in the Interest of K.M.M and M.W.M., Children

• Court: Court of Appeals of Texas
• Decided: January 5, 2015
• Docket: 14-14-00239-CV
• Status: Published

Opinion

ACCEPTED 14-14-00239-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 1/4/2015 12:40:33 PM CHRISTOPHER PRINE CLERK

Appellant’s Response to Request FILED IN 14th COURT OF APPEALS Appeal No. 14-14-00239-CV HOUSTON, TEXAS 1/5/2015 10:07:00 AM CHRISTOPHER A. PRINE Clerk In the Court of Appeals

Fourteenth District at Houston Texas

Houston, Texas

__________________________________

MWM Appellant v. KMM , Appellee

__________________________________ Trial Court Case No. 2003-06447 The Honorable Bonnie Crane Hellums 247th Judicial District Court, Harris County, Texas _________________________________________

Appellant’s Response

Walter P. Mahoney, Jr. Attorney for Relator State Bar No.: 12844600 4915 Holly Avenue Pasadena, Texas 77503 (281) 998-9450 (281) 998-9430 ATTORNEY FOR APPELLANT Identity of Parties and Counsel

The following is a list of all parties and all counsel in this matter:

Appellant: MWM

Trial Court Attorney for Appellant:

Walter P. Mahoney, Jr., 4915 Holly, Pasadena, Texas 77503

Appellee: KMM

Trial Court attorney for Appellee:

Kristen Black, 400 Texas Avenue, Suite C, Webster, Texas 77598

mzim@zimlaw.com

Trial Court Judge:

The Honorable Bonnie Crane Hellums, 247th Judicial District Court, 201 Caroline ,

Houston, Texas 77002

i

2 Appeal No. 14-14-00239-CV

In the Court of Appeals Fourteenth District Court of Texas Houston, Texas __________________________________

MWM v. KMM, __________________________________

Trial Court Case No. 2006-45711 The Honorable Bonnie Crane Hellums 247th Judicial District Court, Harris County, Texas _________________________________________

Walter P. Mahoney, Jr. Attorney for Appellant State Bar No.: 12844600 4915 Holly Avenue Pasadena, Texas 77503 (281) 998-9450 (281) 998-9430 ATTORNEY FOR APPELLANT Statement of the Case

This Court has requested that the Appellant identify his basis for an appeal of a

temporary order in a case under the Family Code. Appellant is not seeking to appeal a

temporary order but rather from the trial court’s decision to set aside a final agreed order.

1.Before this pending application for a Bill of Review Appellant filed a Petition to Modify

his monthly support obligation on January 25, 2011 and alleged a change of circumstances

warranted a modification. He further alleged that the modification should be made

retroactive to the earlier of the service of citation on Respondent or Respondent’s

appearance in the lawsuit.

2. Appellant’s position in the trial court was that the obligation should be lowered based

upon a decrease in his available resources and that the modification was in the best interest

of the children.

3. Appellee filed an original answer on November 30, 2011. Appellee further filed a motion

to confirm child support arrearage on December 15, 2011 in the same cause. The parties

entered an agreed order resolving all pending issues before the trial court on March 5, 2012.

4 Both parent parties had independent counsel of their own choosing and represented that the

findings and orders presented were in fact agreed orders.

On April 18, 2013, Appellee then filed this Petition for Bill of Review contending that the

Agreed Judgment of March 5, 2012 was secured by fraud and requesting that the Judgment

Modifying the Prior order be set aside. Upon the trial the Court granted the bill of review

and set aside the judgment modifying the prior order. Contrary to the argument Appellee

makes in her brief Appellant contends this is a final judgment from which a direct appeal is

allowed. In her request for relief in the trial court below Appellee does not seek or request

any additional relief other than the setting aside of the Agreed Order. Appellant contends

the evidence did not support the requested relief and that the Bill of Review should have

been denied.

This Court has requested that the Appellant identify his basis for an appeal of a

temporary order in a case under the Family Code. Appellant is not seeking to appeal a

temporary order but rather from the trial court’s decision to set aside a final agreed order.

Prayer

Wherefore Premises Considered Relator prays that this Honorable Court, after examining

this response and the applicable law reverse the decision of the trial court and remand the

case to the trial court for further action consistent with the decision of this Court.

Respectfully submitted, /s/ Walter P. Mahoney Jr. _______ Walter P. Mahoney, Jr. Attorney for Appellant State Bar No.12844600 4915 Holly Avenue Pasadena, Texas 77503 (281) 998-9450 (281) 998-9430 Attorney for Appellant

Certificate of Service

I certify that a true copy of this Appellant’s Response was served in accordance with

rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party’s lead counsel

as follows:

KMM, Appellee

Kristen Black, 400 Texas Avenue, Suite C, Webster, Texas 77598

Method of service: Electronic Service Date of Service: 1-4-2015

6 /s/ Walter P. Mahoney Jr ___________ Walter P. Mahoney, Jr. Attorney for Appellant