Mark Thompson, Sr. v. Karen Smith

Opinion

ACCEPTED 01-15-00010-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 5:17:36 PM CHRISTOPHER PRINE CLERK

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS NO. 01-15-00010-CV 4/8/2015 5:17:36 PM CHRISTOPHER A. PRINE Clerk

MARK THOMPSON, SR., Appellant,

V .

KAREN SMITH, Appellee.

On Appeal from the 246th District Court Harris County, Texas Trial Court Cause No. 2013-03434

APPELLANT,S BRIEF

CORDELL & CORDELL, P C. 1330 Post Oak Boulevard, Suite 1800 Houston, Texas 77056 Tel: (832) 730-2969, Fax: (832) 730-2970

By: /s/Nida C.Wood _

Nida C.Wood State Bar No. 24072034 E-mail: nchaudhriwood@cordelllaw . com

Bryan L. Abercrombie State Bar No. 24029411 E-mail: babercrombie@cordelllaw . com

Attorneys for Appellant

ORAL ARGUMENT REQUESTED / IDENTITY OF PARTIES AND COUNSEL

Pursuant to the Texas Rule of Appellate Procedure 38.1(a), Appellant, Mark

Thompson, Sr., provides the following complete list of all parties and counsel to

the trial court's judgment being appealed:

Appellant: Mark Thompson, Sr. 1800 James Bowie Drive #85 Baytown, Texas 77520

Trial/Appellate Counsel for Mark Thompson, Sr. Nida Chaudhri Wood CORDELL & CORDELL, P.C. 1300 Post Oak Blvd., Suite 1800 Houston, Texas 77056 State Bar No. 24072034 Email - nchaudhriwood@cordelllaw.com

Bryan L. Abercrombie CORDELL & CORDELL, P.C. 1300 Post Oak Blvd., Suite 1800 Houston, Texas 77056 State Bar No. 24029411 Email - babercrombie@cordelllaw.com

Appellee: Karen Smith 709 CR401 Dayton, Texas 77535

Trial Counsel Karen Smith Sally A. Jones ELLIOTT, HEINLEIN & JONES, P.C. P O Box 1446 . .

Crosby, Texas 77532 State Bar No. 10954700 Email - sjones@ehjlawpc.com - 1 - Appellate Counsel Karen Smith G Troy Pickett .

BUTEL & PICKETT PLLC 2222 Bissonnet Street, Suite 203 Houston, Texas 77005 State Bar No. 24072757 Email - gtpservice@butelpickett.com TABLE OF CONTENTS

I . Identity of Parties and Counsel.1

II. Table of Contents.3

III. Index of Authorities.5

IV. Statement of the Case..7

V . Issues Presented.8

VI. Statement of Facts...9

VII. Summary of Argument...11

VIII. Argument.12

A . Issue Number One - Under Texas Family Code Section 154.302, does a trial court abuse its discretion by ordering a parent to provide indefinite support for an adult child when the record contains insufficient evidence to support a finding of disability and substantial care?.12 1 . Standard of Review...12

2. The evidence presented at trial was insufficient for the court to exercise its discretion.14

B . Issue Number Two - Under Texas Family Code Section 154.306, does a trial court abuse its discretion by imposing a child support obligation past a child s 18tk birthday when the court failed to make findings ,

regarding the statutorily mandated factors?.17

IX. Prayer..20

X . Verification.22

XI. Certificate of Service.. 23

XII. Certificate of Compliance.23

- 3 - XIII. Appendix INDEX OF AUTHORITIES

Cases Page

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985)..12

Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex.App.-Dallas 2011, no pet.).13

In re A.M. W, 313 S.W.3d 887, 890 (Tex.App.-Dallas 2010, no pet.).12

Mclntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003).14

Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).13

Quick v. Plastic Solutions of Tex., Inc., 270 S.W.3d 173, 181 (Tex.App.-El Paso 2008, no pet.).13

Stucki v. Stucki, 222 S.W.3d 116, 199 (Tex. App.-Tyler 2006, no. pet).12

Watson v. Watson, 286 S.W.3d 519, 522 (Tex.App.-Fort Worth 2009, no pet.).12, 13

Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990).12

Wolkv. Wolk, No. 03-06-00595-CV (Tex.App.-Austin 2007, no pet.) (memo op.; 9-12-07)........18, 19

-5- Statutes Page

Tex. Fam. Code Ann. § 154.302.!.14,17

Tex. Fam. Code Ann. § 154.306..17,18,19,20

Tex. R. Evid. 601..15

Secondary Sources

The American Heritage College Dictionary (5th ed. 2015).15

-6- Statement of the Case

This appeal arises from a suit for indefinite support of an adult child filed by

Appellee Karen Smith (hereinafter referred to as "Appellee"). C.R. 5-6. In

response to the petition, Appellant Mark Thompson, Sr. (hereinafter referred to as ,

" Appellant"), filed a Motion to Transfer Venue Respondent's Plea in Abatement, ,

Plea to the Jurisdiction and Original Answer. and Motion to Dismiss for Lack of ,

Jurisdiction. C.R. 7-11,38-41.

After hearing oral arguments the trial court denied the transfer request and ,

held that jurisdiction did exist to conduct a hearing on whether or not the court has

jurisdiction over the issues of the child's alleged disability and right to support.

CR . . 52. Appellant sought mandamus relief from this Court and the Supreme

Court of Texas, but was denied the requested relief. C.R. 65-192, 194-205 220. ,

The parties proceeded to trial before the court Appellee's petition in August

2014, and the trial court ruled in favor of Appellee and ordered Appellant to pay " " support for the adult child (hereinafter JLT . . . ) indefinitely. C.R. 234-241.

Appellant requested and was denied a new trial (C.R. 254-261 268-269), and ,

timely filed notice of this appeal on January 7, 2015. C.R. at 296-297.

7 - - Issues Presented

1 . Under Texas Family Code Section 154.302 does a trial court abuse its ,

discretion by ordering a parent to provide indefinite support for an adult child when the record contains insufficient evidence to support a finding of disability and substantial care? 2 . Under Texas Family Code Section 154.306 does a trial court abuse its ,

discretion by imposing a child support obligation past a child's 18th birthday when the court failed to make findings regarding the statutorily mandated factors?

- 8 - Statement of Facts

This appeal stems from an order requiring Appellant to provide indefinite

support for an adult child. C.R. 234-241 296. ,

On January 18, 2013, Appellee filed a Petition for Support ofDisabled Child

seeking support of the parties' adult child J.L.T. , C.R. 5-6. In her petition,

Appellee alleged that J.L.T. "requires substantial care and personal supervision

because of a mental disability and is not capable of self-support . " C.R. 5-6. In an

amended petition filed in May 2014 Appellee further alleged that J.L.T.'s mental ,

disability "exists now and the cause of the disability was known to exist on or ,

before [J.L.T's] eighteenth birthday." C.R. 207-208. Trial was before the court in

August 2014. C.R. 234.

At trial, the court heard evidence from a custodian of records for J.L.T's

high school, Appellee J.L.T., Appellee's sister, J.L.T.'s older brother, and ,

Appellant. Through this testimony and the documents admitted into evidence the ,

following facts about J.L.T.'s mental state and capabilities were established -

. JL . . T is capable of communicating with others (2 R.R. 20:21-21:8 66:15- ,

78:24);

. JLT . . . is competent to testify as a witness and be placed under oath (2 R.R.

66:11-17);

. JLT . . . can dress herself without assistance (2 R.R. 68:2-6) but benefits from ,

9 - - being reminded to engage in good personal hygiene (2 R.R. 22:20-23:9);

. JLT . . . has poor eyesight and hearing (2 R.R. 21:15-18), walks on her toes (2

RR . . 21:12-13), has balance issues (2 R.R. 21:14) and is clumsy (2 R.R. ,

93:16-20), but needs no special equipment to help her (2 R.R. 45:6-16 3 ,

RR . . 22:12-15);

. JLT . . . is under the care of a psychiatrist for reasons unrelated to her alleged

disability (2 R.R. 26:3-7, 59:2-8);

. JLT . . . has had mishaps in the past when she is upset (2 R.R. 22:14-16 25:8- ,

15, 83:6-17, 93:4-8; 94:9-18) but she is taking mediation that helps to ,

control these emotional outburst episodes (2 R.R. 69:3-10);

. JLT . . . lives with Appellee and has never been given the opportunity to live

on her own (2 R.R. 21:20-24, 57:4-5);

. JLT . . . has a high school diploma (2 R.R. 20:5-7, 3 R.R. 11:17-20) and made ' ' almost all A s and B s throughout her high school career (4 R.R. 34-37);

. JLT . . . is eligible to vote (2 R.R. 49:12-13); and

. JLT . . . is of sufficient intelligence and mental capability to understand and

sign a Power of Attorney (2 R.R. 55:18-56:1).

Evidence was also presented at trial regarding general living expenses of

J L T. . . (2 R.R. 28:8-19, 50:7-51:17, 56:7-57:3, 4 R.R. 43), medical bills incurred in

the past on her behalf (2 R.R. 29:7-9, 4 R.R. 43), and Appellant's income (2 R.R.

10- - 28:12, 28:20-25, 3 R.R. 29:16-25, 39:15-18). The only evidence offered to the

lower court, though, regarding the financial resources available to Appellee for ' support of J.L.T. was a ballpark figure for her husband s monthly net income. (2

RR . . 46:16-23).

At the conclusion of the evidence and argument, the lower court took the

case under advisement (3 R.R. 53:2-3) and eventually ruled in favor of Appellee by

imposing an indefinite child support obligation on Appellant for support of J.L.T.

C R 233-241. . .

On January 7, 2015, Appellant timely filed notice of this appeal. C.R. 296-

297.

Summary of the Argument

The trial court abused its discretion by imposing an indefinite child support

obligation on Appellant when there was insufficient evidence to show that J.L.T.

currently suffers from a disability that causes her to require substantial care.

Without such evidence, the court did not have the ability to exercise its discretion

in imposing a support obligation relating to the adult child and to do so was

manifestly unjust and wrong.

The trial court abused its discretion by imposing an indefinite child support

obligation on Appellant when the court did not have enough evidence before it to

consider the required factors under Texas Family Code Section 154.306. Appellee

- 11 - failed to meet her burden regarding at least one of the four factors that the court

must give special consideration to when determining the amount of support to be

paid for an adult child. Accordingly, imposing and setting a child support

obligation in this case was an abuse of discretion.

Argument

A . Issue Number One.

Under Texas Family Code Section 154.302, does a trial court abuse its discretion by ordering a parent to provide indefinite support for an adult child when the record contains insufficient evidence to support a finding of disability and substantial care? 1 . Standard of Review

A court,s order regarding child support may be overturned on appeal if the

complaining party can show a clear abuse of discretion. Worford v. Stamper 801 ,

SW . . 2d 108, 109 (Tex. 1990); see also In re A.M.W., 313 S.W.3d 887 890 ,

(Tex.App.-Dallas 2010, no pet.). A trial court abuses its discretion when its

decision is arbitrary, unreasonable, and without reference to any guiding rules or

principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242

(Tex. 1985).

In family law cases, legal and factual insufficiency are factors in

determining whether there was an abuse of discretion by the trial court as opposed

to independent grounds of error. Watson v. Watson, 286 S.W.3d 519, 522

(Tex.App.-Fort Worth 2009, no pet.); Stucki v. Stucki, 222 S.W.3d 116, 199 (Tex.

- 12- App.-Tyler 2006, no. pet). When a sufficiency of evidence inquiry overlaps with

the abuse of discretion standard, a two-pronged analysis is employed. Watson 286

SW . . 3d at 522-23. First, the reviewing court must determine if the trial court had

sufficient evidence upon which to exercise discretion. Id. If sufficient evidence

exists, the appellate court must then decide if the trial court correctly applied its

discretion. Watson 286 S.W.3d at 522-23. In other words, this court must

conclude that the ruling was a reasonable decision. Id

Additionally, in an appeal from a bench trial, the trial court,s findings of fact

have the same weight as a jury verdict. Fulgham v. Fischer, 349 S.W.3d 153, 157

(Tex.App.-Dallas 2011, no pet.). Findings may be overturned only if they are so

against the great weight and preponderance of the evidence as to be clearly wrong

and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When the appellate , record contains a reporter s record, findings of fact are not conclusive and are

binding only if supported by the evidence. Fulgham, 349 S.W.3d at 157.

A trial court,s conclusions of law are reviewed de novo. Quick v. Plastic

Solutions of Tex., Inc., 270 S.W.3d 173, 181 (Tex.App.-El Paso 2008, no pet.).

Erroneous conclusions of law are not binding on the appellate court, but if the

controlling findings of fact will support a correct legal theory, are supported by the

evidence, and are sufficient to support the judgment, then the adoption of

erroneous legal conclusions will not mandate reversal. Id.

- 13- As applied to the case at hand, the evidence offered at trial was insufficient

to prove that J.L.T. suffered from a disability that required substantial past care and

thus the court abused its discretion in imposing a child support obligation on

Appellant.

2. The evidence presented at trial was insufficient for the court to exercise its discretion.

Texas Family Code Section 154.302 sets forth the required findings a court

must make in order to impose an obligation for indefinite child support on a parent.

Tex. Fam. Code Ann. § 154.302. Specifically a party seeking indefinite child ,

support must show (1) the child requires substantial care and personal supervision ,

(2) the required care and supervision is caused by a present mental or physical

disability of the child, (3) the child will not be capable of self-support in the future ,

and (4) the disability either existed on or prior to the child's 18tf birthday or its

cause was known to exist on or before that date. Id. Failure to provide sufficient

proof of each element prevents a trial court from granting the request for indefinite

support. See Id.

The Texas Family Code does not provide a definition of "disability" or " substantial care" in connection with Section 154.302. Id. Under the rules of

statutory construction, though, a reviewing court is to start with the plain and , common meaning of the statute s words to determine the legislature's

intent. Mclntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). According to The -14- American Heritage College Dictionary the word "substantial" means considerable ,

in amount or extent, and the word "disability" means "a physical or mental " condition that significantly limits a person,s motor sensory, or cognitive abilities. ,

The American Heritage College Dictionary (5th ed. 2015). What's more in ,

the legal context, The American Heritage College Dictionary defines the word " disability" as a "lack of legal capacity to perform some act such as to enter into a ,

contract, because of infancy or lack of soundness of mind." Id.

During the trial of this case, the following uncontroverted information was ' available to the court regarding J.L.T. s current mental and physical state as well as

her need for assistance -

. She is competent to testify as a witness and be placed under oath (2

RR . . 66:11-17), Tex.R.Evid. 601;

. She has a malformed jaw and tongue which cause a speech

impediment (2 R.R. 20:21-21:8), but that impediment does not prohibit her from

communicating with others (2 R.R. 21:3-8, 66:15-78:24);

. She is able to read (2 R R 19:17-18), write (2 R.R. 63:1-2, 74:25- . .

75:10), do basic math (2 R.R. 63:3-4), use a computer (2 R.R. 50:3-4), and use a

cell phone (2 R.R. 76:6-14);

. She is capable of getting dressed without assistance (2 R R 68:2-6); . .

. She has poor eyesight and hearing (2 R R 21:15-18), walks on her . .

-15- toes (2 R.R. 21:12-13), has balance issues (2 R.R. 21:14) and is clumsy (2 R.R. ,

93:16-20), but needs no special equipment to help her (2 R.R. 45:6-16 3 R.R. ,

22:12-15);

. She has a high school diploma (2 R R 20:5-7, 3 R.R. 11:17-20) and . .

' made almost all A s and B '

s throughout her high school career (4 R.R. 34-37);

. She is eligible to vote (2 R R 49:12-13); and . .

. She is of sufficient intelligence and mental capability to understand

and sign a Power of Attorney (2 R.R. 55:18-56:1).

Using the common meanings of the words "disability" and "substantial" as

set forth above, the foregoing evidence overwhelmingly refutes Appellee's claims

that J.L.T. suffers from a disability and needs substantial care. The uncontroverted

facts clearly show that J.L.T. is of sound mind suffers no significant impairment of ,

her motor, sensory or cognitive abilities, and does not need a considerable amount

of care as a result of the impairments from which she does suffer.

Appellee will most likely point this Court to evidence regarding past

incidents and mishaps involving J.L.T. (2 R.R. 22:14-16 25:16-24, 83:6-17, 93:4- ,

8) to support her claim that J.L.T. is presently mentally disabled and needs

substantial care. For the majority of these incidents, though, Appellee failed to

provide any timeframe on when the incidents occurred in the twelve years since

JLT . . . turned 18 (2 R.R. 22:14-16, 83:6-17). Appellee further failed to provide any

-16- evidence that these incidents are expected to reoccur in the future or explain how

these past behaviors are still part of J.L.T.'s mental state now that she is under the

care of a psychiatrist (2 R.R. 25:16-26:11) and taking mediation that helps to

control her emotional outbursts (2 R.R. 69:3-10). Finally Appellee presented ,

evidence that J.L.T. has never lived on her own (2 R.R. 21:22-24) but the Court ,

heard evidence from J.L.T. herself that although she does need to live with other ,

people, this is only to avoid nervous breakdowns (2 R.R. 67:21-68:1).

In sum, the evidence presented at trial was wholly insufficient to support the

trial court,s finding that J.L.T. was presently disabled and consequently requires

substantial care. The evidence clearly showed that J.L.T. does not need substantial

care and is not presently disabled and thus Appellee failed to meet her burden of

proof on two required elements under Texas Family Code Section 154.302.

Accordingly, the lower court abused its discretion when it imposed an indefinite

child support obligation on Appellant.

B . Issue Number Two.

Under Texas Family Code Section 154.306, does a trial court abuse its discretion by imposing a child support obligation past a child's 18tt birthday when the court failed to make findings regarding the statutorily mandated factors?

Under Texas Family Code Section 154.306, the court shall determine and

give special consideration to four factors when determining the support obligation

for a child over eighteen years of age: (1) any existing or future needs of the adult

-17- child directly related to the adult child,s mental and physical disability; (2) whether

the parent pays for or will pay for the care or supervision of the adult child or

provides substantial care and personal supervision of the adult child; (3) the

financial resources available to both parents for the support; and (4) any other

resources or programs available for the support care, and supervision of the adult ,

child. Tex. Fam. Code Ann. § 154.306. When a trial court imposes a support

obligation under Section 154.306 without sufficient evidence on each of these

factors, an abuse of discretion has occurred. See Wolk v. Wolk No. 03-06-00595- ,

CV (Tex.App.-Austin 2007, no pet.) (memo op.; 9-12-07).

In the case of Wolk v. Wolk, the lower court imposed a post-18 child support

obligation on the father of a child suffering from Down's syndrome. Id. The

evidence presented at trial included confirmation of the child's present disability ,

that the mother was the primary caretaker of the child and that she had been taking ,

care of the child for years. Id. There was no evidence presented though, showing ,

the child's current or future medical needs directly related to his disability the ,

substantial care and personal supervision required relating to the child's disability ,

whether the mother pays or will pay for the care and supervision of the child or

will provide substantial care, or financial or other resources or programs available

for the support and care of the child. Id. Based on this lack of evidence the ,

appellate court found that the trial court abused its discretion by imposing a

-18- support obligation when it did not have sufficient information to determine and

give special consideration to the statutorily required factors of Texas Family Code

154.306. Id.

As in Wolk, there was a complete lack of evidence presented at trial

regarding at least one required factor of Section 154.306. No evidence was

presented on what existing or future needs J.L.T. has that are directly related to her

alleged disability and the substantial care and personal supervision required by that

alleged disability. Testimony and exhibits were presented regarding general living

expenses of J.L.T. (2 R.R. 28:8-19, 50:7-51:17, 56:7-57:3, 4 R.R. 43) including

generic information on prior medical bills incurred on behalf of J.L.T. (2 R.R.

29:7-9, 4 R.R. 43), but nothing specific was offered as a need stemming directly

from her alleged disability (2 R.R. 59:2-8, 59:16-24). Accordingly, the court could

not have been able to consider the first required factor.

In addition, there was no evidence presented on whether Appellee pays for

or will pay for the care or supervision of the adult child or provides or will provide

substantial care and personal supervision for J.L.T. Appellee testified that she

lives with J.L.T. (2 R.R. 21:20-21. 57:4-5) and reminds J.L.T. to engage in good

personal hygiene (2 R.R. 22:20-23:9) but failed to offer evidence demonstrating

that she provides or will provide actual substantial care for J.L.T. in the future.

Without this evidence, it was not possible for the lower court to give proper

- 19- consideration to the second statutory factor.

Moreover, the trial court was not presented with evidence regarding the

financial resources available to both parents for support of J.L.T. Evidence was

admitted regarding Appellant's income (2 R.R. 28:12 28:20-25, 3 R.R. 29:16-25, ,

39:15-18); however, Appellee did not disclose all of the financial resources

available to her that would be available to support J.L.T. (2 R.R. 46:16-23 58:12- ,

14, 63:13-64:19, 65:14-66:5). The only evidence she presented to satisfy the third

factor under Section 154.306 was an estimate of her husband's net monthly income

(2 R.R. 46:22-23). As such, the court was not able to give the requisite

consideration to this factor.

In conclusion, it was error for the trial court to impose a support obligation

on Appellant because the court was not presented with evidence sufficient to allow

special consideration of three of the four factors required under Texas Family Code

Section 154.306.

Prayer

Appellant respectfully requests, based on the argument and authorities

contained herein, that the Court reverse the applicable rulings of the 246th Judicial

District Court , Harris County Texas and hold that the trial court abused its

discretion by imposing an indefinite child support obligation on Appellant.

-20- StaeBrNo.24091 Respectfully Submitted, CORDELL & CORDELL, P.C. 1330 Post Oak Boulevard, Suite 1800 Houston, Texas 77056 Tel: (832) 730-2969 Fax: (832) 730-2970

By: /s/NidaC.Wood _

Nida C.Wood State Bar No. 24072034 E-mail: nchaudhriwood@cordelllaw com .

Bryan L. Abercrombie

E-mail: babercrombie@cordelllaw . com

21 - STATE OF TEXAS §

COUNTY OF HARRIS §

Before me, the undersigned authority appeared Nida C. Wood, known to me ,

to be the person whose name is subscribed below who stated, under oath, that she ,

is above the age of twenty-one years he is the attorney for Appellant, Mark ,

Thompson, Sr., in her capacity as such has personally reviewed all exhibits ,

contained in the appendix to this Appellant,s Brief he has personal knowledge that ,

all such exhibits are true, correct and complete as contained in the files of Harris

County District Clerk or LexisNexis, as applicable except as redacted in ,

compliance with the applicable Texas Rules of Appellate Procedure.

Nida C. Wood

SWORN TO AND SUBSCRIBED day of

-22- Certificate of Service

I certify that a true copy of the foregoing with attached appendix was served

in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on each , party or that party s lead counsel via e-service on April 8, 2015:

Counsel for Appellee: Mr. G. Troy Pickett 2222 Bissonnet Street, Suite 203 Houston, Texas 77005

/s/Nida C.Wood Nida C. Wood Bryan L. Abercrombie Attorneys for Appellant

Certificate of Compliance

Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document contains

2, 748 words and is thus within the limits imposed by Tex. R. App. P. 9.4(i)(2)(B).

/s/Nida C.Wood Nida C. Wood Bryan L. Abercrombie Attorneys for Appellant

- 23 - APPENDICES: The following documents are attached to this brief and incorporated in it for all purposes.

Appendix A: Attached to this brief are the following documents: 1 _ A certified copy of the Order For Support ofAdultDisabled Child. 2 . A certified copy of the Finding ofFact and Conclusions ofLaw. 3 . TEX. FAM. CODE ANN. §154.302 (West 2014). 4 . TEX. FAM. CODE ANN. §154.306 (West 2014). 5 . TEX. RULES OF EVIDENCE Rule 601. APPENDIX A-1

In re: Mark Thompson, Sr.-Appellant APPENDIX

A-2 . A certified copy of the Order For Support ofAdult Disabled Child.

A-3 . A certified copy of the Finding ofFact and Conclusions of Law.

A-4 . TEX.FAM. CODE ANN. §154.302 (West 2014).

A-5 . TEX. FAM. CODE ANN. §154.306 (West 2014).

A-6 . TEX. RULES OF EVIDENCE Rule 601.

A-1 APPENDIX A-2

In re: Mark Thompson, Sr.-Appellant ~

file n Chris De;ii .} 1 . Districi C:i " >

NO. 2013-03434 SEP 0 5 20W tP lima-_Srt&Cgu IN THE INTEREST OFt IN THE FAMILfeDISTMCTCO. f; S HARRIS COUNTY, TEXAS 1- ADULT CHILD. 246™ JUDICIAL DISTRICT

ORDER FOE SUPPORT OF ADULT DISABLED CHILD

On August 13 and 14,2014, the Court heard the Petition for Support of Adult Disabled

Child filed by KAREN SMITH, Petitioner.

Appearances

Petitioner, KAREN SMITH, appeared in person and through attorney of record, Sally A

Jones, and announced ready for trial.

Respondent, MARK THOMPSON, SR., appeared in person and through attorneys of

record, Nida Chaudhri Wood and Biyan Abercrombie, and announced ready for trial.

Jurisdiction

The Court, after examining the pleadings and hearing the evidence and argument of

counsel, finds that it has jurisdiction of this case and of all the parties and that no other court has

continuing, exclusive jurisdiction, A jury was waived, and all questions of fact and of law were

submitted to the Court. All persons entitled to citation were properly cited.

Record

A record of testimony was duly reported by Jenine Redden on August 13,2014 and by

Alexandra McMillen on August 14,2014.

Filings [d f self-support.'

<£> RECORDER'S MEMORANDUM This ,nstrumerit is of poor quality trie time of imaging 234 The Court further finds that the child the subject of this suit is over the age of eighteen

years, and the disability exists now and existed on or before the eighteenth birthday of the child.

Support Order

IT IS ORDERED that MARK THOMPSON, SR. is obligated to pay and shall pay to

KAREN SMITH child support of THREE HUNDRED AND NO/lOO ($300.00) DOLLARS per

month, with the first payment being due and payable on September 1,2014 and a like payment

being due and payable on the 1®* day of each month thereafter until the first month following the

date of the earliest occurrence of one of the events specified below:

the child dies; or

2 . further order modifying this child support. ( /h / IT IS ORDERED that all payments snail be made through the state disbursement unit at

Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791,

and thereafter promptly remitted to KAREN SMITH for the support of the child.

Withholding From Earnings

IT IS ORDERED that any employer of MARK THOMPSON, SR. shall be ordered to

withhold from earnings for child support from the disposable earnings of MARK THOMPSON,

SR. for the support of .

IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of

MARK THOMPSON, SR. by the employer and paid in accordance with the order to that

employer shall constitute a credit against the child support obligation. Payment of the full

amount of child support ordered paid by this decree through the means of withholding r f om

earnings shall discharge the child support obligation. If the amount withheld from earnings and

credited against the child support obligation is less than 100 percent of the amount ordered to be

235 paid by this decree, the balance due remains an obligation of MARK THOMPSON, SR., and it is

hereby ORDERED that MARK THOMPSON, SR. pay the balance due directly to the state

disbursement unit as specified below,

On this date the Court signed an Income Withholding for Support.

IT IS ORDERED that all payments shall be made through the state disbursement unit at

Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791,

and thereat f er promptly remitted to KAREN SMITH for the support of the child.

IT IS FURTHER ORDERED that MARK THOMPSON, SR. shall notiy f this Court and

KAREN SMITH by U.S. certified mail, return receipt requested, of any change of address and

of any termination of employment. This notice shall be given no later than seven days at f er the change of address or the termination of employment. This notice or a subsequent notice shall

also provide the current address of MARK THOMPSON, SR. and the name and address of his

current employer, whenever that information becomes available

IT IS ORDERED that, oni the request of a prosecuting attorney, the title 1V-D agency, the

friend of the Court, a domestic relations ofi f ce, KAREN SMITH, MARK THOMPSON, SR., or

an attorney representing KAREN SMITH or MARK THOMPSON, SR., the clerk of this Court

shall cause a certified copy of the Income Withholding for Support to be delivered to any

employer.

Additional ChMSuppmi

As additional child support, IT IS ORDERED that KAREN SMITH is awarded all Social

Security Disability Insurance payments which are payable to through

the earnings record of MARK THOMPSON, SR., as his adult child who became disabled before

oillÿpars, lis pwded andasisavailabie underHederallaw. #"

236 IT IS ORDERED that MARK THOMPSON, SR. shall assist and accompany KAREN

THOMPSON, as an adult disabled child claiming through MARK THOMPSON SR.,s Social

Security earnings record.

IT IS ORDERED that the application shall be completed to take effect on September 1,

2015, the date of MARK THOMPSON SR.'s full eligibility for Social Security benefits.

that all jjEÿme ntsmadebyihe benefit of f PSON shaH-btfdirected t

Possession or Access

The Court finds that the following provisions for possession of or access to JENNIFER

THOMPSON are m the best interest of the child:

In the absence of other mutual agreement of the parties, MARK THOMPSON., SR. shall

have the right of possession of or access to on Sunday of each week, ÿ" beginning at 1:00 p.m. and ending at 3:00 p.m. P* ÿ (*rV' P ÿ6 "

tlrx. S-4 Vt*<4-A/v

section 105.006(a) of the Texas Family Code

is as follows:

Name: KAREN SMITH

Social Security number: XXX-XX-X430

Driver's license number and issuing state: XXXXX407 Tessas

finrrent residence address: 709 CR401 Dayton, Texas 77535

709 CR 401 Dayton, Texas 77535

-4-

237 Home telephone number: (281) 576-5930

Name of employer: Not employed

Address of employment: Not applicable

Work telephone number: Not applicable

Name: MARK THOMPSON, SR.

Social Security number*? XXX-XX-X526

Driver,s license number and issuing state: XXXXX248

Current residence address: 1800 James Bowie Dr. #85 Baytown, Texas 77520

1800 James Bowie Dr. #85 Baytown, Texas 77520

Home telephone number: (716) 536-2116

Name of employer: Compass Engineering Corporation

Address of employment: 1061 Planters Lane Greensboro, Georgia 30642-4898

Work telephone number: (8001431-3429

Mam®

Social Secuity mmte XXX-XX-X

Identification number and issuing state: XXXXX

Notices

EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY CHANGE IN THE PARTY,S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE NUMBER, THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY ON OR BEFORE THE 60TH DAY

238 >v

BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE.

THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.

FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER PARTY, THE COURT, AND THE STATB CASE REGISTRY WITH THE CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR 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.

Notice shall be given to the other party by delivering a copy of the notice to the party by registered or certified mail, return receipt requested. Notice shall be given to the Court by delivering a copy of the notice either in person to the clerk of this Court or by registered or certified mail addressed to the clerk at P. O. Box 4651, Houston, Texas 77210. Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registry, Contract Services Division, MC046S, P.O. Box 12017, Austin, Texas 78711-2017.

Notice to any peace officer of the state of Texas: You may use REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED IN THIS ORDER, A PEACE OFFICER WHO RELIES ON TOE TERMS OF A COURT ORDER AND THE OFFICER,S AGENCY ARE ENTITLED TO TOE APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF THE OFFICER,S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000.

Warnings

WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SDC MONTHS, A FINE OF UP TO $500 FOR

- 6 -

239 EACH VIOLATIONs AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.

Failure of a party to make a child support payment to the place and in THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT. -

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION 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.

Costs

IT IS ORDERED that costs of court are to be borne by the party who incurred them.

ReliefNot Granted

IT IS ORDERED that all relief requested in this case and not expressly granted is denied.

Date of Order

This order judicially PRONOUNCED AND RENDERED in court at Houston, Harris

County, Texas, on August 22,2014 and further noted on the court,s docket sheet on the same

date, but signed on

JUDGE PRESIDING

240 APPROVED AS TO FORM ONLY:

ELLIOTT, HEINLEIN & JONES, P.G.

Sally A J Jones State/mr No. 10954700 P O/Box 1440 .

Crosby, Texas 77532 (281)328-6583 FAX (281) 462-0733 siones@ehjlawpc.com Attorneys for Petitioner

CORDELL & CORDELL, P.C.

ftirtoacMcrt Nida Chaudhri Wood State Bar No. 24072034 1330 Post Oak Blvd., Suite 1800 Houston, Texas 77056 (832)730-2965 FAX (832) 730-2966 nchaudhrlwood@cordel1kw.com Attorneys for Respondent

A/t»f Bryan Abercrombie ÿ t */ State Bar No. 24029411

In re: Mark Thompson, Sr.-Appellant 246thDistrc Court FILED j) Jj ,

dhris Daniel V / District Cleric I I NOV 1 8 20W Time:. Harris Taxes

Jim York ®y- Dopufv Judge, Civil ÿ y1L Courts COURTS Blog ULDiB . BOARD CERTIFIED (713) 274-4500 J R01"'ÿ'1 ®T" Floor FAMILY LAW AND CIVIL TRIAL LAW Houston, Texas 77002 TEXAS BOARD OF LEGAL SPECIALIZATION aa, "2-o//-

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r?» /T/6- Z. W - ÿ APPENDIX A-4

In re: Mark Thompson, Sr.-Appellant Tex. Fam. Code 8 154.302

This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > TEXAS FAMILY CODE > TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP > SUBTITLE B SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP . > CHAPTER 154. CHILD SUPPORT > SUBCHAPTER F. SUPPORT FOR A MINOR OR ADULT DISABLED CHILD

§ 154.302. Court-Ordered Support for Disabled Child (a) The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that: (1) the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support; and (2) the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child. (b) A court that orders support under this section shall designate a parent of the child or another person having physical custody or guardianship of the child under a court order to receive the support for the child. The court may designate a child who is 18 years of age or older to receive the support directly.

History

Enacted by Acts 1995, 74th Lec„ ch. 20 (H.B, 655). § 1, effective April 20 1995; am. Acts 1997, 75th Leu., ch. 1173 ,

(S.B. 497). § 1, effective September 1, 1997.

Annotations

Case Notes

Civil Procedure: Judgments: General Overview Civil Procedure: Appeals: Standards of Review: Substantial Evidence: Sufficiency of Evidence Evidence: Procedural Considerations: Weight & Sufficiency Family Law: Child Support: Jurisdiction: Continuing Jurisdiction Family Law: Child Support: Obligations: General Overview Family Law: Child Support: Obligations: Types: Dependent Adult Support Governments: Legislation: Interpretation

LexisNexis (R) Notes

Civil Procedure: Judgments: General Overview 1 Although the child did not need constant supervision, the testimony at the hearing was sufficient to support a finding .

that he required substantial care and frequent personal supervision; thus, because the evidence supported the omitted element that the child required substantial personal supervision, the appellate court could supply that element under Tex. R Civ. P. 299: therefore, the trial court's findings are sufficient to support an order of child support beyond the child's .

eighteenth birthday, Tex. Fam. Code Am. $ 154.302(a)(1). In re W.M.R., 2012 Tex, App. LEXIS 9097 (Tex. App. Fort Worth Nov. I 2012).

Civil Procedure: Appeals: Standards of Review: Substantial Evidence: Sufficiency of Evidence 2 Evidence was legally and factually sufficient to support trial court>s finding that a child with muscular dystrophy would .

be incapable of self-support after age 18 and thus judgment directing father to pay monthly support beyond eighteenth

NIDACHAUDHRI APPENDIX A-5

In re: Mark Thompson, Sr.-Appellant Tex. Fam. Code $ 154.306 This document is current through the 2013 3rd Called Session

Texas Statutes and Codes > TEXAS FAMILY CODE > TITLE 5. THE PARENT-CHILD RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP > SUBTITLE B SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP . > CHAPTER 154. CHILD SUPPORT > SUBCHAPTER F SUPPORT FOR A MINOR OR ADULT DISABLED CHILD

§ 154.306. Amount of Support After Age 18 In determining the amount of support to be paid after a child's 18th birthday, the specific terms and conditions of that support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and give special consideration to:

(1) any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability; (2) whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;

(3) the financial resources available to both parents for the support, care, and supervision of the adult child; and (4) any other financial resources or other resources or programs available for the support, care, and supervision of the adult child.

Enacted by Acts 1995. 74th Lee., ch. 20 (H.B. 655). § 1, effective April 20, 1995.

Family Law: Child Support: Obligations: General Overview Family Law: Child Support: Obligations: Types: General Overview Family Law: Child Support: Obligations: Types: Dependent Adult Support

Family Law: Child Support: Obligations: General Overview 1 A trial court is not required to take into consideration a party>s debts to determine his net resources, nor does it provide .

that the court consider net resources of the parties when setting support for an adult disabled child. In re Marriage of Harbrecht. 1998 Tex. Anp. LEXIS 1297 (Tex. Am. Amarillo Feb. 27 1998).

Family Law: Child Support: Obligations: Types: General Overview 2 Finding against the father was proper because his argument that the trial court abused its discretion by ordering him to ,

'

pay excessive child support was without merit. In part, the court heard testimony from the mother concerning the child s future needs and documentary evidence was also presented and considered. In re W.M.R., 2012 Tex. Apv. LEXIS 9097 (Tex. App. Fort Worth Nov. I 2012).

Family Law: Child Support: Obligations: 'types: Dependent Adult Support 3. Finding against the father was proper because his argument that the trial court abused its discretion by ordering him to '

pay excessive child support was without merit. In part, the court heard testimony from the mother concerning the child s

NIDACHAUDHRI APPENDIX A-6

In re: Mark Thompson, Sr.-Appellant Tex. Evid. R. 601

This document is current through February 4, 2015

Texas Court Rules > STATE RULES > TEXAS RULES OF EVIDENCE > ARTICLE VI. WITNESSES

Rule 601 Competency and Incompetency of Witnesses (a) General Rule. -Every person is competent to be a witness except as otherwise provided in these rules. The following witnesses shall be incompetent to testify in any proceeding subject to these rules: (1) Insane Persons. -Insane persons who, in the opinion of the court, are in an insane condition of mind at the time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the events happened of which they are called to testify. (2) Children. -Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated. (b) "Dead Man,s Rule" in Civil Actions. -In civil actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions "

of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.

Notes

PUBLICATION REFERENCES. -See Texas Civil Trial Guide, Unit 22, Rules Affecting Admissibility ; Texas Litigation Guide, Ch. 114, Motions in Limine.

Civil Procedure: Summary Judgment: Supporting Materials: General Overview Civil Procedure: Summary Judgment: Supporting Materials: Affidavits Civil Procedure: Appeals: Reviewability: Preservation for Review Constitutional Law: Bill of Rights: Fundamental Rights: Criminal Process: Right to Confrontation Contracts Law: Contract Interpretation: Parol Evidence: General Overview Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Sexual Assault: General Overview Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Sexual Assault: Abuse of Children: General Overview Criminal Law & Procedure: Counsel: Right to Counsel: Critical Stage Criminal Law & Procedure: Trials: Examination of Witnesses: Child Witnesses Criminal Law & Procedure: Witnesses: General Overview Criminal Law & Procedure: Witnesses: Credibility Criminal Law & Procedure: Witnesses: Presentation

NIDACHAUDHRI