901, 87 S.Ct.
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ACCEPTED 14-15-00585-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/28/2015 11:10:01 AM CHRISTOPHER PRINE CLERK
NO. 14-15-00585-CV
IN THE FOURTEENTH COURT OF APPEALS FILED IN 14th COURT OF APPEALS AT HOUSTON, TEXAS HOUSTON, TEXAS 7/28/2015 11:10:01 AM CHRISTOPHER A. PRINE Clerk
In re Mercedes Martinez, Relator
REAL PARTY IN INTEREST'S RESPONSE TO PETITION FOR WRIT OF MANDAMUS
AGAINST THE HONORABLE JOHN SCHMUDE JUDGE 247rn DISTRICT COURT, HARRIS COUNTY, TEXAS
THE ENOS LAW FIRM, P.C.
Christina S. Tillinger Bar No. 24003058 17207 Feather Craft Lane Webster, TX 77598 Telephone: 281.333.3030 Fax: 281.488.7775 E-mail: christina@enoslaw.com
ORAL ARGUMENT REQUESTED Identity of Parties and Counsel
The following is a list of all parties and all counsel in this matter:
1. Relator in this matter is Mercedes Martinez, who is the Respondent in the underlying case described below. The attorneys representing Relator in the trial court and in this mandamus action are:
Mr. Sean M. Reagan Leyh, Payne & Mallia, PLLC State Bar No. 24046689 9545 Katy Freeway, Suite 200 Houston, Texas 77024 Tel: 713-785-0881 Fax: 713-784-0338
2. Respondents in this matter are the Honorable John Schmude, Judge ofthe 24 7th District Court of Harris County, Texas and the Hon. Thomas 0. Stansbury, Visiting Judge.
4. The Real Party in Interest in this case is Hisham Ahmed, and he is represented by:
Greg B. Enos (counsel on mandamus action) State Bar No. 06630450 Christina Tillinger (counsel before the trial court) State Bar No. 24003058 The Enos Law Firm, P.C. 17207 Feather Craft Lane Webster, Texas 77598 Telephone: 281.333 .3030 Facsimile: 281.488.7775 Table of Contents Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument .............................................................. 1
1. How Orders Are Entered in Family Court .......................... 2
2. Facts Ms. Martinez Did Not Include in Her Petition ................. 3
3. Undisputed Facts ............................................. 4
4. The Divorce Decree is Not Void, so Ms. Martinez Cannot Collaterally Attack It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Martinez Cites Cases on Orders Based on Mediation Agreements and on "Agreed" Orders Which Are Not Applicable to The Facts of this Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The Trial Court Did Not Refuse to Honor the Mediated Settlement Agreement When it Entered the 2013 Divorce Decree. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. The Cases on "Agreed Orders" Cited by Martinez Simply Do Not Apply to the Facts of This Case ................ 7
6. It Does Not Matter that Ms. Martinez Did Not Sign the Judgment . . . . . . 8
7. Lack of Consent Does Not Render a Judgment Void ................. 8
8. Allowing a Party Who Did Not Attend an Entry Hearing, Who Did Not Seek a New Trial or Appeal to Years Later Collaterally Attack a Divorce Decree is Very Bad Public Policy . . . . . . . 10
9. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Request for Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Certificate of Word Count Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
11 Appendix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Court's Docket Sheet .......................................... TAB A
Response to Motion to Set Aside Judgment and Order for Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . TAB B
Affidavit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
lll Index of Authorities
Biaza v. Simon, 879 S.W.2d 349, 354 (Tex. App.-Houston [14th Dist.] 1994, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 9
Blackburn v. Blackburn, 02-12-00369-CV (Tex. App. - Fort Worth, 5/7/2015, no writ hist.)(mem. op.) ................................. Page 8
Brennan v. Greene, 154 S.W.2d 523, 526 (Tex. Civ. App. - San Antonio 1941, writrefd) ..................................... Page 9
Burnaman v. Heaton, 240 S.W.2d 288 (Tex. 1951) ......................... Page 8
Campbell v. Campbell, 02-12-00313-CV (Tex. App. - Fort Worth, 5/15/2014, no pet. hist.)(mem. op.) ................................. Page 2
City ofHouston v. Anchor-Hocking Glass Corporation, 467 S.W.2d 677 (Tex. Civ. App. - Houston [1st Dist.] 1971, ref. n.r.e.) ................ Page 8
Grivel v. Atlantic Mut. Ins. Co., 513 S.W.2d 297 (Tex. Civ. App. - Corpus Christi 197 4, writ ref d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . Page 8
Hagen v. Hagen, 282 S.W.3d 899 (Tex.2009) ............................. Page 5
In re Lee, 411 S.W.3d 445 (Tex. 2014) ................................... Page 6
Lemonds v. Le, No. 05-99-01156-CV (Tex.App-Dallas Apr. 11, 2000, no pet.) ... Page 8
Marrs & Smith P'ship v. D.K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1 (Tex. App. - El Paso 2005, pet. denied) ............................. Page 2
Milner v. Milner, 361 S.W.3d 615 (Tex. 2012) ............................. Page 7
Philipp v. Tex. Dep't of Family & Protective Servs., No. 03-11-00418-CV (Tex. App. -Austin 4/4/ 2012, no pet.) (mem. op.) . Page 7
PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex., 2012) ................... Page 6, 9
Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex.2003) ............................ Page 5
Sandoval v. Rattikin, 395 S.W.2d 889 (Tex. Civ. App. - Corpus Christi 1965, writ refd n.r.e.), cert. denied, 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132 (1966) .......................................... Page 8
Sawyer v. Smith, 522 S.W. 2d 936, 939-40 (Tex.App.- Waco 1977, writ refd n.r.e) ............................ Page 9
lV Scruggs v. Linn, 443 S.W.3d 373 (Tex. App. - Houston [14th Dist.] 2014, no pet.) . Page 7
Stein v. Stein, 868 S.W.2d 902 (Tex. App. - Houston [14th Dist.] 1994, no writ) .. Page 8
Wallace v. McFarlane, No. 01-10-00368-CV (Tex. App. - Houston [Pt Dist.] 8/22/2013, no pet. hist.)(mem. op.) ........................ Page 3
Statutes
Texas Family Code Sec 153.0071. ....................................... Page 6
v Issue Presented Is a divorce decree based on a mediated settlement agreement void because one party
(who did not attend the trial court's entry hearing) did not sign the order and over two years
later complains that the order does not comply with the mediated settlement agreement?
Statement of Facts The underlying case is an enforcement action of a 2013 divorce decree. Mr. Ahmed
wanted to travel with his seven year old son to visit family in Egypt. The mother, Ms.
Martinez, refused to sign a consent to international travel and Mr. Ahmed filed an
enforcement action to make her sign. The Hon. Judge John Schmude on June 24, 2015
ordered Ms. Martinez to sign the consent form by 5 :00 p.m. on June 26, 2015 but she refused
to do so. A second Motion for Enforcement was filed to enforce the June 24th order. On July
7, 2015, the visiting judge, the Hon. Thomas Stansbury, ordered Ms. Martinez to sign the
consent form in court immediately but then reconsidered and ordered Martinez to appear
before Judge Schmude on July 13, 2015 to consider the argument made by counsel for
Martinez. The July 13 hearing was stayed by an order of this court.
Mr. Ahmed was able to fly to Egypt with his son without the consent form. He is
scheduled to return with his son on July 29 and he wants the signed consent form to make sure
there are no problems returning to Texas with the child.
Argument The question presented to this court is of importance to the parties (who think they
were divorced in 2013), but it is of huge importance to the operation of family courts in
Texas, where orders and divorce decrees are routinely entered without signatures of all parties
or counsel at or after properly noticed entry hearings.
1 This court is asked by Ms. Martinez to rule that final judgments that were never
appealed or directly attacked can be ruled void years later simply because a party did not sign
or approve the order, failed to attend the entry hearing when the order was submitted to the
judge and failed to complain at the time that the order allegedly deviated from the mediated
settlement agreement upon which it is based.
1. How Orders Are Entered in Family Court
Judges in Texas almost never prepare their own orders. One of the attorneys in a case
is directed to draft an order based on the judge's ruling or the agreement of the parties. An
entry hearing is set by the court which serves as a deadline to get the order turned into the
court. If all parties agree on the order, they can sign the order and submit it to the court
without appearing in court. If there is a dispute over the form of the order, attorneys (and
often parties) appear at the entry hearing to make their arguments to the judge and get a ruling
on what the order should say. 1
In a divorce case, one or both parties must appear before the court to provide testimony
that allows the court to grant the divorce and at that "prove up" appearance, either an order
that has already been agreed to is submitted or the judge schedules an entry date.
Campbell v. Campbell, 02-12-00313-CV (Tex. App. - Fort Worth, 5/15/2014, no pet.
hist.)(mem. op.), is an example of the entry of a divorce decree following settlement at
mediation. There, the parties settled at mediation and the husband filed a motion to enter
judgment based on the mediated settlement agreement. The wife did not appear at the
hearing, but her attorney did and the judge signed the divorce decree without the wife signing
the order. On appeal, the Court of Appeals refused to set aside the divorce decree.
An example of this process in a non-family case happened in Marrs & Smith P'ship v. D.K. Boyd Oil & Gas Co., Inc., 223 S.W.3d 1, 14 (Tex. App. - El Paso 2005, pet. denied). The judge conducted a trial, sent counsel his ruling and conducted an entry hearing to make sure the judgment conformed with his ruling. The parties and their lawyers attended and made their arguments on what the order should have said. 2 Wallace v. McFarlane, No. 01-10-00368-CV (Tex. App. - Houston [Pt Dist.]
8/22/2013, no pet. hist.)(mem. op.) is another example of this process:
After over four years of acrimonious divorce proceedings, Wallace and Mcfarlane eventually entered into a binding, mediated settlement agreement (MSA) on November 4, 2009. At a hearing on November 25, 2009, the trial court approved the MSA and asked Mcfarlane's counsel to prepare a draft of the decree based its terms. Mcfarlane and Wallace's respective counsels exchanged at least five drafts of the proposed decree over the course of the next month. Although the parties disagreed about some of the terms included in the initially-circulated drafts of the decree, no attempt was made to arbitrate any of these disputes prior to the entry hearing.
The trial court held an entry hearing on December 29, 2009. At that hearing, the parties informed the trial court that they were generally in agreement with respect to the terms of the proposed decree, with three or four exceptions that they wanted to discuss. According to Wallace, the latest draft decree circulated by Mcfarlane contained numerous unauthorized changes to the parties' MSA. Attorneys for both parties and the amicus attorney representing the children discussed the challenged portions of the decree with the trial court and made hand-written changes to Mcf arlane's latest draft.
During one such discussion, Wallace informed the trial court that the parties had agreed to arbitrate any disputes regarding the drafting and execution of the MSA and that she was reserving her right to arbitrate these disputes. Wallace did not, however, ask for a continuance or ask the trial court to refrain from signing a final divorce decree pending such arbitration. On the contrary, Wallace's counsel advised the court that a final decree could still be signed that day and that if the arbitrator later determined that the decree differed from the terms agreed to in the MSA, he would simply file a motion for judgment nunc pro tune to correct the error. At the end of the hearing, counsel for Wallace, Mcfarlane, and the children initialed each page of the decree with the hand-written interlineations, and signed that version of the decree "approved as to form." The trial court signed the decree that same day.
2. Facts Ms. Martinez Did Not Include In Her Petition
The Petition for Writ of Mandamus filed by Ms. Martinez includes inflammatory (and
largely nonrelevant) allegations and argument of the sort usually aimed at juries rather than
at justices on courts of appeals. However, there are a few facts Ms. Martinez failed to
mention in her petition, including:
• On October 14, 2013, the date assigned for trial, the judge heard the testimony
of the parties and granted a divorce based on the parties' mediated settlement
agreement. The Child Support Division of the Texas Attorney General was a
3 party to the suit and did not appear, so a "default" was taken as to the O.A.G.
The court set an entry hearing for November 4, 2013. 2
• Counsel for Mr. Ahmed drafted the divorce decree and sent it to counsel for
Ms. Martinez, who requested several changes to the order. All of the changes
to the draft decree requested by Ms. Martinez's lawyer were made. The lawyer
for Ms. Martinez never complained or mentioned that the divorce decree did
not contain the provision Ms. Martinez now complains is missing regarding
consent to travel. 3
• On November 4, 2013, counsel for Mr. Ahmed appeared at the entry hearing
but the lawyer for Ms. Martinez did not. The judge instructed counsel to leave
the proposed order with the court. Later that morning, the two lawyers ran into
each other and Mr. Ahmed's lawyer told Ms. Martinez's lawyer what had
happened at the entry hearing she had missed. The lawyer for Ms. Martinez
promised to go by the court and sign the order, but she never did. 4 Judge
Bonnie Hellums signed the order submitted by Mr. Ahmed's counsel on
November 12, 2013, eight days after the entry hearing.
3. Undisputed Facts
It is undisputed that: • The trial court in 2013 had jurisdiction over the divorce case and the parties.
• The final decree of divorce was signed on November 12, 2013 and the trial
court's plenary power long ago expired.
2 Affidavit of Christina S. Tillinger, attached in Appendix- Tab B 3 Affidavit of Christina S. Tillinger, attached in Appendix - Tab B 4 Affidavit of Christina S. Tillinger, attached in Appendix - Tab B
4 • Ms. Martinez did not file a motion for new trial or appeal the November 12,
2013 divorce decree.
• Ms. Martinez has not filed a petition for bill of review to challenge the 2013
divorce decree.
• Ms. Martinez has not filed a motion for judgment nunc pro tune alleging that
the omission of the consent to travel provision was a "clerical error."
• This mandamus arises from a collateral attack made by Ms. Martinez on the
2013 divorce decree in which she seeks to avoid enforcement of the decree
because she claims it is void.
• Ms. Martinez in 2013 did not object to the trial court at the time about the
alleged omission from the divorce decree of the consent to travel provision she
complains about now.
4. The Divorce Decree is Not Void, so Ms. Martinez Cannot Collaterally Attack It
Ms. Martinez did not request a new trial or appeal the 2013 divorce decree, nor has she
filed a bill of review or sought an order nunc pro tune to correct an alleged "clerical error."
Instead, she is mounting a collateral attack on the 2013 judgment. The Texas Supreme Court
has made it clear:
As with other final, unappealed judgments which are regular on their face, divorce decrees and judgments are not vulnerable to collateral attack. The decree must be void, not voidable, for a collateral attack to be permitted. Errors other than lack of jurisdiction over the parties or the subject matter render the judgment voidable and may be corrected only through a direct appeal.
Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex.2009)(citations omitted); Reiss v. Reiss,
118 S.W.3d 439, 443 (Tex.2003).
The Texas Supreme Court in 2012 very clearly explained the difference between a void
and a voidable judgment and a direct attack and a collateral attack:
5 Because there is some inconsistency in our state's jurisprudence concerning important distinctions between void and voidable judgments and direct and collateral attacks, we begin our analysis with a discussion of clarifying principles. It is well settled that a litigant may attack a void judgment directly or collaterally, but a voidable judgment may only be attacked directly. A direct attack-such as an appeal, a motion for new trial, or a bill of review-attempts to correct, amend, modify or vacate a judgment and must be brought within a definite time period after the judgment's rendition.
A void judgment, on the other hand, can be collaterally attacked at any time. A collateral attack seeks to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes. After the time to bring a direct attack has expired, a litigant may only attack a judgment collaterally.
The distinction between void and voidable judgments is critical when the time for a direct attack has expired. Before then, the distinction is less significant because-whether the judgment is void or voidable-the result is the same: the judgment is vacated. We have described a judgment as void when "the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act. "
PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271-2 (Tex., 2012)(citations omitted)
5. Martinez Cites Cases on Orders Based on Mediation Agreements and on" Agreed" Orders Which Are Not Applicable to The Facts of this Case. Martinez cites many cases that say a court must enter an order based on a mediated
settlement agreement and a court cannot enter an "agreed" order after one party revokes
consent. None of those cases are germane to the facts of this case.
A. The Trial Court Did Not Refuse to Honor the Mediated Settlement Agreement When it Entered the 2013 Divorce Decree. Martinez cites In re Lee, 411 S.W.3d 445 (Tex. 2014) and other cases that have held
that Tex. Family Code Sec. 153.0071 prevents a trial court from substituting its judgment for
the terms of the mediated settlement agreement. That is indeed what Lee and the other cases
Martinez cites held, but they have no application to this case. In those cases, such as Lee, the
parties settled at mediation and then the trial court refused to honor the terms of their
settlement or added provisions that were not in the MSA and a party appealed or, as in Lee,
sought a writ of mandamus while the case was pending because the judge would not enter a
final order.
6 In this case, the trial judge did not substitute her judgment for the terms of the mediated
settlement agreement or refuse to accept the M.S.A. In fact, the trial court conducted a
hearing, heard testimony and accepted the terms of the mediated settlement agreement and
scheduled an entry hearing for an order based on the M.S.A.
The complaint made by Ms. Martinez is that the trial court in 2013 signed an order (that
she did not object to at the entry hearing or appeal) which she now contends two years later
does not comply with the terms of the mediated settlement agreement. In contrast, for
example, Philipp v. Tex. Dep't of Family & Protective Servs., No. 03-11-00418-CV (Tex.
App. -Austin 4/4/ 2012, no pet.) (mem. op.) cited by Martinez involved parents who appealed
and made a direct attack on a final order because it did not comply with a mediated settlement
agreement. Martinez failed to appeal the 2013 divorce decree and so that case does not apply
here.
Scruggs v. Linn, 443 S.W.3d 373 (Tex. App. - Houston [141h Dist.] 2014, no pet.) cited
several times by Martinez likewise involved an appeal (a direct attack) on a final modification
order which one parent argued did not comply with a mediated settlement agreement. That is
not the situation here and Scruggs does not hold that an order that deviates from a mediated
settlement agreement is void.
Likewise,Milnerv. Milner, 361 S.W.3d615 (Tex. 2012)reliedon by Martinez involved
a direct appeal of a divorce decree that deviated from the terms of the mediated settlement
agreement. In fact, NONE of the cases cited by Martinez which hold that a court's order
cannot deviate from a mediated settlement agreement held such orders to be void and open to
collateral attack.
B. The Cases on "Agreed Orders" Cited by Martinez Simply Do Not Apply to the Facts of This Case. Martinez cites some of the many cases that have held that a court cannot enter an
"agreed" order if a party has previously withdrawn its consent to the settlement. For example,
7 Burnaman v. Heaton, 240 S.W.2d 288 (Tex. 1951) did indeed state that,"when consent is
lacking at the time the agreed judgment is rendered, the judgment is void and must be set
aside." However, Burnaman involved an appellant who had revoked her consent on the
record before judgment was entered and it involved an appeal, a direct attack on the judgment.
Likewise, Stein v. Stein, 868 S.W.2d 902 (Tex. App. -Houston [14th Dist.] 1994, no writ) dealt
with a party who had filed a revocation of her consent to the agreed judgment in writing prior
to the entry of the judgment. Ms. Martinez never revoked her consent to the mediated
settlement agreement prior to the judge's rendition and acceptance of the settlement. This case
involves an entirely different complaint - that the order supposedly does not comply with the
mediated settlement agreement (an argument Martinez waived by not appearing at the entry
hearing or filing a motion for new trial or appeal).
6. It does Not Matter that Ms. Martinez Did Not Sign the Judgment
It is not a condition precedent to the proper entry of a judgment for a party or opposing counsel to approve the judgment as to form prior to its entry by the trial court. This is a matter
of professional courtesy and its lack of approval as to form does not render such entry of the
judgment invalid. Sandoval v. Rattikin, 395 S.W.2d 889 (Tex. Civ. App. - Corpus Christi,
1965, writ refd n.r.e.), cert. denied, 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132 (1966); City
ofHouston v. Anchor-Hocking Glass Corporation, 467 S.W.2d 677 (Tex. Civ. App. - Houston
[1st Dist.] 1971, ref. n.r.e.); Grivel v. Atlantic Mut. Ins. Co., 513 S.W.2d 297 (Tex. Civ. App.
- Corpus Christi 1974, writ refd n.r.e.)
Blackburn v. Blackburn, 02-12-00369-CV (Tex. App. - Fort Worth, 5/7/2015, no writ
hist.)(mem. op.) is an example of a divorce decree based on a MSA that was upheld even
though neither spouse signed or approved the divorce decree.
7. Lack of Consent Does Not Render a Judgment Void
Lemonds v. Le, No. 05-99-01156-CV (Tex.App-Dallas Apr. 11, 2000, no pet.) Agreed
8 judgments have the same binding force and effect as judgments resulting from a trial before
the court or the jury and are subject to collateral attack only if the rendering court did not have
jurisdiction to render the judgment. (citing Biaza v. Simon, 879 S.W.2d 349, 354 (Tex.
App.-Houston [141h Dist.] 1994, writ denied))).
An agreed judgment might be erroneous ifrendered without the agreement of a party,
but "consent" is not jurisdictional, an an asserted lack of consent does not render the judgment
void.
Two Texas cases have addressed this issue, and both have correctly concluded that
arguments regarding a lack of consent must be raised by appeal or bill of review. If Melgar
"wished to contend that he did not in fact agree to the judgment, he would have to [have]
do[ ne] so by a direct attach upon the judgment and [could] not do so in a collateral
proceeding." Brennan v. Greene, 154 S.W.2d 523, 526 (Tex. Civ. App. - San Antonio 1941,
writ ref'd); see also Sawyer v. Smith, 522 S.W. 2d 936, 939-40 (Tex.App.- Waco 1977, writ
ref d n.r .e) (stating that " [a] valid consent judgment cannot be rendered by a direct attach upon
the judgment and cannot do so in a collateral proceeding").
An agreed judgment might be erroneous if rendered without the agreement of a party,
but "consent" is not jurisdictional, and an asserted lack of consent does not render the
judgment void. Absence of consent does not establish that "the court rendering judgment had ;
no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction
to enter the particular judgment, or no capacity to act." PNS Stores, 379 S.W.3d at 272.
A party wishing to contend that he did not consent to an agreed judgment must do so
by appeal or by bill ofreview. Brennan v. Greene, 154 S.W. 2d 523, 526 (Tex.Civ. App. - San
Antonio 1941, writref'd); Sawyerv. Smith, 552 S.W. 2d 936, 939-40 (Tex. App. -Waco 1977,
writ ref'd n.r.e). He "cannot do so in a collateral proceeding." Sawyer, 522 S.W.2d at 939-40.
9 8. Allowing a Party Who Did Not Attend an Entry Hearing, Who Did Not Seek a New Trial or Appeal to Years Later Collaterally Attack a Divorce Decree is Very Bad Public Policy
All parties to a lawsuit benefit from finality when a case ends with a final order. This
is particularly true in divorce cases, because divorced former spouses rely on the final terms
of the divorce decree when they remarry, make decisions for their children, pay child support
or dispose of property awarded to them.
It would be calamitous to most former spouses if their divorce decrees could be
challenged years later simply because one spouse refused to sign the order or attend variance
between the decree and the settlement agreement it is based on.
9. Conclusion
The Honorable Thomas 0. Stansbury engaged in no action that could be subject to a
Mandamus, as he deferred all rulings to The Honorable John Schmude.
Ms. Martinez cannot collaterally attach the 2013 divorce decree because it is not void.
Judge Schmude thus did not abuse his discretion and the application for writ of mandamus
should be denied.
10. Request for Relief
Real party in interest requests that this Court deny the petition for writ of mandamus and
for such other and further relief to which Relator may be entitled.
Respectfully submitted,
Christirnf&--+iltmger ) Bar No. 24003058 ,___-/ Christina@.enoslaw.com --- 10 VERIFICATION
I swear under oath that the factual allegations in the above Real Party In Interest Response to Petition for Writ of Mandamus are within my personal knowledge and are true and correct.
Christina-S-:4'il1inge1> 7
-· """'\.rl SIGNED under oath before me on=--)\J\ y ·~J ) , 2015.
Notary Public, State of Texas
11 Certificate of Service
A copy of this notice is being filed with the appellate clerk in accordance with rule 25.l(e) of the Texas Rules of Civil Procedure. I certify that a true copy of this Petition for Writ of Mandamus was served On July 27, 2015, in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each party or the attorney for such party indicated below by certified mail, return receipt requested.
Hon. John Schmude 24 7th Judicial District Court 201 Caroline, 15th Floor Houston, Texas 77002
Hon. Thomas 0. Stansbury 3207 Mercer Street Houston, Texas 77027
Mr. Sean Reagan, Attorneys for Relator Leyh, Payne & Mallia, PLLC 9545 Katy Freeway, Suite 200 Houston, Texas 77024
12 CERTIFICATE OF WORD COUNT COMPLIANCE In compliance with TEX. R. APP. P. 9.4, relying on the word county function in the word processing software used to produce this document, I certify that the number of words in this document including footnotes (excluding captions, statement regarding oral argument, table of contents, table of authorities, statement of the case, statement of issues presented, statement of procedural history, signature, proof of service, certification, certificate of compliance and appendix) is 3523.
13 NO. 14-15-00585-CV
IN THE FOURTEENTH COURT OF APPEALS
AT HOUSTON, TEXAS
REAL PARTY IN INTEREST
APPENDIX OF DOCUMENTS
TABA COURT'S DOCKET SHEET
TABB RESPONSE TO MOTION TO SET ASIDE JUDGMENT AND ORDER FOR ENFORCEMENT
14 TABA
15 Harris County Docket Sheet
2013-08674 COURT: 247th FILED DATE: 2/13/2013 CASE TYPE: DIVORCE W/CHILDREN
AHMED, HISHAM Attorney: TILLINGER, CHRISTINA S.
vs. MARTINEZ, MERCEDES Attorney: MARTIN, KIRI
'cc Docket Sheet Entries bate Comment 2/22/2013 TRORX - ORDER SIGNED GRANTING TEMPORARY RESTRAINING ORDER
2/22/2013 CASO - ORDER SIGNED SETIING HEARING
3/13/2013 XTROX - ORDER EXTENDING TEMPORARY RESTRAINING ORDER SIGNED
4/2/2013 r/set to AJ on April 9 @ 1:30pm. will consider m/u periods of visitation based on the testimony and evidence.
4/9/2013 temporary orders as announced on the record (SS). entry 4/19/13
4/19/2013 TEOK - TEMPORARY ORDER SIGNED WITH CHILDREN
4/19/2013 AOWOX - ORDER SIGNED GRANTING ASSIGNMENT OF WAGES
10/14/2013 divorce granted per MSA as announced on the record and j rendere on this day (although OAG was sent schedule order no show so proceeded via default). entry 11/4 11/12/2013 6 - AGREED JUDGMENT, ORDER SIGNED
11/12/2013 AOWOX - ORDER SIGNED GRANTING ASSIGNMENT OF WAGES
6/16/2015 CASO - ORDER SIGNED SETIING HEARING
6/24/2015 R ordered to sign consent to travel by 5 pm on Friday, 6-26-15. Movant withdraws any request that R be held in contempt. Movant awarded atty fees in the amount of $750. Order signed. 6/26/2015 13D-AGREED ORDER OF CONTEMPT SIGNED
6/26/2015 13D -AGREED ORDER OF CONTEMPT SIGNED
6/30/2015 CASO - ORDER SIGNED SETIING HEARING
7/7/2015 Parties and counsel in ct. Ms. Martinez sworn and ordered to appear July 13, 2015 at 9:30a.m. t.stansbury, judge 7/17/2015 CASO - ORDER SIGNED SETIING HEARING
2013-08674 Page 1of1
247 7/27/2015 9:24:08 AM TABB
16 7/27/2015 3:44:36 Piii Chris Daniel - District Clerk Harris Count) Envelope No. 623963~ By: Raven Hubbarc Filed: 7/27/2015 3:44:36 Piii
NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
NO. 2013-08674
IN THE INTEREST OF § IN THE DISTRICT COURT § AMEEN AHMED § 247TH JUDICIAL DISTRICT § A CHILD § HARRIS COUNTY, TEXAS
RESPONSE TO MOTION TO SET ASIDE JUDGMENT AND ORDER FOR ENFORCEMENT
Hisham Ahmed respectfully requests that this Court DENY the Motion to Set Aside Judgment and Order for Enforcement filed by Mercedes Martinez.
The Agreed Final Decree of Divorce entered on November 12, 2013 is a valid court order, and there are no proper grounds for which this Court should render that order void. A judgment is void only if the court rendering the judgment had no jurisdiction or no capacity to act. Neither is true; therefore, Mercedes Martinez' only remedy would have been, depending on the circumstances and timing, a Motion for New Trial, Bill of Review, or direct appeal.
Furthermore, this Court has already dismissed Movant Mercedes Martinez' request to set aside or declare void the Agreed Final Decree of Divorce by considering Movant's arguments at the hearing on Hisham Ahmed's Motion for Enforcement held on June 24, 2015, at which time the Court found that the Agreed Final Decree of Divorce was a valid, enforceable court order, and indeed entered an order enforcing the decree. T h e argument was again attempted at the second enforcement hearing on July 7, 2015, and again failed.
BACKGROUND
The affidavit of Christina S. Tillinger, counsel for Hisham Ahmed, is attached as Exhibit A and incorporated by reference. This Affidavit provides the Court a time line of events during the 2013 Ahmed/Martinez divorce, as well as an explanation of the language from the Mediated Settlement Agreement and how it was incorporated into the Agreed Final Decree of Divorce, which is partially at issue in this case. Movant and Respondent have a different interpretation of the language in the Mediated Settlement Agreement, and whether or not it is properly reflected in the Agreed Final Decree of Divorce.
However, that interpretation is irrelevant in light of the fact that the Agreed Final Decree of Divorce is a valid court order, based on a Mediated Settlement Agreement, and any differences between the Decree and the Mediated Settlement Agreement are controlled by the language of the Decree. Therefore, this Court need not even consider the differences between the two documents, as long as the Agreed Final Decree of Divorce is a valid court order.
ARGUMENT AND AUTHORITIES
Void Orders
In order for this Court to set aside the Agreed Final Decree of Divorce, the Court must find that the Agreed Final Decree of Divorce is VOID. The Agreed Final Decree of Divorce can only be void if "the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of subject matter, no jurisdiction to enter the particular judgement, or no capacity to act". PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 272 (Tex. 2012). "Errors other than lack of jurisdiction over the parties or the subject matter render the judgment voidable and may be corrected only through a direct appeal". Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009).
As set forth in the attached Affidavit, the underlying case was a divorce action pending in the 247th Judicial District Court of Harris County, Texas. The Honorable Bonnie Hellums was in the 3rd year of her final term as judge, and certainly had the "capacity to act". The parties had resided in Harris County, Texas for the requisite period of time, and all property was located in Harris County, Texas. Therefore, Judge Hellums had the jurisdiction over the parties and property, the subject matter, and the judgment that was entered.
The Agreed Final Decree of Divorce is a valid court order, and is not void.
Consent
Mercedes Martinez is attempting to argue that there was a lack of consent to the Agreed Final Decree of Divorce and, therefore, that renders the Decree void.
2 As set forth above, lack of consent does not render a judgment void. An agreed judgment might be erroneous if rendered with out the agreement of a party, but "consent" is not jurisdictional, and an asserted lack of consent does not render the judgment void. Absence of consent does not establish that "the court rendering judgement had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act." PNS Stores, 379 S.W.3d at 272.
These types of arguments are to be raised in a direct attack on the divorce decree, and not in a collateral proceeding.
Merc;edes Martinez cites the case Burnaman v. Heaton, 240 S.W.2d 288 (Tex. 1951) and states in her motion that "when consent is lacking at the time the agreed judgment is rendered, the judgment is void and must be set aside. Burnaman is distinguishable from the case at hand in several ways.
First, the appellant in that case revoked her consent on the record before judgment was entered. In our case, Mercedes Martinez signed a Mediated Settlement Agreement, and was represented by counsel both at mediation and at the prove-up and entry of the Agreed Final Decree of Divorce, and at no time made it known to anyone, much less the Coµrt, that she had revoked her consent. Any revocation of consent on the part of Mercedes Martinez has come over two years later, when she is unhappy with the current circumstances. She did not file a Motion for New Trial, a Bill of Review, or an Appeal. To now attempt to set aside the Decree and ask that it be deemed void is disingenuous.
Second, the appellant in Burnaman went through the appeals process rather than filing a Motion to Set Aside Judgment in the trial court and a mandamus with the Court of Appeals, neither of which are the proper means by which to have a court order declared void.
The Burnaman case also states, "When a trial court has knowledge that one of the parties to a suit does not consent to a judgment, agreed to by his attorney, the trial court should refuse to give the agreement the sanction of the court so as to make it the judgment of the court. Any judgment rendered on the agreement under such circumstances will be set aside." Id at 291. In the case at hand, the trial court had no indication whatsoever that Mercedes Martinez "did not consent" to the Agreed Final Decree of Divorce. To the contrary, she had signed the Mediated Settlement Agreement, was represented by counsel throughout the case, and did not, for two years, complain about anything in the Decree. In fact, Mercedes Martinez has followed the Agreed Final Decree of Divorce by accepting child support from Hisham Ahmed, by honoring the visitation schedule for the child and, most on point, by following the Passport Provisions
3 (Agreed Final Decree of Divorce, page 6) as recently as March 2015 when she signed the requested Consent to Travel upon the request of Hisham Ahmed.
Mercedes Martinez also cites the case of Stein v. Stein, 868 S.W.2d 902 (Tex. App. - Houston [141h Dist.] 1994, no writ) to make her point regarding consent. However, that case is distinguishable in that the litigant/appellant seeking to have the decree declared void had filed a revocation of her consent to the agreed judgment in writing prior to the entry ofthe judgment.
Mercedes Martinez' Motion misstates that the Temporary Orders in this case were "agreed to by the parties and signed by the Court", when, in fact, these Temporary Orders were the result of a contested hearing before Associate Judge Meca Walker and, for that reason, do not bear the signature of either party. Therefore, that argument falls on its face.
Further on the issue of consent, Mercedes Martinez cites Kaspar v. Patriot Bank, No. 05-10-1530-V, 2012 WL 2087182 at *4 (Tex. App. - Dallas June 8, 2012 no pet) for the principal that, "A trial court should not enter an agreed judgment if it possesses information that would reasonably prompt further inquiry, and such inquiry, if pursued, would disclose a lack of consent." ·
The 24th Judicial District Court of Harris County is, and always has been, an extremely busy Court. There is no way that The Honorable Bonnie Hellums, or any other judge sitting on that bench, as the ability or the time to review each and every agreed order against the underlying Rule 11 or Mediated Settlement Agreement. These judges rely on. the parties and their counsel to ensure that agreed orders are properly drafted. Mercedes Martinez was represented by the same attorney from the beginning until the end of the divorce action. The decree was drafted, changes were requested by counsel for Mercedes Martinez, and the changes were made. See Affidavit of Christina S. Tillinger, attached and incorporated by reference.
In this case, Judge Bonnie Hellums did not have "information that would reasonably possess further inquiry" or any evidence that "would disclose a lack of consent".
Based on all of the above, the issue of Mercedes Martinez' "lack of consent" fails to result in a finding that this Agreed Final Decree of Divorce is void.
4 Plenacy Power of the Trial Court
A trial court retains plenary power to vacate, modify, correct or reform its judgment for thirty days after the judgment is signed. Tex. R. Civ. P. 329b(d). After a trial court's plenary power expires, it lacks power to alter its judgment: "An order signed after the trial court loses plenary power is void." Jn re J.P.L., 359 S.W.3d 695, 705 (Tex. App. - San Antonio 2011, pet. denied)(citing Jn re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008) (orig. proceeding)).
The Agreed Final Decree of Divorce in this case was entered on November 12, 2013. The trial court's plenary power expired thirty days later, on December 12, 2013. Mercedes Martinez failed to file any motion that would have extended the trial court's plenary power.
Once the trial court's plenary power expired, the trial court retained jurisdiction only to enforce or clarify the Agreed Final Decree of Divorce. Therefore, Hisham Ahmed's Motion for Enforcement and the subsequent Order on Motion for Enforcement and the contempt findings were within the court's power, and proper.
If the trial court grants Mercedes Martinez' Motion to Set Aside Judgment, the trial court would be acting outside of its jurisdiction and power at that time. In fact, such an action would easily be the subject of a mandamus. See In re Anderson, No. 14-05- 00820-CV, 2005 WL 3074680 (Tex.App. - Houston [14th Dist.] Nov. 17, 205)(original proceeding). In that case, the trial court signed a divorce decree on April 15, 2015, and then attempted to vacate the judgment on July 28, 2015. Because there were no post-trial motions that would have extended the trial court's plenary power, which, by that time, had expired, the Fourteenth Court of appeals held that the "order vacating the final divorce decree [was] void and the trial court abused its discretion in vacating the April 15, 2015 judgment". Id at *2. Mandamus was granted in that case.
Finality of Judgments
It seems that in no other area of the law would the importance of finality of judgment be more important than in Family Law. Termination of parental rights, adoption of children, and divorces all demand that judgments should be final, and parties should be able to rely on their finality.
The consequences of the trial court deeming this Agreed Final Decree of Divorce void would be detrimental to the parties and to the child. The continued accumulation of community property for the past two years, the continued acquisition of debt, new relationships on the part of either party, and many more issues would be unresolved if this
5 judgment were to be declared void. The cost to both parties, and to the child, both financial and emotional, of having to relitigation the issues would be unfathomable.
Both parties have relied on this Agreed Final Decree of Divorce, without issue, for the past two years. Parental rights, visitation, and child support have been followed without issue for the past two years. Even the passport provision has been followed, again as recently as March 2015.
SUMMARY
The Agreed Final Decree of Divorce entered on November 12, 2013 is a valid court order, and should not be declared void.
An order cannot be declared void unless the Court lacks jurisdiction or capacity to ask.
Lack of consent does not rise to the level of a lack of jurisdiction or capacity to act and, therefore, cannot be the basis of declaring an order void.
The trial court does not have the plenary power to declare the Agreed Final Decree of Divorce void.
Mercedes Martinez did not make her alleged lack of consent known at the time of rendition, nor at the time of entry, nor by filing a Motion for New Trial, nor by filing a Bill of Review. In fact, Mercedes Martinez has followed every aspect of the Agreed Final decree of Divorce, and has received every benefit (child support) of the Agreed Final Decree of Divorce, including the provision that she now disapproves of, since November 2013.
This Court should continue to uphold the Agreed Final Decree of Divorce.
It was necessary to secure the services of Christina S. Tillinger, a licensed attorney, to enforce and protect the rights of Hisham Ahmed and the child the subject of this suit. Respondent should be ordered to pay reasonable attorney's fees, expenses, and costs, and a judgment should be rendered in favor of the attorney and against Respondent and be ordered paid directly to the undersigned attorney, who may enforce the judgment in the attorney's own name.
6 Respectfully submitted,
THE ENOS LAW FIRM, P.C. 17207 Feather Craft Lane Webster, Texas 77598 Telephone: 281-333-3030 Fax: 281-488-7775
By: ISi Christina S. Tillinger Christina S. Tillinger E-mail: christina@enoslaw.com SBOT No. 24003058 Attorney for Movant
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 July 23, 2015.
Isl Christina S. Tillinger Christina S. Tillinger Attorney for Hisham Ahmed
7 AFFIDAVIT OF CHRISTINA S. TILLINGER, COUNSEL FOR HISHAM AHMED
THE STATE OF TEXAS * * COUNTY OF HARRIS *
BEFORE ME, the undersigned authority, on this day personally appeared Christina S. Tillinger, who by me being duly sworn deposes as follows:
"My name is Christina S. Tillinger. I am over 18 years of age, of sound mind, and capable of making this affidavit. The matters stated below are within my personal knowledge and are true and correct.
I represent Hisham Ahmed, and have been his attorney since 2013. I was his counsel during his original divorce proceeding, which began with his Original Petition for Divorce filed on February 15, 2013, and ended with an Agreed Final Decree of Divorce signed by the Court on November 12, 2013. I also currently represent Hisham Ahmed in a pending Enforcement action, as well as in his response to the Petition for Writ of Mandamus pending in the 14th Court of Appeals.
Mercedes Martinez is currently represented by Sean Reagan, but was represented in the divorce action by Kiri Martin.
The time line of events of the divorce is as follows:
Hisham - Petitioner, Husband and Father Mercedes- Respondent, Wife and Mother Martin - Kiri Martin, Counsel for Mercedes Martinez Tillinger - Christina Tillinger, Counsel for Hi sham Ahmed
02/15/13 Original Petition for Divorce -filed by Hisham 03/13/13 Counter Petition for Divorce - filed by Mercedes 04/19/13 Temporary Orders entered as a result of a contested hearing on April 9, 2013 before Associate Judge Meca Walker 05/10/13 Docket Control Order issued, setting trial for October 14, 2013 (Exhibit A-1)
1 10/11/13 Mediation with Judge Leta Parks - Mediated Settlement Agreement reached, signed by both parties and both counsel (Exhibit A-2) 10/14113 Trial Setting Hisham (Petitioner) appeared with Attorney Tillinger Mercedes did not appear, but her Attorney Martin did Office of Attorney General did not appear Docket Sheet: Associate Judge Meca Walker accepted the terms of the Mediated Settlement Agreement and rendered judgment on that day. (Exhibit A-3.) *Entry set from bench for 11/4/13 10/21/13 Tillinger sent decree draft to Martin and the OAG 10/28/13 Martin asked for certain pages to be resent Martin requested changes to decree; all changes were made 11/04/13 Entry Date - Tillinger appeared, Martin not present at docket call Court instructed Tillinger to leave decree. *Tillinger contacted Martin, who said she would stop by to sign 11/12/13 Judge Bonnie Hellums signed the Agreed Final Decree of Divorce (Exhibit A-4)
Both parties were present at mediation on October 11, 2013, with Counsel. Both parties signed the Mediated Settlement Agreement, after several hours of mediation. Mercedes now wants to have the decree declared VOID because she is now, two years later, unhappy with a portion of the Agreed Final Decree of Divorce.
When the divorce action first began, Mercedes took many extreme positions against Hisham that were obviously intended to separate Hisham from his son, Ameen, despite the fact that Hisham had always been an integral part of the child's young life.
Mercedes filed a Motion for Genetic Testing, which she later dropped.
Mercedes alleged domestic violence, though there was no history of domestic violence, and this was not found at the temporary orders hearing before Associate Judge Meca Walker in April, 2013.
Mercedes alleged risk of international abduction, and made this a theme throughout the case. At the temporary orders hearing, she pressed this issue as a reason to allow Hisham only supervised visitation with his son. Associate Judge Meca Walker denied this request, and allowed Tillinger (counsel for Hisham) to hold the passports of Hisham and the child during the pendency of the divorce action.
2 By the time of mediation, October 11, 2013, Mercedes had dropped the allegations regarding parentage, domestic violence and international abduction. The parties agreed that they would be joint managing conservators, Hisham would have a Standard Possession Order with elections, and there would be no international travel restrictions.
The Mediated Settlement Agreement (Exhibit A-2) states as follows on page 1 of Exhibit A to the MSA:
"Other Agreements:
The father's passport shall immediately be returned to him. The mother shall have the right to hold the child's passport. If either parent wants to travel internationally with the child they must have the agreement of the other parent. Order shall contain language from the TFLPM
The mother shall have the right of first refusal if the father is traveling internationally and it is his time to have possession ofthe child. She shall also have the right to have the right offirst refusal to the child is he is traveling domestically and the child should be in school. "
The first paragraph was reflected in the Agreed Final Decree of Divorce on page 6 under "Passports". The language in the MSA clearly provides that the normal passport language would be inserted into the Decree, which it was. The standard provisions for exchange of passport and consent to travel forms were incorporated into the Agreed Final Decree of Divorce. This provision did NOT give Mercedes the right to deny Hisham the right to travel, it only provided the means by which Hisham would obtain the child's passport and the consent to travel forms.
The second paragraph was reflected in the Agreed Final Decree of Divorce on page 14 under "Right of First Refusal". This provision is completely separate and apart from the first paragraph regarding passports. This provision has to do with what happens when Hisham needed to travel and it was his possession time with the child, and gave Mercedes the option to take the child from Hisham rather than have the child travel internationally, or travel domestically when he had school.
3 Mercedes and her attorney Martin had 14 days between the time Tillinger submitted a draft of the Decree and the date of entry to review the Decree to ensure that it complied with the Mediated Settlement Agreement. Based on the fact that the international travel issue had been so important to Mercedes during the pendency of the divorce, one would think that this is the FIRST provision that she would check on.
Martin requested changes to the Decree, but did not request changes to either the Passport section or the Right of First Refusal section.
In fact, on the day of entry, November 4, 2013, Martin indicated to Tillinger that she was ready and wiling to sign the Decree, but that she had just gotten caught up in another court. Martin stated that she would go by the 247th court and sign the decree later in the day. Obviously, that never happened.
The Agreed Final Decree of Divorce IS an Agreed Decree, as it is based on a Mediated Settlement Agreement that was agreed to and signed by the parties, and was drafted consistently with that agreement.
The Agreed Final Decree of Divorce even states:
"This Final Decree of Divorce is stipulated to represent a merger of an informal settlement agreement between the parties. To the extent there exist any differences between the informal settlement agreement and this Final Decree of Divorce, this Final Decree ofDivorce shall control in all instances. "
Thus, even if the Court were to take the position that the Agreed Final Decree of Divorce was in some way inconsistent with the Mediated Settlement Agreement, the terms of the Agreed Final Decree of Divorce control.
Signed on July d ".'::> , 2015.
/
4 SUBSCRIBED AND SWORN TO before me on July~. 2015.
_J~~ C.~ ~A/~~~ NOTARY PUBLIC, State of Texas
5 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
IN THE INTEREST OF § IN THE DISTRICT COURT § AMEENAHMED § 247TH JUDICIAL DISTRICT § A CHILD § HARRIS COUNTY, TEXAS
EXHIBIT A-1
1 No. 201308674
AH1,1c1.. -=!-:JAM * 247th DISTRICT COURT * vs. * HARRIS COUNTY, TE:Xf'.S MARTINEZ, MERCEDES * *
SCHEDULING 'ORDER and NOTICE OF INTENT TO DISMISS ··,.c:;~: '***;ALLDEADLlNESARE PRIOR TO.TRIALSEITING DATE*** . **Rule 11 Agreements will NOT delay trial date ** It is hereby ORDERED that:
1. PRIOR TO TRIAL, parents shall file with the court proof of completion of an approved PARENT EDUCATION PROGRAM if there is a suit affecting the parent-child relationship.
2. PRIORTOTAIAL, parties n1ust either (a) have completed ALTERNATIVE DISPUTE RESOLUTION or (b) have set and have heard an objection to Alternative Dispute Resolution.
3. PRIOR Tb TRIAL, spouses shall exchange a sworn INVENTORY AND APPRAISEMENT prepared in conformity with Local Rule 4.4. Compliance with this paragraph is not a substitute for the requirements in Local Rule 4.3. All supplements must be filed 10 days prior to trial setting.
4. BY TEXAS RULES OF CIVIL PROCEDURE, all parties must be added (JOINDER) and served, whether by amendrnent or third party practice. THE PARTY CAUSING THE JOINDER SHALL PROVIDEACOPY OF THIS SCHEDULING ORDER ATTHE TIME OF APPEARANCE.
5. BY TEX(>.§.HULES QF~l\(IL i:>ROCED~RE, .all DISCOVERY must be co~pleted. LATE discovery may be 1mt1ated by st1pulat1on 1n conformity with Rule 11, Tex. Rules of C1v1I Procedure. Incomplete discovery will not delay the trial date .. " 6. BY TEXAS R.~LES OF CIVIL PROCEDURE regarding PLEADINGS, all amendments and supplements must be filed.·· This order does not preclude prompt filing of pleadings directly responsive to any timely filed pleadings. NOTICE Of INTENT TO DISMISS ON TRIAL DATE. THIS CASE MAY BE DISMISSED FOR WANT OF PROSECUTION ON DATE OF TRIAL if, by the trit:.11 date there is no: a. Service with citation; or b. Answer on file; or c.Properly .executed Waiver on file; d. Alternative Dispute Resolution; e. Completion of PARENT EDUCATION PROGRAM, if applicable.
7. PRETRIAL CONFERENCE at . . set by court or upon motion. It is furtherOrdered that any necessary paternity testing shall be completed and results obtained by this date so proceedi11gs required by TFC 160.105-.108 may be conducted.
8. 10/14/2013 TRIAL at 09:30 AM THISCASE IS SET FOR TRIAL ON THE.MERITS ON THIS · DATE.· it not assigned by the second Friday after this date, this case will be reset.
SIGNED 05/10/2013
Christina Shropshire Tillinger 17207 Feathercraft Ln 24003058 Webster TX77598-4312 4 'I" 111 1h •11•111 111111· ·'lh 111·'11Ilh1' ·11 1•'111i•' I'·; 1111111
JCV009 BONNIE CRANE HELLUMS 247TH FAMILY DISTRICT COURT 201 CAROLINE, 15rn FLOOR HOUSTON, TEXAS 77002 (713) 368-6570
MECAWALKER DEBBffi WILLIAMS Associate Judge Coordinator
PHYLLIS GONZALES Court Reporter
247th DISTRICT COURT PROCEDURES
1. SETTING CASES FOR 1RIAL and PRETRIAL:
Scheduling orders are generated approximately 90-120 days after filing of the case. There is no pretrial conference unless you specifically ask for one. Trial dates shall not be changed except by Court's approval for good cause after a motion for continuance is heard. · Items 1-6 on lhe front of lhe Scheduling Order should be completed prior to the trial date.
2. PROCEDURES REGARDING ORDERS:
Entry dates for all orders will occur approximately 14 days after the cou1t's ruling. The person preparing the decree/order shall provide copies of the proposed decree/order to opposing parties at feast :fwe days before entry date. Failure to appear or to submit order at entry date will result in the case being dismissed for want of prosecution. All forms must be completed and turned in with order /decree.
3. UNCONI'ESIBD IXXXET PROCEDURE:
The uncontested docket is heard from approximately 8:30 to 9:30 a.m. each day. Uncontested matters may be heard at other times throughout the day if the Judge/Associate Judge is available or if specifically scheduled in advance. All orders, decrees, and forms must be presented to the court clerk at time of prove - up.
4. SUBMISSIONDOCKETPROCEDURE:
The following matters will, be heard by submission unless an oral hearing is specifically requested: 1) Motions for substitution (not withdrawals) of counsel. 2) l]nopposed motions to transfer venue. · 3) Motions for summary judgment 4) Motions for voluntary dismissal or non-suit.
5. OTIIERMATIERS:
a) Any attorney withdrawing from a case shall either: 1) Provide the substituting attorney with a copy of the scheduling order, or 2) Provide the client with a copy of the scheduling order. b) The petitioner or petitioner's attorney shall provide to respondent or respondent's attorney a copy of the scheduling order WITIIlN F1VE DAYS of receiving respondent's answer. c) If a translator is required, you must provide your own. d) If a record is required, please fill out the form provided by the court before your case is called. e) Parenting Classing are required on all cases involving children by all parties. >1<>1< ·~* Please see website for a full list of parenting classes for all cases as well as adoptions and other additional information**** www.justex.net/Courts/Family/FamilyCourts.aspx CV1247 Rev.07192012 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
IN THE INTEREST OF § IN THE DISTRICT COURT § AMEENAHMED § 247TH JUDICIAL DISTRICT § A CHILD § HARRIS COUNTY, TEXAS
EXHIBIT A-2
1 No. 2013-08674
In The Matter of The Marriage of Hisham Ahmed In The District Court
AND 247th Judicial District Merceds Martinez In The Interest Of Harris County, Texas
Ameen Ahmed A Minor Child
MEDIATED SETTLEMENT AGREEMENT
The undersigned parties herewith agree to compromise and settle the claims and controversies between them including all conservatorship, child support, and possession disputes regarding the above identified child of the marriage. The parties stipulate that the agreements set forth on the attached "MEDIATED PARENT-CHILD ISSUES" are in the child's best interest. The parties have also agreed to a just and right division of their marital estate. THE PARTIES ALSO AGREE THAT THIS MEDIATION AGREEMENT IS BINDING ON BOTH OF THEM AND IS NOT SUBJECT TO REVOCATION BY EITHER OF THEM.
~ initials Page 1of4
\/_ \ AGREEMENTS
1. The parties agree that the provisions included in Exhibit A for the child are
incorporated into this Mediated Settlement Agreement and are binding for all
purposes.
2. The parties agree that Exhibit B represents the intended division of all property
and is hereby incorporated under this Mediated Settlement Agreement and is
binding for all purposes.
3. The attorney for the Petitioner shall prepare the Final Decree of Divorce. Unless
otherwise agreed to in advance by the parties to the contrary, all documents
contemplated by the agreements in this Mediated Settlement Agreement shall be
based on the forms and provisions in the most recently publicly published Texas
Family Law Practice Manual from the State Bar of Texas. The entry of the Final
Decree shall take place on or before October 28, 2013.
4 If one or more disputes arise with regard to the drafting of the decree or closing
documents, the interpretation, omitted issues, interpretation and/or performance of
this agreement or any of its provisions, the party's attorneys agree to attempt to
resolve same by phone conference with the Mediator who facilitated this settlement.
If their differences cannot resolve by phone conference, then the disputed issues
shall be resolved by arbitration as set forth below.
5. ANY DISPUTES ARISING FROM THE DRAFTING OF THE DECREE OR CLOSING DOCUMENTS, THE INTERPRETATION OR OMITTED ISSUES OF
THIS AGREEMENT OR ANY OF ITS PROVISIONS WHICH CANNOT BE
RESOLVED BY PHONE CONFERENCE AS SET FORTH ABOVE, SHALL BE
DECIDED BY ARBITRATION WITH JUDGE LETA PARKS SERVING AS
ARBITRATOR. Parties and/or counsel agree to notify Judge Parks, in writing, of
Page 2of4 their request for her services at least seven days prior to a Court entry date and
shall deposit an additional $250.00 per party toward the cost of said services
before any arbitration services are rendered. The parties agree to pay any
additional arbitration fees directly to Judge Parks on or at the time of entry.
6. The discovery obligations of each party shall immediately cease upon the
execution of this Mediated Settlement Agreement, including the requirement for
either party to respond to outstanding discovery requests or supplement any
discovery responses. All disputes between the parties are hereby resolved.
7. The parties agree jurisdiction is in Harris County, Texas. They stipulate the
divorce should be granted on the grounds of insupportability.
8. Either party may appear in court for the purpose of presenting evidence and
securing the Court's approval of this Mediated Settlement.
9. This agreement is made and performable in Harris County, Texas, and shall be
construed in accordance with the laws of the State of Texas.
10. Each signatory to this settlement has entered into same freely and without
duress after having consulted with professionals of his or her choice. Each party hereto
has been advised by the Mediator that the Mediator is not the attorney for any party and
that each party should have this agreement approved by that party's attorney prior to
executing same. This stipulation is signed voluntarily and its provisions regarding
property issues are intended to be incorporated into an Agreed Decree of Divorce .
. A~\\ \\b ._,......~ initials Page 3of4 DATED October 11 2013
AGREED: AGREED:
-~ f~ \\h initials Page 4of4 2013-08674
Exhibit A
MEDIATED PARENT-CHILD ISSUES
Conservatorship: TJMC Harris County Geo Restriction
Support. Father to pay $1100 per month and continue to carry health insurance via temporary orders 50-50 uninsured
Possession and Access: The temporary orders shall become final with the following adjustments:
The father shall also have the EID after Ramadan and Haj and the mother shall ~~ have two days of her choice in exchang~ The parties shall alternate holidays per theSPO \ ~- f'.D\-· --\-::? ,::lM'cfy~·fC'- ~' \'.=..c~k,f ~ Other Agreements: \Yo"\\&--::"°" c__,J oc _9;/~r. The father's passport shall immediately be returned to him. The mother shall have the right to hold the child's passport. If either parent wants to travel t~~~~~a.~~~~,llyc\Y!!~!~~ . c~i!~'·t~~~~:;;~s~~~.~:. t~.~ ~~e;~;~~\ ~f the ot~er p~ren\-\ ~ travel~ 1 The mother shall have the right of first refusal if the father is internationally and it is his time to have possession of the child. She shall also have the right to have the right of first refusal to the child if he is travelling domestically and the child should be in school.
The parties shall communicate through Our Family Wizard Ci en c "'...c ...c i .... cu II) ·- ... 0c ::s ·- ... Q) Q) Rights and Duties "Cl II) Q) E lQ ....0 .c -="" Q) II) ~ Q) "Cl II) cQ) .c .5 cu Q) .c II) ~
~ f .c .... II) E en c. CJ .c 0 <( Q) C'll CJ c. >. "Cl c w C'll w m
Duty to inform the other party in a timely manner of x significant information concerning the health, education, and welfare of the child. Right to receive information from the other party x concerning the health, education, and welfare of the child Right to confer with the other party, to the extent x possible, before making a decisiofl concerning the health, education, and welfare of the child Right of access to medical, dental, psychological, and x educational records of the child except confidential communications between the child and MHP Right to consult with a physician, dentist, or x psychologist of the child Right to consult with school officials concerning the x child's welfare and educational status, including school activities Right to attend school activities x Right to be designated on the child's records as a x person to be notified in case of an emergency Right to consent to medical, dental, and surgical x treatment during an emergency involving immediate danger to the health and safety of the child
Duty of care, control, protection, and reasonable x discipline of the children Duty to support the children, including providing the x child with clothing, food, shelter Right to consent for the child to medical and dental x care not involvinQ an invasive procedure* Right to direct the moral and religious training of the x children Right to make decisions regarding psychological or x psychiatric treatment for the children after consultation with the other party Duty to make periodic child support payments x Right to establish domicile of the children x Right to consent to medical, dental and surgical x treatment involvinQ an invasive procedure* Right to receive and give receipt for child support x payments for the support of the child and hold or disburse the funds for the benefit of the child Right to make educational decisions for the child* x The right to consent to marriage of the child x The right to consent to enlistment in the armed forces x Except when a guardian or attorney ad litem has been x appointed for the child, the right to act as agent of the child in relation to the child's estate if the action is required by a state the U.S. or a foreign government Duty to manage the child's estate to the extent the x estate has been created by community property or the joint property of the parties 2013-08674
MSA Property Division
Each party is awarded the property in their possession all debts in their name and attorney's fees incurred by them. Additionally the Petitioner is awarded the following:
2010BMW
The business known as Sahara Cargo
The following is awarded to the Respondent:
2004 Tahoe Silverado Truck is confirmed as her separate property
Upon 24 hours notice to the Petitioner she may pick up the following items:
The scrapbook she made
Umblblical cord set with the baby's first hair
Silver laptop with pictures
All other pictures or copies on other computers
Baby clothes in plastic tubs and newborn three piece outfit from her mother
First Halloween tSStu~e Office of HaITis County District Clerk - Chris Daniel I FREEfax Page 1of1
Your FREE lax Filing has been successfully uploaded. Tile following Unique Trace Number has been assigned lo your fax filing. (. Fl\X'iSSSUG9:~!You will receive an email confirmation when yotJr fax filing has been received. The status of a filing may be tracked on the My FREEi ax Filings page
https://www.hcdistrictclerk.com/eDocs/Secure/FREEfax/Secure/FaxFilinQ.asnx 1()/1h./')()11 NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
IN THE INTEREST OF § IN THE DISTRICT COURT § AMEENAHMED § 247TH JUDICIAL DISTRICT § A CHILD § HARRIS COUNTY, TEXAS
EXHIBIT A-3
1 Harris County Docket Sheet
2013-08674 COURT: 247th FILED DATE: 2/13/2013 CASE TYPE: DIVORCE W/CHILDREN
vs. MARTINEZ, MERCEDES (j~ ~ * Attorney: MARTIN, KIRI j( o~ IP~~ . Docket Sheet Entries n~d ... · ~ '<:::(/ .. D~te Comment 2/22/2013 TRORX - ORDER SIGNED GRANTING TEMPORARY R~NING ORDER
2/22/2013 CASO - ORDER SIGNED SETTING HEARING At@! 3/13/2013 XTROX - ORDER EXTENDING TEMPORARY ~~RAINING ORDER SIGNED
4/2/2013 r/set to AJ on April 9@ 1:30pm. will consld~perlods of visitation based on the testimony and evidence. ,;,=>
4/9/2013 temporary orders as announced on th~W (SS). entry 4/19/13
4/19/2013 TEOK - TEMPORARY ORDER SIGN~WITH CHILDREN ({7),., 4/19/2013 AOWOX - ORDER SIGNE~~~NG ASSIGNMENT OF WAGES
10/14/2013 divorce granted per MSv~:ounced on the record and J rendere on this day (although OAG was sent schedule order no show Q oceeded via default). entry 11/4 11/12/2013 6 - AGREED JUDG~, ORDER SIGNED
11112/2013 AOWOX - ORP~JBNED GRANTING ASSIGNMENT OF WAGES
6/16/2015 CASO - O~"'R'SIGNED SETTING HEARING (("
6/24/2015 R or~~slgn consent to travel by 5 pm on Friday, 6-26-15. Movant withdraws any request that R be held In coni Movanl awarded atty fees In the amount of $750. Order signed. 6/26/2015 1~ ~GREED ORDER OF CONTEMPT SIGNED 6/26/2015 ~~ ~ ) - AGREED ORDER OF CONTEMPT SIGNED
6/30/2015 CASO - ORDER SIGNED SETTING HEARING ' 7/7/2015 Parties and counsel In ct. Ms. Martinez sworn and ordered to appear July 13, 2015 at 9:30a.m. t.stansbury, judge 7/17/2015 CASO - ORDER SIGNED SETTING HEARING
2013-08674 Page 1of1 247 7/23/2016 10:00:16 AM NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA
IN THE INTEREST OF § IN THE DISTRICT COURT § AMEENAHMED § 247TH JUDICIAL DISTRICT § A CHILD § HARRIS COUNTY, TEXAS
EXHIBIT A-4 u(1 Jt L Chris o .ED . ,. Ol~frlct ~1;~k NOV - 4 2013
IN THE MATTER OF § IN THE DISTRICT COURT THE MARRlAGE Ol.1 § § HISHAM AHMED § AND § 247Tfl JUDICIAL Dl~_T~ICT MERCEl>ES MARTINEZ § ~ § ~®) AND IN THE INTEREST OF § ((' ~ 4.MEEN ~l:l.MEO, ~ Cl:ULJ> § HARRIS cou~~TEXAS <>~ AGREED FINAL DECREE OE..D~CE <>~ On October 12, 2013, the Court considered this case. 4;J Appearances ,. ~~ Petitioner, Hisham Ahmed. appeared in person a"~igh attorney of record, Christina S. Tillinger, and announced agreement. ~~· o~~ . Respondent. Mercedes Marthiez. has made_'*'~eral appearance and has agreed to the tenns of this judgment to the extent pennitted by law. as e~ced by Respondent's signatU{e below.
Also appearing was the Office of the $ e y General, who has agreed to the tenns of this order as evidenced by their signature below. ~
n~~ Record . o~ A record was made by Li~~~. court repoi;ter for the :2471.h Judicial District Court of Harris County, Texas. O°'ll ©~ .Jurisdiction. and Domicile U The Court fin~~ the pleadings of Respondent EU"e \n due form and contain all the allegations, information, and pr~sites required by law. The Court, after receiving evidence, finds that it has jurisdiction of this~-and of all t.he parties and that at least s~ty days have elapsed since the date the suit was filed. ~
Thc~rt further finds that, at the time this suit was flied, Respondent had been a domiciliary of Texas for the preceding six-month period and a resident of the county in which this suit was filed for the preceding ninety-day period. All persons entitled to citation were properly clted.
Jury
A jury was waived, and questions of fact and of law were submitted to the Court.
EXHIBIT •• RECORDER'S MEMORAf.10\IM 'ht3 in~f11JR'e!lt 1s ol poor que.lrty i. at 1h& time c' ima91n!) Agreement of Parties
The Court finds that the parties have enteted into a wrinen agreement as contained in this decree by virtue of having approved this decree as to both fonn and substance. To the extent pennitted by law, the parties stipulace the agreement is enforceable as a contract. The Court approves the_ apreement of the parties The agreements in this Fl.nal Decree of Divorce were reached pursuant tnAb~formal settlement process. This Final Decree of Divorce is stipulated to represent a merger of a ii~t~ertlement agreement between the parties. To the extent there exist any differences be~~e informal settlement agreement and th is Final Decree of Divorce. this Final Decree of Divorce ~ntrol in all instances. Divorce A.,~ -'VJ IT IS ORDERED AND OECREED that Hi$ham AhmedQ P~ooer, and Mercedes Martinez, ~espondent, are divorct!d and that the marria.ge betw·een them i~~l~ed on the ground of insupportability. @? Child ofthe Marrial!" , {!fptfJ The Court finds that Petitioner and Respon~ the parenrs of the followirlg child: Name: Ameen Ahmed ~ u Se.x: Male , Qi Birth date: July J5, 2008 ~ Home state: lexas ./A/f?. Social Security number: xxx.-xx-4079 ~ The Coort finds no other~ of the msniage are °'pectc IT IS ORDBREO that Hisham Ahmed and Mercedes Martinez are ap{lOinted Joint Managing Conservators of the following child: Ameen Al'lmed. 2 IT JS ORDERED that. at all times, Mercedes Martinez. as a parent joint managing conservator, shall have the following rights: I. the right to receive information from any other COIJ5ervator of the child concerning the health. education, and welfare ofthe child; ::?. concerning the health. education. and welfare of the child; 3. * the right to confer with the other parent to the extent possible before making a decision the right of access to medical, dental. psychological, and educatio~~ords of the child; 4. the right to c;onsult with a physician, dentist, or psychologist o~\Jhild; <>Ll 5. the right to coosult with school officials concerning the c~velfare and educational status. including school activities; c) ® 6. the right to attend school activities; ~ o~ 7. the right to be designated on the child's record~~ person robe notified In case of an ernergency; . <:)if@ 8. th~ fight to consent to medical. dental.~urgical treatment during an emergency Involving an immediate danger to the health and safe~~e child; and ~ 9. the tight to manage the estate of;!aild to the ex.tent the estate has been created by the parent or the parent's fumily. 1~ IT rs ORDERED that, at all times~am Ahmed. as a parent joint managing conservator, shall have the following rights: · ~~ l. the right to receive l~matlon from any othe{' conservator of the child concerning the . health, education. and welfare of~hild; 2. the right to t!i'l~~ith the other parent to the extent possible before making a decision concerning the health. ed~~~~~[~nd welfare of the child: 3. the ri#access co medicaL dental, psychological, and educational records of the child: 4. t#t to consult with a physician, dentist. or psychologist of the child; 5. ~~ dght to consult with school officials cooceroiog the child's welfare and educational status. including school activities~ 6. the: right to attend school activities: 7. the right to be designated on the child's records as a pe('Son to be notified in case of an emergency: 3 8. the right to consent to medical, dental, and su..-gical treatment during an emergertcy involving an immediate danger to the health and .safety of the child: and 9. the right to manage the estate of the child to the extent the estate has beerJ cteated by the parent or the pal'ent's family. 1T IS OROEREP tha4 ar all times, Hisham Ahmed and Mercedes Martinez, as parent joint managing conservators, shall each have the following duties: I. the duiy to infonn the other conservator of the child in a timely infonnation concerning the t1ealth. education. and welfare of the child: and m'fifJ'~ <(J · sly;oiflcant 2. the duty to inform the orher conservator of the child if the CQk-ator resides with for at least thirty days, marries, or Intends to marry a person who the co11servato~:,_,is registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is curre~charged with art offense for which on conviction the person would be required to re:gister under c~~';pter. IT IS ORDEREO that this infonnatioo shall be tendered in the fonn ofa notice made ass~~ practicable, but not later than the fortieth day after the date the conservator of the child begins~rde with the person or on the tenth day after the date the marriage occurs, as appropriate. IT rs O~ED that the notice must include a description of the offense that ls the basis of the person's ~ent to register as a sex offender or of che offense with which the person is charged. WARNIN~CONSERVATOR COMMITS AN OFFENSE lllJNJSHABLE AS A CLASS C MISDEM£~0R IP THE CONSERVATOR FAJLS TO PROVIDE THIS NOTICE. ~ IT IS ORDERED that, during her peri°*~ossession, Mercedes Martinez, as parent joint managing conservator. shall have the followin~ts and duties: 2. the duty ro support ··-~t. iacluding ptoviding the child with clothing, food, shelter,. invJ~fg an invasive procedu..-e; 1 and medical and dental care not . 3. the right to co~,., the child to medical and dental care not Involving an invasive procedure: and Q 4. the risJ;{~irect the moral and religious training of the c:hild, IT JS OR~ that, during his periods of possession, Hisham Ahmed. as parent joint managing conse~~-;hall have the following rights and duties: I. ~~duty of care. control. protc:ction, arid. reasonable discipline of the child; 2. the duty to support the child. including providing the child with clothing. food, shelter. and medical and dental care not involving an invasive procedure; J_ the right to consent for the child to medical and dent.al care not involving an invasive procedure: and 4. the rightto dfrect the moral and religious training of the child. 4 lT IS ORDERED that Mercedes Martinez, as a parent joint managing conservator, shall have the following rights and duty: 1. the exclusive right to designate the primary residerice of the child within Hanis County, Texas; 2. the right, S\lbject to the agreement of the other parent, to consent to medical, dental, and surgical rreatment involving invasive procedures; 3. the t right, subject to the agreement of the other parent, to consent t ~Jatric and psychological treatment oFthe child; (?'U~ch u 4. the independent right to receive and give receipt for periodi~ ~ents for the support of the child and to hold or disburse these fi.mds for the benefit of the child; ~ 5. the right, subject to the agreement of the other parent~~resent the child in legal action and to make olher decisions of substantial legal significance ~~lng the child; 0 if@ . 6. . the right, subject to the _agreement of the other~m. to consent to marriage and to enlistment in the armed forces of the UJUted States; ~ 7. the exclusive right to make decisions ~~9.ng rile ch lid's education: 8. except as provided by section 264~~f rhe Texas Family Code, the right, subject to the agreement of the other parent, to the services d~amings of the child; ~ 9. except when a guardian ofthe@lld's estate or a guardian or attorney ad litem has been appointed for the child, the right, subject t~ agreement of the other parent, to act as an agent of the child in relation to the child's estate ift~~d's action is required by a state, the United States, or a foreign government: aod o~ I0. the independent~ to manage the estate of the child to the extent th,e estate has been created by community property~~ joint property of the pa.rent. IT IS ORDEREQt~isham Ahmed, as a parentjoint managing conservator, shall have the following rights and d~~ t. th~. subject to the ag~ment of the other pafc!\t, to consent to 111edical, dental, and surgical treatment~lving invasive procedures; 2. · ~ rlght, subject to the agreement of the other parent, to consent to psychiatric and psychologica'M~~ent of the child; :J. the right, subject to the agreement of the othei: parent, to represent the child in legal action and to make other decisions of substantial legal significance concerning the child: 4. the right, subject to the agreement of the other parent, to consent to marriage and ro enlistment in the armed forces of the United States: 5 5. except as provided by sec6on ;!64.0111 of the Texas Family Code, the right. subject to the agreement of the other parent, to the services and earnings of the child; 6. except when a guardian ofthe child's estate or a guardjan or attorney ad litem has beet1 appointed for the child. the right, subject to the agreement of the other parent, to act as an ageot of the child in relation to rfle child's est:;ite if the child's action is required by a state. the United States, ore. foreign government: and 7. rhe independent duty to manage t.he esrate of the child to the ex.tent th~te has been created by community property 01· the joint property of the patents. ~ Domicile Re...triclion ~rt:J Q (J~ The Court finds that, in accordance with section 153.001 of the T~~amily Code, it is the public policy of Texas to assure that children will have frequent and i!on ~lhg contact with parents who have shown the abilicy ro act in the best interest of the child, to provi ~ fe, stable, aod oonviolent environment for the c~ild, aud to encourage parents to share in the 1&!11 and duties ofraising their child .after the parents have sepBrated or dissolved their roaJTiage. JT l~~ERED that the primary residence of the child shall be Han-is County. Texas and the parties shall. ~~move the child from Harl'is County, Texas for the purpose of changing the primacy residence 0~1ld until modified by further order of the coun of continuing jurisdiction or by written agreement sig~ by the parties and filed with the court. JT IS FURTHER ORDERED that Mercedes ~~ez. shall have the exclusive right to designate the child's primary reside11ce within Harris County~s. IT IS FURTHER ORDER~D that this~~mphic restdction on the residence of the child shall be lifted if, ac the time Mercedes Martinez w~·sh~;move the child from Harris County, Texas for the purpose of changing the prirnary residenc e child, Hlsham Ahmed does not reside in Harris County, Texas. ~" Passports Q IT IS ORDERED !hat~~ Ahmed's passport shall be immedialely retomed to him IT rs ORDER~tUercedes Martinez shall have the right to maintain possession of any passports of the Child,~ Ahmed, subject to tile requirements for delivery of the passport and all orher requiremenJ,tsr below. ·~ Me~cede inez js ORDERED to deliver or cause to be delivered to Hisham Ahmed the orisinal, vali ort of Ameen Ahmed, within ten days of their receipt ofHisham At-1rned's notice of intent to ha child travel outside the United States during a period of possession of the other parent. JT IS OR.Of::REO that if a conservator intends to have the child travel outside the United States dufing the conservator's period of possession of the child, the conservator shall provide written notice to the other conservator. IT IS ORDERED that this wdtten notice shall include all the following: I. any written consent fonn for travel outside the United States that is required by tne c<)lmtry of destination. couTitdes through which travel will occur, or the intended carriers; 2. the date, time. and location of the child's departure from the United States; 6 J. a reasonable description of means of transportation, including. if applicable. all names of carriers. flight numbers, and scheduled departure and arrival times; 4. a reasonable descdption of each destination of the intended travel, including the name, address. and phone number of each interim destination and the final travel location; 5. the dates the child is scheduled to arrive and depart at each such destination; 6. the date, time, and location of the child's return to the United States; 7. a complete statement of each portion of the intended travel during which the conservator providing the written notice will nor accompany the child; and 8. the name. pennaneJJt and mailing addresses, and work and home telep*. numbers of each person accompanying the child on the intended travel other than the conservator~\.iding the written notice. ~ lfthe intended travel is a group tdp, such as with a school or other o tion, the conservator providing the written notice is ORDERED to provide with the written noti <> nfonnation about the group trip and its sponsor instead of stating the name, permanent and mail' ddresses, and woi:k aod home telephone numbers of each person accompanying the child. A~ ~ . IT IS FURTHER ORDERED that this written notice sh~~~rnished to the other conservator no less than twenty-one days before the intended day of depart~~i:. me child from the United States. Hisham Ah.med and Mercedea Martinez are each n6i' IT IS ORDERED that any conservator~ violates the terms and conditions of these provisions regarding the child's passport shall be liable ®all costs incurred due to that person's noncompliance with the5e provisions_ These costs shall i~nh.1 · t not be limited to. the expense of nonrefundable or noncreditable tickets, the costs of non able deposits for travel or lodging, attorney's fees, and all other costs incurred seeking enforcer ·of any of these provisions. Pas.session and Access ~~ tF(J I. Standard P~ssion Order ~ IT IS O~~RED that each conservator shall comply with all tenns and conditions of this Standard P . on Order. lT IS ORDERED that this Standard Possession Ordef is effective a applies to all periods of possession occurring on and after the date the Court ndard Possession Order. IT IS. THEREFORE. ORDERED: Definitions l. ln this Standard Possession Order ''school" means the primary or secondary school in which the child is enrnlled or, if the child is not enrolled in a primary or s~ondary school, the public scbooJ district in which the child primarily ~sides. 7 2. In this Standard Possession Order "child" includes each child, whether. one or more, who is a subject of this suit while that child {s undet the age of eighteen years and not otherwise emancipated. (b) Mutual Agreement or Specified Terms for Possession IT IS ORDERED that the conservators shall have possession ofrhe child at times mutually agreed lo in advance by the parties. and. in the absence of m~~~~greement. it is ORDERED that the conservators shall have possession of the child~ the .specified terms set out in this Standard Possession Order. !?~rpjj; (c) Parents Who Reside 100 Miles or Less Apart ~V ¢~ Except as otherwise expressly provided in this St~ .Possession Order, w!Jen Hisham Ahmed resides 100 miles or less from the prlma(f'~dence of the child, Hisham Ahmed shall have the right to possession of the child~lows: 1. Weekends- o~ On weekends that occur during t h e *school tenn, beginning at the time the child's school is regularly dismissed, on rh~f, thil'd. and fifth friday of each month and ending at the time the child's schooJ~mes after the weekend. On weekends that do not ~,.S:{~uring the regular school tenn, beginning at 6:00 p.m., on the flrst, third. and fiftha~~~each momh and e{l.diog a.t 6:00 p.01. on the following Sunday. ~ Except as ot' ·~expressly provided in this Standard Possession Order. if a weekend period of a':;on by Hisham Ahmed begins on a student holiday or a. teacher in·service day th Is on a Fdday during the regular school term. as detemiined by the school in whic c ild is enrolled, or a federal, state, or local holiday that falls on a Friday duri t summer months when school is not in session, that weekend period of begin at the time the child's school is regularly dismissed on the Thurs~ ., cdiately preceding the student holiday or teacher io-r;CJVicc: day s.od 6:00 Thursday immediately preceding the federal, state, or local holiday during the su months. _ ~~ Except as otherwise expressly provided in this Standard Possession Orderi if a ~eekend period of possession by Hisham Ahmed eJJds on or is immediately followed by a student holiday or a teacher in-service day that falls on a Monday during the re~ular school tenn, as detennilled by rhe school In which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months when school ls l10t in session, that weekend period of possession shall end at 6:00 p.m. on that Monday. 3. Thursdays-On Thursday of each week during the regular school term, beginning at the time the child's school is regularly dismissed and ending at the time the chHd's school resumes on Friday. 8 4. Spring V&.cation in Even-Numbered Years - In even-numbered yeacs, beginning at the time the child's school is dismissed for the school's. spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation. With Written Notice by April I - lfHisham Ahmed gives Mercedes ez written notice by April J of a year specifying an extended period or periods mmer possession for that year, Hisham Ahmed shall have possession oi-:..i-.t~ Notwithstanding the Thu~criods of possession during the regular school tenn and the wet:kend periods ~ossession ORDERED for Hisham Ahmed, it is expressly ORDERED that Me~es Martinez shall have a superior right of possession of the child as follows: ~ I, Spri~ation in OddpNumbered Years - In odd-numbered ,YeaI'l), beginning at the tim@child's school is dismissed for the school's spring vacation and ending at 6:00 p~n the day befoJ'e school resumes after that vacation. 2. Ex~~umm.,. Possession by Mereecles Martlnez- ~mer Weekend Possession by Mercedes Martinez - If Mercedes Martine.z ~m Ahmed written notice by April IS of a year, Mercedes Martinez shall have n of the child on any one weekend beginning at 6:00 p.m. on Friday and ending p.m. on the following Sunday during any one period of the ex.tended summer ession by Hisham Ahmed in that year, provided that Merced.es Martinez; picks up the ~ ~ 1ld from Hisham Ahmed and returns t.fie child to that same place and that the weekend 'Yso designated does not interfere with Father's Day possession. Ex.tended Summer: Possession by Mercedes Martinez - If M.ei:cedes Martinez gives Hisham Ahmed wrmen notice by April 15 of a year or gives Hisham Ahmed fourteen days' written notice on or after April t 6 of a year, Mercedes Martinez may designate one weekend beginning no earlier than the day after the child~s school is dismissed for the summer vacation and ending no later than seven days before: school resumes at the end of the summer vacation, during which an otherwise scheduled 9 weekend period of possession by ttisham AJimed shall not take place in that year, provided that the weekend so designated does not interfere with Hisham Ahmed's period or periods of extended summer possession or with Father's Day possession. (d) Parents Who Reside More Than 100 Miles Apart Except as otherwise expressly provided. in this Standard Possession Order, when Hisha.m Ahmed resides more than t 00 miles from the residence of the~~ild. Hlsham Ahmed shall have the right to possessiorr of the child as follows: ~ 1. Weekends~ Uoless Hisham Ahmed elecrs the alfii'~ve period of weQ~cnd possession described in the next paragraph, Hisham ~'Md~hall have the right to possession of the child on weekends that occur during th~ w1ftar school term, beginning at the time the child's school is regulady dismia~n the first, third, and fifth Friday of each month and ending at the time the chili' ~I resutnes after the weekend, and on weekends that do not occur during gular school term, beginning at 6:00 p.m. on the fil"St, third and fifth Friday of eac~ th and ending at 6:00 p.m. on the following Sunday. <>{If» Alternate Weekend Possession· l~~the weekend possession described in the foregoing paragraph, Hisham Ahmed~ have the right to possession of the child not more tha.o one weekend per month ~~isham Ahmed's choice beginning at 6:00 p.m. 1 and ending at 6:00 p.m. on the day before on the day school recesses for the wee~ffi.I school resumes after the weekend~am Ahmed may elect an option for this alternative period of weekend ~~loo by giving written notice to Mercedes Martinez within ninety days after the pa begin to reside more than I00 miles apan. lf Hisham Ahmed makes this election, 1 Ahmed shall give Mercedes Martinez fourteen days' written or telephonic noti eding a designated weekend. The weekends chosen shall not conflict with the p ns regarding Christmas. Thanksgiving, the child's birthday, and Morher's Day p on below. W~kE.'nd Possession Extended by a Holiday - 2. w Exeaia otherwise expressly provjded in this Standard Possession Order, if a -.;f weekeniM. possession by Hisham Ahmed begins on a student holiday or a teacher in-scry,i v y that falls on a Fridiw during the regular school term, as detennined by the sch o hich the child is enrolled. or a fedetal, state, or local holiday during the months when school is oot In session, that weekend period ofpo5session sha.11 at the time the child's school is regularly dismissed on the Thursday immediately eding the stude11t holiday or teacher in-service day and 6:00 p.m. on the Thul"Sday ~ mediately preceding the federal. state. of local holiday during the summer months Except as otherwise expressly provided in this Standard Possession Order, ifa weekend petiod of possession by Hisham Ahmed ends on or is immediately followed by a student holiday or a reacher in-service day tha.t fall$ on a Monday duriog rhe regular school teon. as determined by the school in which the child is enrolled, or a federal, state, or local holiday that falls on a Monday during the summer months wheo school is not in session, that weekend period of posse$sion shall end at 6:00 p.m. on that Monday. 10 3. Spring Vacation in All Years - Every year. beginning at 6:00 p.m. cm the day the child {s dismissed from school for the school's spring vacation and ending at 6:00 p.m. on the day before school resumes after that vacation. With Wntten Notice by April 1 - If Hisha.m Ahmed gives Mercedes Maninez written notice by April 1 ofa year specifying an extended period or periods of summer possession for that year. Hisham Ahmed shall have possession of the for forty-two days beginning no earlier: than the day after the child's school is dis · . for the summer vacation and ending no later than seven days before school resut he end of the summer vacation in that year, to be exercised in no more thai' parate periods of at least seven con~utive days each, with each period of po5Sf6s beginning and ending a.t 6:00 p.m. on each applicable day. as specified in the ~r~ otice. These periods of possession shall begin and end at 6:00 p.m. on each apQl~e day. ~~ Without Written Notice by April I - ff His a~hmed does not give Mercedes Ma1tinez written notice by April I ofa year spetj an extended period or periods of summer possession for that year, Hisltam Ahm a.11 have possession of the child for forty-two coosectttive days beginning at 6:00 . on June 15 and ending at 6:00 p.m. on July 27 of that year. ~ Notwithstanding the wee~e~~ds posse~ioo of ORDERED for His ham Ahmed, it is expressly OROEREU"Mercedes Martinez shall have a superior right of possession of the child as folio~ I. Summer WeeQd Possession by Mercedes Martinez- If Mercedes Martinez gives Hisha~m~ written notice by April 15 of a year, Mercedes Martinez shall have possession bild on any one weekend begin11ing at 6:00 p.m. on Friday and ending at 6:00 PA~ the following Sunday during any one period of possession by Hisham Ahmed duri~isham Ahmed's extended summer possession in that year, provided that if a iod of possession by Hisham Ahmed in that year exceeds thirty days, Meccede nez may have possession oftbe child under the tem1s of this prov1s1on o wo nonconsecutive weekends during that period and provided that Merc#ee Inez picks up the child from Hisham Ahmed and returns the child to that same r,I nd that the weekend so designated does not interfere wit!} Father's Day 9 posse . ~ 2. Extended Summer Posse&Sion by Mercedes Martine~~ If Mercedes ine~ gives Hisham Ahmed written notice by April 15 of a year, Mercedes Martinez ~ y designate twenty-one days beginning no earJierthan the day after the child's school is dismissed for the summer vacation and ending no later than seven days befoftl school resumes at the end of the summer vacation in that year. to be exercised in no more than two separate periods of at least seven consecutive days each, during which Hisllam Ahmed shall not have possession of the child. provided. that the period or periods so designated do not interfere with Hisham Ahmed's period or periods of extended summer possession or with Father's Day possession. These periods of possession shall begin and end ar 6:00 p.m. on each applicable day. 11 (e) Holidays Unaffected by Distance Notwithstanding the weekend and Thursday periods of possession of .Hi.sham. Ahmed, Mercedes Martinez and His ham Ahmed shall have the right to possession of the child as follows: I. Christmas Holidays in Even·Numbered Years " In even-numbered years, Hisham Ahmed shall have the right to possession of the child beginnii;at the time the Decembe(' 28, and Mercedes Martinez shall have the dght t() beginning at noon on December 28 and ending at 6:00 p.m. on po"m child's school is dismissed fof tbe Cltristmas school vacation and end' noon on of the child y before school resumes after that Christmas school vacation. t;.,. <>~ 2. Christmas Holidays in Odd-Numbered V~ In odd·numbered years, Mercedes Martinez shall have the right to possession ot:_~hild beginning at the time the child's school is dismissed for the Christmas sch~cation and ending at noon on December 28, and 1-fisham Ahmed shall have the ~1{6 possession of the child beginoing at noon on December 28 and ending ~~1) p.m. on the day before school resumes after that Christmas school vacation. ,~ ~~ 3. l:.id al - Fitar in All Year~ all years, Hisham Ahmed shall have the dght ro possession of the child beginnit~e day before at 6:00 p.m. imd ending at 6:00 p.m. on the day following Eid al-Fit~rcedes Martinez shall be entitled to wa.k.c up these missed days by selecting a ~~d that wou Id otherwise be that of Hisham Ahmed. The make-up weeken~~ not interfere with any holiday possession period of Hi.sham Ahmed. ~ 4. Ramada1 · II Years - In all years, Hisham Ahmed shall have the right to possession of tl;ie c ginning the day before at 6:00 p.m. and ending at 6:00 p.m. on the day followin adan. Mercedes Martinez shall be entitled to make up these missed days by sel · ga weekend that would ocheiwise be that of Hisham Ahmed, The make-up weeke all not interfere with any holiday possession pedod of Hisham Ahmed. ~CJ ~U Thar1ksglviog in Odd-Numbered Yea.rs - In odd-numbered years, Hisham Ahme9~~1 have che right to possession ofrhe child beginning at the time the child's s~~£~!smissed for the Thanksgiving holiday and ending at 6:00 p.m. ott the Sunday f~ng Thanksgiving, ~ 6. Thanksgiving in Even-Numbered Years- Jn even·nu.mbcred years, ~Mercedes Martinez shall have the right to possession of the child beginning at the time the child's school is dismissed for che Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving. 7. Child's Birthday· lfa parent is not otherwise entitled uodei:- this Standard Possession Order to present possession of the child on the child's birthday, that parent shall have possession of the child begiooiog at 6:00 p.m. and ending at 8:00 p.m. on that day, provided that that parent picks up the child froro the other parent's residence and returns the child to that same place. 12 8. Fathef's Day - Hisham Ahrned shall have the right to possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father's Day and ending at 8:00 a.m. on rhe Monday after fa.titer's Day, provided that if Hisham Ahmed is not otherwise entitled under this Standard Possession Order to present possession of the child. he shall pick up rhe child from Mercedes Martinez's residence and return the child to that same place. 9. Mother's Day - Mercedes Maninez shall have the rig4~ossession of ~lsmissed on the the child each year. beginning at the time the child's school is rei!u Friday preceding Mother's Day and ending at the time the child' , I resumes after Mother's Day. provided that if Mercedes Martinez is not othe~ otitled under this Standard Possession Order to present possession of the c~~i~shall pick up the child from Hlsharn Ahmed's residence and return the child to t~~ ..e place. ~@@ (f) Uudesignated Periods of Possession ~ Mercedes Martine~ shall have theright~~ession of the child at atl other times not specifically designated in this Standa ssession Order for Hisham Ahmed. {@} (g) General Tenns and Conditions Q Except as otherwise expressl~~~ided in this Standard Possession Order, the terms and conditions of possessior,fG~ child rhat apply regardless oftf1e distance between the residence of a parelWthe child are as follows; t. Surrender o,l~d by Mercedes .Martinez • Mercedes Maninez is OROER~D to surrend~~~ild to Hisham Ahmed at the beginning of each period of Hisham Ahmed's poss~ at the residence of Mercedes Martinez. lfa period oQssession by Hisham Ahmed begins at the time the child's $Chool is regularly dlsmi , Mercedes Martinez is ORDERED to surrender the child to Hisham Ahmed at the ~ ' · n1ng of each such period of possession at the school in which the child is en I the child is riot in school, Hisham Ahmed shall pick up the child at the res~'d - Mercedes Martinez at 6:00 p.m., and Mercedes Martine.l is ORDERED to surr~ he child lo Hisham Ahmed at the residence of Mercedes Martinez at 6:00 p.m. u these circumstances. ~~~J) ~~ 2. Returo of Child by Hisham Ahmed - H!~ham Ahmed is ORDERED to ~ the child to the residence of Mercedes Martinez at the end of each period of ~ossession. However, it is ORDERED that. if Mercedes Martinez and Hisham Ahmed Iive in the same county at toe time of rendition Qf this order, Hisham Ahmed's county of residence remains the same after rendition of this order, and Mercedes Martinez's counry of residence changes, effective on the date of the change of residence by Mercedes Martinez. Hisham Ahmed shall surrender the child to Mercedes Martinez at the residence of Hisham Ahmed at the end of each period of possession. l3 lfa period of possession by Hisham Ahmed ends at the time the child's school resumes. Hisbam Ahmed is ORDERED to surrender the child to Mercedes Martinez at the end of each such period of possession at the school in which the chHd is enrolled or, if the child is not in school, at the residence of Mercedes Martinez at 6:00 p.m. 3. Surrender of Child by Hisham Ahmed - Hisham Ahmed is OROERED to surrender the child to Mercedes Martinez.. if the child js in Hisham Ahmed's possession or subject to Hisham Ahmed's control! at the beginning of each period~~ercedes Martinez's exclusive periods of possession. at the place designated in~tandard Possession Order. ~ 4. Return of Child by Mercedes Martinez- Mel!L~Martinez is ORDERED to return the child to Hisham Ahmed. ifHlsi!a ~ed ls entitled to possession of the child, at the end of each of Mercedes z's exclusive periods of possession, ac the place designated in this Standard Pos~ n Order. 5. Personal Effects - Each conservat~RD.ERED to return with the child the personal effects that the child brought~ beginning of the period of possession. ~ ~~· . 6. Designation ofCompct1;~ult- Each conservator may designate any competent adult to pick up and return t~h1ld, as applicable. lT IS ORDERED that a conservator or a designated competeQ~lt be present when the child is picked up or returned. ~ 7. Inability to EJ.bse Possession - Each coriservator is ORDERED lo give notice to the person in p~:/!JA'ff!;~f th• ohild on cacb occasion that the con=vator will b• unabl:. to exe::~ic:~:::e:::.~:.::,~:o;,::ny::~::.:::ly made if received ~':i~ed before or at the time that notice is due. 9. ~~t1ce to School and Mercedes Martinez.~ If Hlsha.m Ahmed's time of possession child ends a.t the time school resumes and for any reason the child is not or will u~ eturned to school, Hisham Ahmed shall immediately notify the school and Merc~~arth1ez that the child will not be or has not been return.ed to sclJool. ~ O. Right of First Refusal - It i$ ORDERED that if Hisham Ahmed is ing internationally and ls scheduled to be in possession of the child. or if His ham ~ ~ ed is traveling domestically and is scheduled to be in the possession of the .child aod ~) ild would have to miss school. then Mercedes Martinez shall have the right of first refusal to care for the child. Hisham Ahmed is ORDERED to notify Mercedes Martinez of his travel schedule upon his receipt of the travel schedule. If Mercedes Martinez parent elects to care fo(' the child during the time Hisham Ahmed js traveling. then Mercedes Marrinez shall pick up the child from the residence of Hisham Ahmed at the beginning of the trip, and shall return the child to the residence of Hisham Ahmed immediately upon his ~um. This concludes the Standard Possession Ord1;:r. 14 2. Duration The periods of possession ordered above apply to the child the subject of this suit while that child is uoder the age of eighteen years and not otherwise emancipated. Except as expressly provided herein, IT IS ORDERED that neither conservator shall take possession of the child during the other conse.r:va.tor's period ofp05session unl~ere is a prior written agreement signed by both conservators or in case of an emergency. @~~ .. ~ 4. Termination oJOrders ~U .,(j; The provisions of this decree relating to conservatorship, sion. or access tenninace on the remarriage of Hisham Ahmed to Mercedes Martinez unle 0 onparent or agency has been appointed conservator of the child under chapter 153 0£ xas Family Code. ~ Child Support 1~ o~ IT rs ORP£Rf:D that Hisham Ahmed is obli~~ to pay aad shall pay to Mercedes Martinez child support of one thousand one hundred doll~~l 00.00) per month, in two installments per month of five hundred fifty dollars ($550.00) eac~, :Ui11fl'e first installment of five hundred fifty dollars ($550.00) being due and payable on December e second Installment of five hundred fifty dollars ($550.00) being due and payable on Oecemb · • 2013, and a like instaUment of five hundred fifty dollars ($550.00) being due and payable on t~rst and fifteenth day of each month thereafter until the first month following the date of the earliest~~mrrence of one of the evenlS specified below: © . I. the child reaches t~ge of eighteen years or graduates from high school, whichever occurs later, subject to the PJ~~,~ns for support beyond the age of eighteen years set out below: ~~~ 2. the child marries; Q 3. the ctlild dies; ~ 4. the child enlis~'@J~ anned forces of the United Sta.tes and begins active service as defioed by section 101 of ti~ @>'df the United States Code; or 5. the child's ~illties are otherwise removed for general purposes; or ~ If the child is ~tl 1. . ~~der cbapte( .25 of the Texas Education Code in an accredited secondary school in a program lead~~~ward a high school diploma or under section 130.008 of the Education Code in courses for joint high school and junior college credit and is complying with the minimum attendance r~quirements ofsubchapter C of chapter 25 of the .Education Code or 2. on a full-time basis in a private secondary school in a program leading toward a high school diploma and is complying with the minimum attendance requi:rements imposed by that school. 15 Withholding from EarniMs IT JS ORDERED that any employer of Hisham Ahmed shall be ordered to withhold from eamin~ for child support from the disposable earnings ofHisham Ahmed for the support of Ameen Ahmed. IT lS FURTHER ORDERED that all amount$ withheld ftom the disposable earnings of Hisham Ahrned by the employer and paid in accordaoce with the order to that employer shall constitute a credit against the child support obligation. Payrncnt of the full amount of child support orde~aid by this decree through the means ofwithholding from earnings shall discharge the child~up t(k"bbligation. Jf the amount wlthheld from earnings and credited against the ohild support obligaf ess than 100 percent of the amount ordered to be paid by th is decree, the balance due temains , bligation of Hisham Ahmed, and it is hereby ORDERED that Hisham Ahmed pay the balance due ~cly to the state disbursemenc unit specified below. ~ On this date the Court signed an Income With.holding for Su~ Payment 1~ ;~ IT IS ORDERED that all payments shall be made ~hrhe state disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San 10. Texas 78265-9791, and thereafter promptly remitted to Mercedes Maninez for the s1,1pport~ child. IT IS ORDERED that each party shall pay, when due, all fees charged to that party by th disbursement unit and any other agency statutorily authorized to charge a fee, ~ Change of Employmeot ~(j © IT IS f'URTI-IER ORDERED that ~am Ahmed shall ootify this Court and Mercedes Martinez by U.S. certified mail, return receipt r~~ of any change of address and of any terminal ion of employment. TJ1is notice shall be give later than seven days after the change of address or the termination of employment. This nofi2e', r a subsequent notice shall also provit;!.e the current address of His ham Ahmed and the name and _aj~ss of his current employer, whenever that infonnation becomes available. ~ Q~~ Clerk's Duties IT IS ORDER~at, on the request of a prosecuting attorney, the title IV-D agency, the ftiend of the Court, a do~~elations office, Mercedes Martinez. Hisham Ahmed, or ao attorney representing Mercedes Martine~ish.am Ahmed, the clerk of this Court shall cause a certified copy of the Income Withholding fo~ort to be delivered to any employer. l/eallh Care;:j I. IT IS ORDERED that Hisham Ahmed and Mercedes Martinez shall each provide medical support for the child as set out ln this order as additional child support for as long as the Court may order Hisham Ahmed and Mercedes Martinez to provide support fur the child under' secrions l 54.00 I and I 54.0()2 of the Texas Family Code. Beginning on the day Hisham Ahmed and Mercedes Martinez's actu&J or potential obligation to support the child under siections 154.00 I and I 54.002 of the Family Code tenn({latcs, IT IS ORDERED that Hisham Ahmed and Mercedes Martinez are dischai;ged from the 16 obligations $et forth in this medical support ordci:-, except for any failure by a parent to fully comply with those obligations before that date. "Health Jnsurance" means insurance coverage that provides basic health-care services, including usual physician services, office visits, hospltali~tion, and laboi:atory, X-ray, and emergency services, that may be provided through a health maintenance organization or other private or public ~r~ani.zation, other than medical assistance under chapter 32 ofrhe Texas Human Resources Code. ~ ®) "Reasonable cost" means the cost of health insura.nce coverage for a chil does oot exceed 9 percent of 1-lisham Ahmed's annual resources. as described. by section 154.06~ the iexas Family Code. <> ~ ~~ . "Reasonable and necessary health-care expenses not paid by in~~C'e and incurred by or on behalfofa child" include, without limitation. any copaymeots for offl~."1sits or prescription drugs. the yearly deductible, if any, aod medical. surgical, prescription dn.1g, ~"ti« health-care services, dental, eye care. ophthalmological, and orthodontic charges. These reasona~~{f necessary health-<:are expenses do not include expenses for travel to and from the health-<:are J> er or for nonprescription medication. {@> "Furnish" means: Q a. to hand deliver the document ~erson eighteen year$ of age or older either to the recipient or to a perso~ is eighteen years of age or older and pennanently resides with the recipiitf~,,r . b. to deliver the docume the recipient by certified rnaH, teturn receipt requested, to the reci 1 's last known mailing or residence address; or c. to deliver the doc · t to the recipient at the recipient's last known mailing or residence addt: mg aoy person or entity whose principal business is that of a courier or d · 1 r of papers or documents either within or outsic!e the United States. 3. Findings on H.~~sura.oce Availability· Having consideted the cost, accessibility. and quality of health iosurance ~ge available to the parties, the Court finds: Health insuran~~~vailable to Hlsharn A.hmc:d at a reasonable cost from another source, including th.e program~f section 154.1826 of the Texas Fam Uy Code ro provide health insurance lt1 title IV~D cases. ~ IT IS R~ER FOUND that the following orders regarding health-care coverage afe in the best interest oft~~;..' As additional child support. Hisham Ahmed is ORDERED to cor\tioue to maintain health Insurance for the child who is the subject of this suit that covers basic health-care ser:Yices, including usual physician services, office visits, hospitalization, laboratory, X-ray. and emergency services. 17 Hisham Ahmed is ORDERED to maintain such health insurance in full force and effect on the child who is the subject of this suit as long as child suppo.rt is payable for that child. Hisham Ahmed is ORDERED to convert any group insurance to individual coverage or obtain other health insurance for the ch lid within fifteeo days of tenu ii) at ion of his employment or other disqualification from the group insurance. Hisham Ahmed is ORDERED to exercise any conversion options or acquisition of new health Insurance in such a manner that the resulting insurance equals or exceeds that in effect immediately before the change. Hisham Allmed is ORDERED to furnish Mercedes Maninez a true and coJTec~ of the health insurance policy or certification and a schedule of benefits within lO days of the s~· ~fthis order. Hisham Ahmed is ORDERED to furnish Mercedes Martioe.z the insurance cards , y other forms necessary for use of the insurance within IO days of the signing of this ordei:- ~~ ' Ahmed is ORDERED to provide, within three days of receipt by him, to Mercedes Mau~any insurance checks, other payments. or explanations of benefits rehlting to any medicaJ expens~ the child that Mercedes ~~~fil~~. I~ Pursuant to se<;tion 1504.051 of the Texas Insurance Code,~~OROERED that ifHisham Ahmed is eligible for dependent health coverage but fails to app~l:v. ~~taio coverage for the child, the insui:er shall enroll the child on application of Mercedes Manin others as authorized by law. ~ Pursuant to section I54.18J(c) of the Tex.as Famil~e, the ~asonable and necessa.y health- care expenses of the child that are not reimbursed by h~~r1surance are allocated as follows: Mercedes Martinez is ORDERED to pay 50 percent and Hisham""~ed is ORDERED to pay 50 percent of the unreimbursed health~care expenses if, at the time t~~nses are incurred, Hisham Ahmed is providing health insurance as ordered. (J.,, 'Y ~ The party who incurs a health-care e ~eon bebalf of the child is ORDERED to submit to the other party all forms, receipts, bills, statem and explanations of benefits reflecting the uninsured portion of tbe health-<:are expenses wit days after he or she receives them. The non incurring party is ORDER.ED to pay his or her , tage of the uninsured portion of the health-care expenses either by paying the health-care prov 'directly OT by .reimbursing the incurring party for any advance payment exceeding the incurrin~'s percentage ofthe uninsured portion of the health-care expenses within thirty days after the non~ 1 g party receives the forms, receipts, bills, statements, and explanations of benefits. U The"' provis~ly to all uocoimbuffied health-.:are expenses of the child who is the subjoct of this suit insurance :hat=~··~~~~~::~"::::;;;D:::·:: pro~dcs second~ h•~th co~~~~cthe child, both parties shall cooperate fully with regard to the handling end filing of claims wi~ insurance carrier providiog the coverage In order to maximize the benefits available to the child and to ensure that the party who pays for health-care expenses for the child is reimbursed for the paymetlt from both carriers to the fullest ex.tent possible. 6. Compliance with Insurance Company Requirements Each party is ORDERED to p confonn to all requirements imposed by the terms and conditions of the policy of health insurance covering the child in order to assure the maximum reimbursement Of direct payment by tile insurance company of the incurred health-care expense, including but not limited to requirements for advanc~ notfoe to any carrier, second opinions, and the like. Eacb party is ORDER£D to use "preferred providers," or 18 services within the health maintenance organization. if applicable. Disallowance of the bill by a health insurer shall not excuse the obligation of either party to make payment. Excepting emergency health 7. Claims - Except as provided in this paragraph, the parry who is not carryjng the health insurance policy covering the ch.lid is ORDERED to furnish to the party carrying~he ~li0", within fifteen days of receiving them, any and all fonns, receipts, bills, and statements refl the health-care expenses the party 11ot carrying the policy incurs on behalf of the child. In accor aii with section 1204.251 and 1504.0S5(a) of the Te~as Insurance Code. lT IS ORDERED that~e arty who is not carrying the health insurance policy covering the child, at that party's option• ~file any claims for health-care expenses directly with the •nsurance carrier with and from who~~erage is provided for the benefit of the child and receive payments directly from the insurance c~~"Y~. Funher, for the sole purpose of section 1204.25 l of the Texas lnsurance Code, Mercedes ez is designated the managing conservator or possessory conservator of the child. ~ o~ The party who is .carrying the health insurance policy c~g the child is ORDERED to submit all forms .required by the 1nsumnce company for payment o~~ucsement ofhealth..care expenses incurred by either party oo belialfofthe child to the insur~arrii::r within fifteen days of that party's receiving any form, receipt. bill. or statement reflectingJ~xpenses. 8. . Trust for payments Constructive ~:~ d - IT JS ORDERED that any insurance payments received by a party from the health in!r carrier as reimbursement for health-care expenses incurred by or on behalfofthe child shall belon the party who paid those expenses. IT IS FURTHER ORDE.RED that the party receiving the insu ayments is designated a constructive trustee to receive any insurance checks or payments for healt e expenses paid by the other party, and the party carrying the policy shall endorse and forward th s or payments. along with any explanation of benefits received. to the other party wirbio thr of receiving them. 9. WARNING - A P~ENT ORDERED TO PROVlDE HEALTH INSURANCE OR TO PAY THE: OTHER. PARENa!~~IONAL CHILD SUPPORT FOR THE COST OF HEALTH INSURANCE WHO FAILS SO IS LIABLE FOR NECESSARY MEDICAL EXPBNSES Of THE CHILD, WITHOU~ ARD TO WHETHER THE EXPENSES WOULD HAVE BEEN PAID IF HEALTH INSURANCf.: BEEN PROVIDED, AND FOR THE COST OF HEALTH INSURANCE PREMfUMS OR CON UTJONS, IF ANY, PAID ON BEHALF OF THE CHILD. ~~ Miscellaneous Chi~pport Provisions No ~~or Informal Paym~DJ§ JT JS OR.DBRE:D that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered aod that any direct payments made by Hisham Ahmed to Mercedes Mattinez or any expenditures incurred by Hisham Ahmed du.ring Hlsharn Ahmed's periods of possession of or access to the child, as p-cescribed in this decree. for food, clothing, gifts. travel, shelter, or entertainment are deemed in addition to and not io lieu of the support ordered in this decree. 19 Suqport as Obligation Qf.E5!.a!S IT IS ORDERED that the provisions for child support in this decree shall be an obligation of the estate of Hisham Ahmed and shall not tenninate on the death of Hisham Ahmed. Payments received fot the benefir of the child. including payments from the Social Security Administration, Department of Veterans Affairs or other governmental agency or life insurance proceeds, annuity payments, trust distributions, or retirement survivor benefits, sha.11 be a credit against this obligation. Any remaining balance of the child support is an obligation of Hisham Ahmed's est.ate. Iennination of Orders on Remarriage ofJ>arties but Not on Death ofOb!ig~~ The provi$ions of this decree relating to current child support tenninate ~remarriage of Hisham Ahmed to Mercede!5 Martinez unless a nonparent or agency has b~n inted conservator of the child under chapter 153 of the Texas Family Code. An obligation to pa.>.?. · support under tl:ljs decree does not terminate on the death of Mercedes Martinez but continu an obligation to Ameen Ahmed. !.f!J~ Medical Not(fication 1~ <>~ · Eac)l party is ORDERED to infonn the other party wi~~ hours of any medicill condition of the child requiring surgical intervenrion, hospitalization, or bo~\r@'"'- Our Family Wizard )~ lT IS ORDERED that Mercedes Martine 7flfn~isham Ahmed shall register and pai:ticipate fully in the OurFamily Wizard.com program. IT IS F~ER ORDERED thl
Mercedes Martinez and His~hmed are each ORDERED to utili:i:e this program so that their communication is documented byifing the Message board, and to provide a method by which they may advise each other of his/her sche nd the child's schedule and to communicare concerning scheduling issues or chariges by using t'JJ, ~ 's calendar features. The parties are ordered to utilize this program to schedule and ad~each other of scheduling changes or requests with regard to the parenting time schedule. Each pa~ ordered to be responsible for payment of his/her annual cost of a subscription to Ourfam~lzard.com, which sball be pald by each party to OurFamilyWizard.com immediately upon c mg an authodzed representative of OurFamilyWizard.com. ED that panicipalion by each parent in OurFarnilyWizard.com i!5 mandatory until court of continuingjurisdjctlon. IT lS ORDERED that each party shall enter the following information into OurFamilyWiz.ard.com so that the information is available to the other party: a. extracurricular activity informatioi:'I of the ch\ld, including time, date and schedule of events~ 20 b. dates of physicaVmental health appointments for the child, including the purpose of the appointment; c_ information oJJ medical, dental, and optical providers for the child; and d. information regarding the child's school activities. IT rs ORDERED that for an extracurricular activity for the child for which ~heris an internet - based calendar. a party shall enter sufficient infonnation so that the other party can lo tne schedule on the internet. For an extra-curricular activity for the child for which there is nol_~ -based calendar. each party is ordered to provide the other party with sufficient information so tha~11arty can obtain a calendar of events. ~ o~ 11' lS ORDERED that the parties shall promptly post the followin~nnatioo on the Ourf a.milyWiia.rd.com website within the specific time frame after the information: a. knowledge that the child will not be attending a !{_~uslyscheduled extracurricular , activity - immediately, for events occurring th~; or, for events in the future, as soon as practicable under the circumstances. bu~'Wn 8 hours of becoming aware the child will not attend the activity; ~ b. child's non-eme.rgency appoiohnents,,'~~ealth-care providers-within 24 hours' of scheduling; ~ c. change in the identity of a hear&re provider for the child -within 24 hours' of the change: It®/ d. change in health insur~Qwithin 24 hours of the change; aod e, change in the chilf ivities or school schedule - within 24 hours of the change. f. information ~~esignated competent adults who are authorized to pick-up or receive the child at~ginning and end of periods of possession; g. infor~~and notice:: regarding nights the cMld will be spending away from a parent's i ~· including the name, address, and telephone number of the person with whom h. i! th i ~~omJation will be staying (or who is •n cbarge of the child's welfare and safety) ifs parent ift present. regro-ding health insurance reimbursements. The panies shall utilize the lnfomiation 0ank. MyFiles, and Expense Log tools on the website to have a future record of all potentially reimbursable expenses in order to mitigare the necessity to Iitigate in the future over such matters. lf a parent does not have the capability of scanning a required document and attaching the electronic version for posting to the website, he or she shall post a description of the document on the website and mail a hard copy of the document by regular fii:st class mail within 2 business days following the posting of the electronic announcement. Each parent shall preserve the original of any scanned document thar is posted. 21 IT rs ORDERED that tlte parties shall routinely use and check •1our Family Wizard'' to remain infonned of the child's school activities, school projects and testing schedules, the child's activities, medical appointments. and other commitments and obligations. and each parent shall have the obligation to update relevant information as it becomes known to that parent. Each party is ordered to respond to the other party's request or notification within 48 hours if a response is required. However, if a pa.fry will be traveling fof a period of time, he Of she should post the time period that he or she will be unavailable and said 48 hour time period shall resum~he date that the traveling party returns. ~ IT IS FURTHER ORDERED that the parties shall not communicate via «illl~ne or texting, eic:cept in an emergency or urgent sil\Jatioo regarding rhe child that must be acrefl~;-in less than 24 hours. In an emergency or urgent situation or when sufficient time would nQt ~the oth« party to receive the. infurrnation through Our Family Wizard, the parties are orde~mmunicate only by use of telephone or text messaging for short, specific messages wlljct\ invol~~ child's schedule!! or well~ being. The parties are ordered to l')ot use any e(ectrooic methods ofc~lfuication in a repetitive and harassing manner. The parties are ordered to suounarize any $uch ~~elephonic communication by a posting to the Our Family Wizard website. · :~ lnformalion Regarding Parties ~ The infonnation required for each party by sectto!!i;li9.006(a) of th• Texas Family Code Is as follows: ~t~ ~ Name: Hisham Ahmed Social Security number: & xx.1Mc~ 7 U Driver's license number: 20n5iw2 Issuing s1ate; Texas Current residence address: ~~· Overdale Drive, Pearland, Texas 77584 Mailing address: W. Overdale Drive, Pearland, Texas 77584 Home telephone number: R 3-419-9350 Name of employer: VSaharaCargo LLC. Address of employment: ~ 332 S. Wayside, Houston, Texas 77011 Work telephone numbe@ 713-419-9350 Name: Mercedes Ma~rt'nU Social Socurity
EACH PERSON WHO rs A. l-ARTY TO THIS ORDER JS ORDERED TO NOTlFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAJ LING ADDRESS, HOME TELEPHONE NUMBER. NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S UCENSB . NUMBER, AND WORK TELEPHONE NUMBER. THE PARTY JS ORDERED TO GJVE NOTICE OF 22 AN INTENDED CHANGE IN ANY OF THE R.EQUIR.EO INFORMATION TO EACH OTHER PARlY, THE COURT, AND THE STATE CASE REGISTRY ON OR BEFORE TH~ 60TH DAY BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE Cl-IANGE IN SUFFIClENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS OROERBD TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE PA TE THAT THE PARTY KNOWS OF THE CHANGE. THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER~ PR , THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON a YlRTUE Of THIS ORDER, IS UNDER. AN OBLIGATION TO PAY CHILD SUPPORT OR LED TO POSSESSION OF OR ACCESS TO A CHILD. (j FAILURE BY A PARTY TO OBEY THE ORDER Of THIS C~ PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGAP'(~ TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A flNDfNG O~~TEMPT MAY BE PUNISHED SY CONFrNEMENT fN JAIL FOR UP TO SIX MONTHS, AF~~ ur TO $500 FOR EACH VIOLATION. ANO A MONEY JUDGMENT FOR PAYMEN'J<.~ATTORNEY'S FEES AND COURT COSTS. ~ r@- Notice shall be given to the other party by deliveri~copy of the notice to the party by registered or certified mail, return receipt requested. N~ shall be given to the Court by delivering a copy of the notice either in person to the clerk of this . or by registered or certified mail addressed to the clerk at 201 Caroline, Houston, Texas 77002. ( shall be given to the state case re:gistxy by mailing a copy of the notice to State Case Regis , ntract Seivlces Section, MC046S, P.O. Box 12017, Austin, Texas 78711-2017. ©> NOTICE TO ANY PEACE ~FFI OF THE STATE OF TEXAS: YOU MAY USE REASONABLE EFFORTS TO ENF HE TERMS OF CHll.. P CUSTODY SPECIFIEO IN THIS ORDER. A PEACE OFFlCER WH lES ON THE TERMS OF A COURT ORDER ANO THE OFfJCER'S AGENCY ARE ENTI' TO THE Ai;>Pl..,lCA.BLE IMMUNITY AGAINST ANY CLAIM, ClVJL OR OTHERWl EGARDING THE OFFICER'S GOOD FAITH ACTS f>ERPORMED lN THJ:: SCOP HE OFFICER'S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE Tt JLD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT DER THAT lS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT BE PUNISHABLE BY CONFINEMENT JN JAIL FOR AS LONG AS TWO YEARS ANDA:). E Or AS MUCH AS $I 0.000. IC..~ • WA~NITO PAJlTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR PO ON OF OR ACCESS TO A CHlLD MAY RE.SULT TN FURTHER UTlOATION TO ENPOR E ORDER, INCLUDING CONTEMPT OF COURT. A fJNDING Of CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL POR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS. FAlLURE Of A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE PLACE AND lN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S NOT RECElVING CREDlT FOR MAKING THE PAYMENT. 23 FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYrNG THAT PARTY COURT-ORDERED POSSESS.ON OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY. Divi:don tfMarital Esta/I/ The Court finds that the following is a just and right division of the parties' ma~tf._estate, having due regard for the rights of each party and the child of the marriage. ~ ~~ Property to Husband U~ IT IS ORDERED AND DECREED that the husband, Hlsham Ahm(b~warded the following as his sole 3Jld separate property, and the wife is divested of all right. title, ~~st, and claim in and to that property: ~ @@ A~ H-1. All household furniture, fumishings, fixtures, good~Wobjects, colleccibles, appliances, and equipment in the possession of the husband or subject to his s~~ontrol. H-2. ' . All clothrng,Jewe a~ Iry. and other personal e~~· the possession of the husband or subject to his sole control. ~ H-3. All sums of cash in the possession of t~sbimd 01' subject to his sole control, including funds on deposit, together with accrued but unpaid~~st. in banks, savings institutions, or other financial institutions. which accounts stand in t~k.,.Wand's sole name or fi-om which the husband has the sole right to withdraw funds or which are subje~ the husband's sole control. H-4. A.II policies of life insuran~cluding cash values) insuring the husband's life. ~ H-5. The 20 I 0 BMW 3:28 r vehicle, vehicle identification number u f?llo. ~WJt.r':fl "N '""~~ ".lL"'1$, together w prepaid insurance, keys, and title documents. H-6. The busines~k~Sahara machinery, equipment, inve Cargo, including but not limited to all furnitu.re, fixtures. cash, receivables, accounts, goods, and supplies; all personal property used in connection with~ atioo of the business; and all rights and privileges, past, present, or future. arising out of or j · nection with the operation of the business. Prnnertv toJ!' ~ IT IS Q~ED AND PE.CREED that the wife, Mercedes Martine4 is awarded the following as her sole a~arate property, and the husband is divested of all right title, interest, and claim in and to that property: W-1. All household furniture, furnishings. fixtures, goods. art objects, collectibles, appliances. and equipment in the possession of the wjfe or subject to her sole control. W-2. All clothing.jewelry, and other personal effects in the possession of the wife or subject to her sole control. 24 W-3. All sums of cash io the posse.ssion of rhe wife or subject to her sole control. including funds on deposit, together with accrued but unpaid interest. in banks, savings institutions, or other financial institutions. which accounts stand in the wife's sole name or from which the wife has the .sole right to withdraw funds or which are subject to the wife's sole control. W-4. All policies oflife insurance (including cash values) losllring the wife's life. W~5. l " ...1-s.c 1 \'2.i; 4 :J~~"°''t'"l The 2004 Chevrolet Tahoe motor vehicle. vehicle identification number , together with all prepaid insurance, keys. and title documents. W-6. The following ltems, wJ1ich she may pick up fl'om Husband * upo~rs of her notice to do so: scrapbook Wife made. umbilical cord set with baby's hair. silver la~~~;ictures, all other pictures or copies of pictures on computel"S, baby clothes plastic tubs, three-~L~utfit from Wife's mother, and the child's first Halloween costume. ~ (>~ Division of Debt ~ Debts to Husband ¢ ~ ~ IT IS ORDERED AND DECREED that the lrnsband.,~am Ahmed, shall pay, as a pan of the division of the estate of the parties, and shall indemnify an~~he wife and her property hannless frorn any failure to so discharge. these items: /?~ ¢~ H-1. The balance due, includin~~pal. interest, and all other charges, on the: promissory note payable to Looe Star Bank, and g ~-pan of the purchase price of and secured by a lien on the 20 Io BMW :3281 motor vehicle aw~e to husband. © H-2. Any and all debts. charges. ~ilities. and obligations in Husband's name or subject to his sole control ~ H·3. All debts, charges, 1~'1fies. and other obligations incurred solely by the husband from and after October I. 2010 unless e~ess provision is made in this decree to the contrary. H-4. All encumbra~advalorern truces. liens, assessments. or other charges due or to become due on the real and ~~~I property awarded to the husband In this decree unless e.lS.press provision is made in this ,~ree to the contrary. ¢~y Debts to Wife W IT J~S~~ED AND DECREED thatthe wife, Mercedes Martinez, shall pay, as a part of the division of th e of the parties, and shall indemnify and hold the husband and his property harmless from any fai o so discharge. these items: W~ I. Any and all debts, c.tiarges, Uabrliries, and obligati<;ms in Wife's name or subject to hei: sole control W~2. All debts, charges, liabilities. and other obligations incurred solely by the wife from and after October 1, 2010 unless express provision is made In this dee"" to the contrary. 25 W-3. All encumbrances, ad valorem taxes, liens, assessments, or other charges due or to become due on the real and personal property awarded to the wife in this decree unless express provision is made in this decree to the cont{'ary. Confirmatfo!l.Qf Separate Propertv The following is confirmed as Wife's separate property: WSP-1. Tile: 2000 Chevrolet Silverado motor vehicle. vehicle identification n~r ~-~----·• together with all prepaid insurance, keys, and title document$.~~ ~ ~u IT IS ORDERED AND DECREED that each party shall send to th~~er party, within three days of its receipt a copy of any correspondence from. a creditor or taxing aUJh~·~~nceming any potential liability of the other party. Q~ Attorney's fees o~ To effect a.11 equitable division of the estate of the P.~nd as a part ofche division, and for service5 rendered in cormectioo with conservatorship and~~ ?f the child, each party shall be l'eSPonsible for his or her own attorney's fees, expenses0 ~costs incurred as a result of legal representation in this case. ~ IT IS ORDERED AND DECREED that ~ments made to the other party in accordance with the allocation provisions for payment offederal.1kome taxes contained in this Final Decree of Divorce are not deemed income to the party reci;ivi~l~; payments but are part of the property division and necessary for a just and right division of th ies' estate. No Alimony ~· O· IT IS ORDERED AND Q.a<;REED that no provision of this decree shall be construed as alimony mlder the Internal Revenue CodG~ept as this decree expressly provides for payment of maintenance or alimony under the Internal tJ~ Code. Court Costs 0~ lT JS ORD~ AND DECREED that costs of court are to be borne by the party who incurred them. ~~ Dischargefr4§tscovery Retemion R.equiremenr · IT IS OR.PERED AND DECREED that the parties and thofr respective attomeys are discharged from the requireme:nt of keeping and storing the documents produced in this case in accordance with rule l 91.4(d) of the Texas Rules of Civil Procedure. Decree Acknowledgment Petiliof'lcr:. Hisham Ahmed, and Respondent, Mercede5 Martinez. each acknowledge that before 26 ' . signing this Final Decree of Divorce they 11.ave read this Final Decree of Divorce fully and oompletely, have bad the opportunity to ask any questions regarding the same, and fully understand that the contents of this Final Decree of Divorce constitute a full and complete resolution of this case. Petitioner and Respondent ac\\11owledge that they have volunta.-ily affixed their signatures to this Final Decree of Divorce. believing this agreement to be a just and right division of the marital debt aod assets, and state thar they have not signed by virtue of any coercion. any duress, or any agreement other than those specifically set forth in this Final Decree of Divon:e. Indemnification ~ Ea.ch party represents and warrants that he or she has not incurred any o ng debt, obligation, or other liability on which the other pany is or may be liabfe. otheC" ~~ e described in this decri;:e. Each party agrees and IT IS ORDERED that if any claim, action~or ~ding is hereafter initiated seeking to hold the party not assuming a debt, an obligation. a lia · , an act, or an omission of the other party liable for such debt, obligation, liability, act or omission f;> other party, that other party will~ at his or her sole e~pense, defend the party not assuming the de~ gation, liability. act. or omission of the other party against any such claim or demand, wh~"'6f not well founded, and will indemnify the party nor assuming the debt. obligation. liability, act._@omJssion of the other party and hold him or her hannless from all damages resulting from the cl~""1>r demand. ~- Damages. as used in this provision, includes any r~able loss, cost, expense, penalty, and other damage, including without limitation attorney's fe~~d other costs and C)Cpeoses reasonably and necessa.dly incurred in enforcing this indemnity. ""~ IT IS ORDERED that the indemnifyin!i~ll reimburse the indemnified party, on demand, for any payment made by the indemnified part)'. ny time after the entry of the divorce decree to satisfy any judgment of any court of competent ju~~,$~ · nor in accordance with a bona fide compromise or f~y damages to which this indemnity relates. settlement of claims, demands. OC' aci4!tions The parties agree and JT IS ED that ea.ch pany will give the other party prompt written notice of any litigation threatened ~\.n ed against either party that might consdrute the basis of a claim for indemnity under this~~ Clar{fving Ord~rs {)©) Without a:ffccti,Q~ finality of this Final Decree of Divorce, this Court expressly reserves the right to make orders n~Sry to clarify and enforce this decree. ReliefNot Grarue# ITl~~ERED ANO DECREED that all relief requested in tllis case and not expressly granted is denied. This 1S a finaljudgment, for which let execution and all writs and ptocesses necessary to enforce this judgment issue. This judgment finally disposes ofall claims and all parties and is appealable. Date ofJudgment 27 . 10/31/2013 ~ Oct. 23. 16:37 2013 3:47PM 7138029920 DAG 60~ PAGE 133/03 No. 1513 P, 29/30 · Dato afJudgme111 sroNao 011 _ _l-#-r /i~'~ +-.fL._2<. . _·__ . . . A..'Pl'~OVBD AS TO 1:70llM ONL'V: c~ :anos law Firm, P.c. 17107 Feather Craft Lant Webster, Texas 77S98 Tel: (lSl).133-30.30 . ::,r~ cinafli: -, Attorney for • er State Bin-No. 240MOS8 TI1e La.w Oftlce of'Kid Mattrn 440 Louuiana, Su~ 900 Houston, TeXBS 77002 ?13/2.lfi-7794 1i31216-m2. tag 28 .... ~ .. APPROVED ANO CONSENTED TO AS TO BOTH fORM AND SUBSTANCE: Periti;.)eTtfuham Ahmed Respondent Mercedes Martinez 29 AFFIDAVIT COUNTY OF HARRIS § § STATE OF TEXAS § COMES NOW CHRISTINA S. TILLINGER AND STATES UNDER OATH: MY NAME IS CHRISTINA S. TILLINGER. THE FACTS STATED IN THIS AFFIDAVIT ARE WITHIN MY PERSONAL KNOWLEDGE AND ARE TRUE AND CORRECT. 1. I AM OVER THE AGE OF 18 AND HA VE KNOWLEDGE OF THE PLEADINGS AND RULINGS IN THE CASE OF HISHAM AHMED AND MERCEDES MARTINEZ IN CAUSE NO. 2013-08674. 2. THE COURT PAPERS ATTACHED TO THIS RESPONSE ARE TRUE AND ACCURATE DOCUMENTS FOUND IN THE CIVIL RECORDS OF THE DISTRICT CLERK OF HARRIS COUNTY, TEXAS. SIGNED THIS 27rn DAY OF JULY, 2015. SIGNED UNDER OATH BEFORE ME ON JULY 27rn, 2015. e ERIN L PATIERSON NOTARY PUBLIC STATE Of TEXAS MY COMMISSION EXPIRES NOllEMllER 1, 2018 1 NOT ARY PUBLIC IN AND FOR TEXASI. che duty of care, control. ~ction, and reasonable discipline of the child;
2. Weekend ~ssion Extended by a Holiday -
5. Extended Summer Possession by Hisham Ahmed -
4. Extended Summer Possession by l-Hsham Ahmed -
3. Nonin.terfimmce with Posse.vsion
2. Definitions ~
4. Provision of Health-Care Coverage -
in Re Mercedes Martinez (in Re Mercedes Martinez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.