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

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

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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

_________________________________________

Appellant’s Response

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

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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.

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,

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/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 Trial Court attorney for Appellee: Kristen Black, 400 Texas Avenue, Suite C, Webster, Texas 77598 mzim@zimlaw.com

Method of service: Electronic Service Date of Service: 1-4-2015 /s/ Walter P. Mahoney Jr ___________ Walter P. Mahoney, Jr. Attorney for Appellant