ACCEPTED 01-14-00082-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 1/7/2015 6:01:53 PM CHRISTOPHER PRINE CLERK
No. 01-14-00082-CV
FILED IN IN THE 1st COURT OF APPEALS HOUSTON, TEXAS 1/7/2015 6:01:53 PM FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk
AT HOUSTON, TEXAS
MARY LYNN KANTARA GERKE
Appellant,
V.
JAMIL “JAMES” KANTARA
Appellee.
Appealed from the 311TH District Court of
Harris County, Texas
JAMIL “JAMES” KANTARA’S REPLY BRIEF ________________________________________________________________________
Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Tel: (281) 486-5066 Fax: (281) 486-2041 court_documents@schmitzlaw.com Attorney for Jamil “James” Kantara
Appellee waives oral argument
Page 1 TABLE OF CONTENTS
IDENTITY OF PARTIES & COUNSEL 4
STATEMENT OF ORAL ARGUMENT 7
REFERENCE GUIDE 8
INDEX OF AUTHORITIES 13
ISSUES PRESENTED 15
STATEMENT OF FACTS 17
SUMMARY OF ARGUMENT 22
ARGUMENT 25
Reply to Issue 1 25
Reply to Issue 2 26
Reply to Issue 3 30
Reply to Issue 4 33
Reply to Issue 5 36
Reply to Issue 6 40
Page 2 PRAYER 44
CERTIFICATE OF COMPLIANCE 45
CERTIFICATE OF SERVICE 46
Page 3 IDENTITIES OF THE PARTIES & COUNSEL
Mary Lynn Kantara Gerke Appellant
707 Almond Pointe League City, Texas 77573 Cell: (281) 332-8858 Fax: (281) 290-0004 marykantara@gmail.com
Ashley Tomlinson Counsel for Appellant
1800 Saint James Place, Suite 620 Houston, TX 77056 Office: (713) 600-1717 Fax: (713) 600-1718 atomlinson@dalefamilylaw.com
Jamil “James” Kantara Appellee
1227 Birch Court Friendswood, Texas 77546
Page 4 Wilfried P. Schmitz Counsel for Appellee
17040 El Camino Real, Suite 400 Houston, Texas 77058 Office: (281) 486-5066 Fax: (281) 486-2041 wilfried@schmitzlaw.com
Douglas York Amicus Attorney
3355 W. Alabama, Suite 100 Houston, Texas 77098 Office: (713) 479-5555 Fax: (713) 586-5585 york@douglasyork.com
Honorable Robert Newey Associate Judge who presided over trial
Page 5 Honorable Denise Pratt Former Presiding Judge Of the 311th District Court
Honorable Alicia K. Franklin Presiding Judge of the 311th District Court
Page 6 Waiver of Oral Argument
Appellee waives any request for oral arguments.
Page 7 Reference Citation Guide
The Parties
Appellant, Mary Lynn Kantara Gerke “Mary”
Petitioner in trial
Appellee, Jamil “James” Kantara “James”
Respondent and Counter-petitioner in trial
The Record on Appeal
Appellee is unable to correlate the clerk’s record, supplemental clerk’s record, and
the reporter’s record cited in Appellant’s brief with the complete transcript filed by
the District Clerk with this Court of Appeals. Appellee’s brief will refer to the
record on appeal using the same designation as used by the Clerk and the Court
Reporter as follows:
Page 8 Clerk’s record “CR __” (page number)
(filed February 26, 2014)
Supplemental Clerk’s Record “CRS1 __” (page number)
(filed October 1, 2014)
Supplemental Clerk’s Record “CRS2 __” (page number)
(filed November 7, 2014)
Supplemental Clerk’s Record “CRS3 __” (page number)
(filed November 17, 2014)
Supplemental Clerk’s Record “CRS4 __ “ (page number)
(filed November 24, 2014)
Page 9 Reporter’s Record Vol 1 “RR1 __” (vol: page number)
(filed February 24, 2014)
Reporter’s Record Vol 2 “RR2 __” (vol: page number)
Reporter’s Record Vol 3 “RR3 __” (vol: page number)
Reporter’s Record Vol 4 “RR4 __” (vol: page number)
Reporter’s Record Vol 5 “RR5 __” (vol: page number)
Page 10 Reporter’s Record Vol 6 “RR6 __” (vol: page number)
Reporter’s Record Vol 7 “RR7 __” (vol: page number)
Reporter’s Record Vol 8 “RR8 __” (vol: page number)
Reporter’s Record Vol 9 “RR9 __” (vol: page number)
Reporter’s Record Vol 10 “RR10 __” (vol: page number)
Page 11 Reporter’s Record Vol 11 “RR11 __” (vol: page number)
Reporter’s Record Vol 12 “RR12 __” (vol: page number)
Reporter’s Record Vol 13 “RR13 __” (vol: page number)
Reporter’s Record Vol 0 “RR0 __” (vol: page number)
(filed October 30, 2014)
Page 12 INDEX OF AUTHORITIES
Cases
Bailey v. Rodriguez, 351 S.W.3d 424 (Tex. App. El Paso 2011)…………p. 41
Bruni v. Bruni, 924 S.W.2d 366 (Tex. 1996)……………………………..p. 40
Davis v. Huey, 571 S.W.2d 859 (Tex. 1978)……………………………..p. 41
Farish v. Farish, 921 S.W.2d 538 (Tex.App.— Beaumont 1996, no writ)…………………………………………………p. 40
Flowers v. Flowers, 407 S.W.3d 452 (Tex. App. Houston [14th Dist.] 2013)……………………………………………………p. 28, 29, 32
Greene v. Young, 174 S.W.3d 291 (Tex. App. Houston [1st Dist.] 2005)…………………………………………………………………….p. 32
Holley v. Holley, 864 S.W.2d 703 (Tex. App. Houston [1st Dist.] 1993, writ denied)……………………………………………………….p. 41
In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)………………………...p. 26
In the Interest of Pecht, 874 S.W.2d 797 (Tex. App.—Texarkana 1994, no writ)……………………………………………………………p. 40
Mattox v. Jackson, 336 S.W.3d 759 (Tex. App. Houston 1st Dist. 2011)……………………………………………………………………..p. 41
Page 13 Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314 (Tex 2012)……………………………………………...p. 26
Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)……………………p. 26
Sterling v. Alexander, 99 S.W.3d 793 (Tex. App. Houston [14th Dist.] 2003. pet. denied)…………………………………………....p. 39
Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005)……………. ..p. 35, 37
Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013)………………………..p. 39
Wolters v. White, 659 S.W.2d 885 (Tex.App.—San Antonio 1983, writ dism’d)………………………………………………………p. 40
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)……………………. .p. 41
Statutes
TFC § 106.002………………………. ……………..p. 16, 24, 37 40, 42, 43
TFC § 156.005………………………. …p. 15, 16, 23, 24, 36, 39, 40, 42, 43
TFC § 153.132…………………………………………………………...p. 25
Rules
TEX. R. App. P. 38.1(h)…………….......................................................p. 39
TEX R. App 33.1………………………………………………………..p. 26
Page 14 ISSUES PRESENTED
Reply to Issue No. 1: Appellee admits the modification of the parental
rights was not plead, but Mary failed to preserve the error for appeal.
Reply to Issue No. 2: The trial court did not modify the existing 2010 orders
regarding James’ exclusive right to make medical, education, and welfare
decisions on behalf of the children, but only stated which method should be used.
Reply to Issue No. 3: The trial court did not modify the existing orders with
regard to the beginning and ending times of Mary’s possession of the children.
Even if the trial court finds the adjustment of the beginning and ending time of
Mary’s possession of the children was a modification, the beginning and ending
time of Mary’s possession of the children was tried by consent. In addition,
termination of Mary’s mid-week possession was tried by consent.
Reply to Issue No. 4: The issues regarding passports and travel restrictions
were both pled and tried.
Reply to Issue No. 5: There is ample evidence in the record to support the
Court’s finding, Mary frivolously filed her suit for modification, the suit was
designed to harass James, and award of attorney fees under TFC §156.005 is not a
sanction.
Page 15 Reply to Issue No. 6: There is ample evidence for the award of attorney’s
fees under TFC §106.002 and/or §156.005
Page 16 STATEMENT OF FACTS
On May 11, 2011, Appellant, Mary, filed her suit for modification (RR4_
71:16-17) against James seeking to modify a prior modification order dated April
15, 2010 (hereinafter the “2010 Order”) (CRS1_3). Please note, this was just a
year after the previous modification trial.
Trial began in October 2012 and ended in August 2013. On October 28,
2013, the Court entered its order (hereinafter the “2013 Order”) (CR_29). This is
an appeal from the 2013 Order.
Mary, in her Statement of Facts, forgets or downplays the harm she has
caused her children since the 2010 Order.
Evidence was presented when James told Mary about the children’s medical
appointments, Mary referred to James as Mr. Munchhausen (RR7_22:22-25).
James testified Mary was an impediment to obtaining medical providers for the
children (RR8_75:24-76:6). Numerous complaints were filed against the
children’s medical providers (RR7_83:5-84:4).
Dr. Linda Ewing-Cobb with the UT Medical Group made an assessment on
Jonathan, the youngest child, during the 2010 trial (RR4_46:10-11). Mary
Page 17 admits she filed a complaint against Dr. Ewing-Cobbs (RR4_61:18-62:6)
(RR5_21:10-22:4).
Dr. Monmouth’s office told James Mary filed a complaint against Dr.
Monmouth (RR3_54:22-55:6). Mary denies she filed the complaint, but she
suspects the complaint was filed by her boyfriend, Dr. Gerber (RR7_29:23-
30:12).
Many of the children’s medical providers refused to provide treatment for
the children after receiving complaints or strongly worded letters from Mary.
Dr. Ewing-Cobb refused to treat one of the children after Mary filed a
complaint against her (RR4_45:21-46:18).
Dr. Kennedy would not see or treat the children after receiving strong
language emails from Mary (RR3_84:23-85:20).
Dr. Hope Moser refused to provide any more assistance to James’ children
because she felt she was being harassed and abused and her professional and
personal capacity was being attacked (RR8_5:20-8:11).
Dr. Kit Harrison wasn’t going near James’ children and evaluate them unless
James sought specific court protection for Dr. Harrison (RR6_63:1-6).
James was unable to take the children to counselors or psychologists without
Mary bombarding the counselor or psychologist with derogatory comments
about James (RR4_46:18-47:2). Page 18 Jonathan Kantara was not receiving counseling because of Mary’s
interference (RR4_45:19-47:20).
The acrimony between Mary and James was so horrific it was affecting the
pediatrician’s ability to provide healthcare for the children (RR6_29:21-
30:22).
Mary has been an impediment to the children’s education.
Mary complained about and had the elementary school diagnostician
removed from the children’s care (RR3_93:21-94:14).
Mary tried to make changes to the children’s school schedules even though
James had the exclusive rights to educational decisions (RR3_19:13-21:6).
Mary interfered with James’ exclusive educational rights by telling school
officials they are required to confer with Mary before making decisions
regarding the children (RR3_34:3-11).
Mary threatened James to go to court if James changed the school the
children attended (RR3_36:14-37:12).
Mary’s harassment of James.
Mary told the children’s school James was not feeding the children
(RR7_11:12-12:16).
Page 19 Mary called the police and told them James had weapons in the house
(RR6_80:13-22) because she felt he may have weapons in the house
(RR6_81:7-21).
Mary told the child’s physician the child was not being fed (RR6_85:25-
86:2).
Report made to CPS James was abusing the children (RR7_13:13-14:2).
Report made to CPS James was sexually abusing his daughter (RR7_14:18-
25).
Mary reported to CPS James had a history of psychological and physical
violence (RR5_104:1-3).
Mary did not recall reporting to school personnel the children had hygiene
problems, but Mary sent shampoo and other hygiene items to the school
nurse (RR7_15:20-16:24).
Mary refused James permission to obtain the children’s passports claiming
“good cause.” (RR3_66:2-15) When questioned why, Mary responded
because James is of Lebanese descent (RR5_74:11-15).
At the conclusion of the trial, Judge Newey told Mary on the record she had
been an obstructionist almost from the day following the hearing in the previous
Page 20 case in Galveston (RR8_136:19-137:5). The Court reiterated its obstructionist
finding again in its Findings of Fact (CRS3_37—FoF 4).
Mary made it abundantly clear she is going to continue her obstructionist
actions until she gets what she wants (RR8_88:2-14).
Page 21 SUMMARY OF THE ARGUMENT
Appellee admits the modification of the parental rights was not plead, but
Mary failed to preserve the error for appeal – this Court should overrule Mary’s
Issue No. 1.
The trial court did not modify the existing 2010 orders regarding James’
exclusive right to make medical, education, and welfare decisions on behalf of the
children, but only stated which method should be used. Even if the Court finds the
requirement of consultation through “OurFamilyWizard” is a modification to the
2010 Order, the issue was tried by consent. The only thing the parties have been
able to agree on is the communication method used (namely, e-mails, telephonic
and in-person communication) is not working – this Court should overrule Mary’s
Issue No. 2.
The trial court did not modify the existing orders with regard to the
beginning and ending times of Mary’s possession of the children but merely
adjusted the pickup and return times of the children. Even if the Court finds the
adjustment of the beginning and ending times of Mary’s possession of the children
Page 22 is a modification to the 2010 Order, the issue was tried by consent – this Court
should overrule Mary’s Issue No. 3.
The trial court’s removal of Mary’s mid-week possession was tried by
consent. The record is replete with evidence supporting the Court’s decision -- this
Court should overrule Mary’s Issue No. 3.
The issues granting James the right to apply for the children’s passports,
removal of the good cause exception, and requiring Mary to sign passport
applications for the children were pled and tried. The record is replete with
evidence supporting the Court’s decision. The Court’s imposition of a travel
restriction to the Middle East is not error and if it was error, it is invited error – this
Court should overrule Mary’s Issue No. 4.
There is ample evidence in the record Mary filed her modification suit
frivolously and for the purpose of harassing James. It was not error for the trial
court to allow additional findings of fact and conclusions of law to be filed and if it
was error, it was invited error. Attorney fees under TFC §156.005 are not
sanctions but are a statutory method of awarding attorney fees as costs in
modification suits – this Court should overrule Mary’s Issue No. 5.
Page 23 There is ample evidence in the record to support the award of attorney fees
under TFC §156.005 and §106.002. The amount of attorney fees are within the
discretion of the trial court -- this Court should overrule Mary’s Issue No. 6.
Page 24 Argument
Reply to Issue No. 1: Appellee admits the modification of the parental
rights was not plead, but Mary failed to preserve the error for appeal.
Argument & Authorities
At the conclusion of the trial, the Court awarded James sole managing
conservatorship of the children. At the motion for entry of judgment/motion for
reconsideration, Ashley Tomlinson, attorney for Mary, pointed out there were no
pleadings on file to remove the parties as joint managing conservators
(RR9_15:16-19). The Court sustained Ms. Tomlinson’s objection and retained the
parties as joint managing conservators; however, the Court granted James
additional exclusive rights concerning the children. The Court asked Ms.
Tomlinson which rights she was specifically worried about under TFC §153.132
(RR9_10:23-24). Ms. Tomlinson replied the right to consent to marriage and
enlistment, the right to represent the children in legal actions, and the right to
service and earnings of the children (RR9_10:25-12:6). Ms. Tomlinson failed to
object there were no pleadings on file to support the modified rights.
Page 25 Ms. Tomlinson’s failure to specifically object there were no pleadings on
file to support modifying the rights deprived the Court the ability to cure the
alleged defect at the time of the hearing.
As a prerequisite to preserving a complaint for appellate review, the record
must show the complaint was made to the trial court and state the grounds for the
ruling the complaining party sought from the trial court with sufficient specificity
to make the trial court aware of the complaint. TEX R. APP 33.1
A party should not be able to neglect to complain about an error at trial and
then surprise his opponent on appeal. Mansions in the Forest, L.P. v. Montgomery
County, 365 S.W.3d 314, 317 (Tex 2012), citing In re B.L.D., 113 S.W.3d 340,
350 (Tex. 2003) and Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)
Appellee concedes he did not specifically plead for the modification of the
exclusive rights awarded to James but argues Mary did not preserve error.
Reply to Issue No. 2: The trial court did not modify the existing 2010
orders regarding James’ exclusive right to make medical, education, and
welfare decisions on behalf of the children, but only stated which method
should be used.
Page 26 Argument & Authorities
The conflict between James and Mary has gone on for nine and a half years.
(RR8_87:14-21). The prior modification order dated April 15, 2010 (hereinafter
the “2010 Order”) gave James certain exclusive rights with regard to the children
but conditioned those rights upon James consulting with Mary (CRS1_8). In
addition, the 2010 Order gave each parent the right to confer with the other parent
to the extent possible before making a decision concerning the health, education,
and welfare of the children (CRS1_5).
James sent Mary over 2,000 pages of emails consulting with Mary regarding
the children’s health, education, and welfare (RR8_98:23-99:10). Mary responded
by making derogatory comments about James (RR8_65:12-13). Mary seldom
communicated with James in a productive fashion (RR8_124:23-125:8).
Numerous complaints were filed against the children’s medical providers, school
officials, and James (See Statement of Facts). James tried every type of
communication possible in an effort to effectively communicate with Mary
(RR8_125:1-8). James testified without court intervention, the conflict will not
stop (RR8_87:14-21).
Page 27 Even though James has sent over 2,000 pages of emails in consultation with
Mary regarding the children’s health, education and welfare, the parties are still not
communicating effectively regarding scheduling children’s medical appointments
(RR3_89:10-91:17), educational decisions (RR3_19:4-21:6, RR3_24:9-23), and
medical providers (RR2_94:10-95:10). Mary even complains the communication
between the parties is poor (RR7_71:15-23).
Looking at the record, it is plain to see consultation between the parents
without a stated method was not working, so the Court provided a method of
consultation between the parents, which was the use of “OurFamilyWizard.”
(CR_54). It is important to note neither party is appealing this method of
consultation.
Appellee is well aware of the recent Flowers decision regarding notice
pleadings and trial by consent. Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.
Houston [14th Dist.] 2013). Flowers is distinguishable in two important respects.
First, in Flowers, the Court completely removed the requirement for
consultation prior to Ms. Flowers exercising her exclusive rights contained in the
original order. In the instant case, the Court ordered James to utilize the
notification and communication facilities of “OurFamilyWizard” to consult with
Mary. The Court did not remove the consultation requirement but only stated
Page 28 which method should be used. Mary does not appeal the use of
“OurFamilyWizard.”
Second, in Flowers, the original order did not condition Ms. Flower’s
requirement of consultation with Mr. Flowers. In the instant case, James was only
required to confer with Mary to the extent possible before making a decision
concerning the health, education, and welfare of the children. There is so much
“bad blood” between Mary and James, the Court simply fashioned a method
wherein the parties could confer with one another to the extent possible.
Lastly, the parties tried the issue of method of consultation by consent.
Mary claimed James was not consulting her before making decisions regarding the
children. Mary and the Amicus Attorney both questioned James regarding
communication with Mary (RR8_98:23-102:2, RR8_123:4-16, RR8_123:23-
125:8). The Amicus specifically asked James what was the best method of
communication between James and Mary (RR8_124:6-8). James stated he was at a
loss what to do (RR8_125:1-8). James stated further without court intervention,
the conflict would continue (RR8_87:14-21).
Mary argued the Court included the provision James has the right to consent
to medical, dental, and surgical procedures on behalf of the children with the
option to consult with Mary. Mary fails to point out James is still required to
Page 29 consult with Mary prior to consenting to medical procedures just like the 2010
Order, but the 2013 Order requires the consultation go through
“OurFamilyWizard.” The trial court specifically addressed Mary’s concerns
regarding the children’s medical information by requiring James to post the
information on OurFamilyWizard. (RR9_7:5-10:2)
Even if the Court finds the requirement of consultation through
“OurFamilyWizard” is a modification, the issue was tried by consent and neither
party is appealing this method of consultation.
Reply to Issue No. 3: The trial court did not modify the existing orders
with regard to the beginning and ending times of Mary’s possession of the
children. Even if the trial court finds the adjustment of the beginning and
ending time of Mary’s possession of the children was a modification, the
beginning and ending time of Mary’s possession of the children was tried by
consent. In addition, termination of Mary’s mid-week possession was tried by
consent.
Argument and Authorities
Since the 2010 modification order, the children’s well-being suffered when
the children were at Mary’s house on a school night. The Court found the conduct Page 30 of Mary had negatively affected the children and continuation of Mary’s mid-week
possession would harm the children (CRS3_37: FoF 5).
The issue of Mary’s weekend possession schedule was tried before the Court
(RR8_125:9-126:11). The children do not have peace at Mary’s house. The
children’s homework was not completed when Mary returned the children to
school after her weekends (RR4_36:18-24). The children came to James’ house
upset, complaining, even crying after Mary’s possession of the children
(RR4_57:21-58:17).
Mary referred to the oldest special needs child as simple and simple minded
(RR6_19:3-14). The middle child was missing school exhausted, stressed out, and
fatigued (RR6_26:7-12). The youngest special needs child needs structure and
stability and became upset and started crying after Mary told him (i) he is autistic
(RR8_11:21-22) and he should be a plumber (RR8_23:11); and (ii) witnessed his
older siblings being thrown out of Mary’s house (RR8_12:2-20) (RR8_13:2-11).
With respect to the Sunday return time of the children, the Court did not
significantly lessen Mary’s possession time but basically switched the pick-up and
delivery time. The Court adjusted Mary’s pickup and return time from Fridays at
6:00 p.m. until the children returned to school on the following Monday to Fridays
Page 31 when the children are dismissed from school until 6:00 p.m. on Sunday. Note this
change was implemented so Mary could begin her weekend possession with the
children earlier and the children could settle down, relax, and have some peace on
school nights.
Trial courts’ judgment must conform to the pleadings; however, if issues are
not raised by the pleadings and are tried by express or implied consent of the
parties, these issues will be treated as if they had been raised by the pleadings.
Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App. Houston [14th Dist.] 2013).
To determine whether the issue was tried by consent, the Court must examine the
record not for evidence of the issue, but rather for evidence of trial of the issue.
Greene v. Young, 174 S.W.3d 291 (Tex. App. Houston [1st Dist.] 2005).
With respect to the pickup and return time of the children, Appellee does not
believe the Court modified the 2010 Order but merely adjusted the times for the
benefit of the children. Assuming arguendo this Court finds there was a
modification, Appellee would argue the parties tried the issue by consent.
With respect to the removal of Mary’s three-hour mid-week possession,
Mary testified James didn’t think the children should have mid-week visitation
with Mary (RR5_28:16-18). There is ample evidence the parties argued over
whether Mary should have overnight mid-week possession of the children (See
Page 32 above). Appellee concedes after a thorough search of the record, Appellee cannot
point this Court to a reference wherein the parties specifically argued Mary’s three-
hour mid-week possession be terminated other than Mary’s testimony. Appellee
believes the Court can infer from the record and Mary’s statement James didn’t
think the children should have mid-week possession, the parties impliedly
consented to trial on termination of Mary’s mid-week possession.
Reply to Issue No. 4: The issues regarding passports and travel
restrictions were both pled and tried.
James wanted to take his children on a cruise around the Gulf of Mexico.
Mary prevented James from taking the cruise with the children because she would
not let James obtain passports for the children (RR8_81:1-83:18).
The 2010 Order provided either parent may apply for the children’s
passports and the other parent shall provide consent in writing within ten days
unless the parent has good cause for withholding that consent (CRS1_3 Page 9-10
of record). The Order did not provide for international travel restrictions.
Page 33 Mary refused James permission to obtain the children’s passports claiming
“good cause” (RR3_66:2-15). When questioned why, Mary responded because
James is of Lebanese descent (RR5_74:11-15). Please note, James has always
been of Lebanese heritage even when he was married to Mary. Lastly, Mary told
the children they would never get a passport because James was trying to eliminate
Mary from the children’s lives (RR7_29:4-11).
James, in his Third Amended Petition, plead for modifications of the
passport provision (CR_4 Page 6 of the Reporter’s Record). Specifically, James
requested: (i) the exclusive right to apply for the children’s passports and (ii) Mary
be ordered to sign authorizations for international travel of the children.
Mary, in her Fourth Amended Petition, requested the court to: (i) restore
(sic) the Court’s orders restricting either party from obtaining travel passports
and/or foreign travel documents for the children and (ii) limit travel to the United
States (CRS1_37 Page 40). As noted above, the 2010 Order did not restrict either
party from obtaining travel passports and/or foreign travel documents for the
children.
During trial, Mary accused James of trying to kidnap the children and take
them to Lebanon (RR13_6-8) even though James is a U.S. Citizen and has not
Page 34 been out of the country in over 30 years (RR8_82:4-83:14). James stipulated to a
Lebanon travel restriction (RR8_111:1-8).
At the conclusion of the trial, the Court granted James’ request for the right
to apply for the children’s passports and ordered Mary to execute any passport
application forms for the children requested by James within 10 days of
presentment of the form by James (CR_34). In addition, Mary requested and the
Court granted the travel restriction be expanded to include the Middle East
(RR8_136:10-14).
If there is any error expanding the travel restriction to the Middle East, it is
invited error. The doctrine of invited error provides that a party cannot complain
on appeal about an action or ruling which she requested the trial court to do or
make. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005). Mary is the
party who asked for expanded travel restriction to include the Middle East and if it
was error for the Court to grant her request, it was invited error and Mary may not
complain about it now.
Page 35 Reply to Issue No. 5: There is ample evidence in the record to support
the Court’s finding, Mary frivolously filed her suit for modification, the suit
was designed to harass James, and award of attorney fees under TFC
§156.005 is not a sanction.
Argument & Authority
There are three subparts to Mary’s fifth issue and each will be separately
dealt with below.
Invited Error
Mary submitted her Additional Findings of Fact and Conclusions of Law
(CRS2_3) which stated in pertinent part:
4. Mary Gerke frivolously filed a suit for modification.
5. Mary Gerke’s suit for modification was designed to harass
Respondent, Jamil “James” Kantara.
On the day of the hearing for Mary’s requested additional findings, Mary
withdrew her requests 6 (now 4) and 7 (now 5) and counsel for James requested
Mary’s withdrawn findings be submitted as James’ requested findings (RR0_6:15-
8:20). Please note, Mary did not withdraw her Conclusion of Law wherein she
requested attorney fees be awarded pursuant to TFC§156.005 as well as TFC
Page 36 §106.002. The Court had previously found Mary was an obstructionist (CRS3_37-
38 FoF 4 and 8).
Mary complains the trial court did not have jurisdiction to make such
findings. The Reporter’s Record shows the following:
The trial court filed its Findings of Fact and Conclusions of Law on
March 27, 2014 (CRS3_37).
Ms. Tomlinson, attorney for Mary, represented to the Court and
counsel for James on October 10, 2014 she did not receive notice the
Court issued its Findings of Fact and Conclusions of Law (RR0_5:15-
17).
Based upon Ms. Tomlinson’s representation, the parties agreed to
extend the deadline for Ms. Tomlinson to submit her requested
additional findings (RR0_4:21-5:14).
On October 30, 2014, the Court signed the Additional Findings of
Fact and Conclusions of Law requested by Mary (CRS2_3-4).
The doctrine of invited error provides that a party cannot complain on appeal
about an action or ruling which she requested the trial court to do or make.
Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005).
Mary is the party who asked for additional time to file additional findings of
Page 37 fact and conclusions of law. If it was error for the Court to grant her motion for
additional time, it was invited error and Mary may not complain about it now. In
addition, Mary did not object to the inclusion of additional findings 4 and 5 at the
hearing and any error was waived.
Mary’s suit was filed frivolously and was designed to harass James.
The conflict between James and Mary has been going on for nine and a half
years and without court intervention, the conflict will continue (RR8_87:14-21).
Since the 2010 modification, Mary has been attempting to drain James’ resources
through endless litigation and ultimately force James to relinquish custody. Even
if Mary could establish her suit was not frivolous, it does not foreclose the
possibility the suit was designed to harass James. The history suggests that
Mary’s Motion to Modify is consistent with an overall pattern of harassing
behavior directed at prolonging litigation and draining James’ resources. Mary
specifically told James unless she gets what she wants, it’s going to cost James an
exorbitant amount of money while she’s representing herself with minimal cost
(RR8_87:22-88:8).
The trial court found there was overwhelming evidence Mary had been an
obstructionist regarding the welfare of the children since the prior modification
proceeding (CRS3_37). Mary or her boyfriend filed numerous complaints against
Page 38 the children’s medical providers, filed complaints with CPS and the police against
James, interfered with the children’s educational decisions, and embarked on a
campaign to harass James (See Statement of Facts). As further proof of Mary’s
continual harassment of James, three days after James told Mary he was thinking
about changing one of the children’s schools, Mary filed her Motion to Modify
(RR7_32:10-22).
Award of attorney’s fees under TFC §156.005 are not sanctions.
The Court’s award of attorney fees pursuant to TFC §156.005 is not a
sanction and the Court need not provide specifics to justify the findings Mary’s
modification suit was frivolous and for the purpose of harassing James.
A trial court may tax attorney fees as costs against the offending party in a
modification suit if the Court finds the suit was filed frivolously or designed to
harass a party. Tucker v. Thomas, 419 S.W.3d 292, 296 (Tex. 2013).
Additionally, Mary fails to make any argument or cite any authority in her
brief requiring the Court to file specific findings supporting its finding her suit
was filed frivolously and for the purpose of harassment of James other than her
claim of a sanction. Therefore, Mary has waived this issue on appeal. TEX. R.
App. P. 38.1(h): Sterling v. Alexander, 99 S.W.3d 793, 798-99 (Tex. App.
Houston [14th Dist.] 2003. pet. denied).
Page 39 Reply to Issue No. 6: There is ample evidence for the award of
attorney’s fees under TFC §106.002 and/or §156.005
James’ attorney fees were offered and proved during trial. The Court found
a reduced amount of James’ attorney fees was reasonable and necessary in this
modification suit (CRS3_38 FoF 9). Mary does not challenge the amount of
attorney fees awarded to James, nor does she challenge said fees were reasonable
and necessary. Mary argues attorney fees should not be awarded as a sanction
under TFC §156.005 and she cannot afford the attorney fees under TFC §106.002.
The award of attorney’s fees in a suit affecting the parent-child relationship
is within the trial court’s discretion. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.
1996).
Texas Family Code §106.002 and §156.005 allow for the award of
attorney’s fees. The trial court has discretion to render judgment for attorney’s
fees and costs in any suit affecting the parent-child relationship. Farish v. Farish,
921 S.W.2d 538, 546-47 (Tex.App.-- Beaumont 1996, no writ); Wolters v. White,
659 S.W.2d 885, 887-88 (Tex.App.—San Antonio 1983, writ dism’d); In the
Interest of Pecht, 874 S.W.2d 797, 803 (Tex.App.--Texarkana 1994, no writ). In
addition, TFC §156.005 authorizes an attorney fee award in modification
Page 40 proceedings when the court believes the suit was frivolous or for the purpose of
harassment.
The standard of review for a trial court’s decision on award of attorney fees
is abuse of discretion. The test is whether the trial court acted without reference to
any guiding rules or principles; in other words, whether the act was arbitrary or
unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). An abuse
of discretion does not occur where the trial court bases its decisions on conflicting
evidence. Bailey v. Rodriguez, 351 S.W.3d 424, 426 (Tex. App. El Paso 2011)
citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). In making its decision,
the appellate court may not substitute its judgment for that of the trial court unless
the trial court’s decision was so arbitrary it exceeded the bounds of reasonableness.
Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App. Houston [1st Dist.] 2011).
Abuse of discretion does not occur as long as some evidence of a substantive and
probative character exists to support the trial court’s decision. Holley v. Holley,
864 S.W.2d 703 (Tex. App. Houston [1st Dist.] 1993, writ denied).
During trial, James’ attorney fees were offered, proved, and admitted into
evidence (RR10_3-27) (RR11_3-27) (RR12_3-29) (RR8_33:23-35:20) (35:24-
36:9-14). During the proceedings, Mary filed over 57 motions (RR13_3-5). The
trial court in its Findings of Fact and Conclusions of Law number 9 found James
Kantara requested and proved attorney’s fees and expenses in the amount of Page 41 $108,811.93 (CRS3_38). The Court awarded $50,000.00 attorney’s fees to
Wilfried Schmitz, attorney for James, which the Court found to be reasonable and
necessary. Mary has not challenged said findings.
The trial court further found, in its Additional Conclusions of Law number
2, attorney fees would be awarded pursuant to TFC §106.002 and §156.005
(CRS2_4).
Mary claims the Court cannot award attorney fees under TFC §156.005
because her modification suit was not filed frivolously or designed to harass James.
Evidence was presented which demonstrated the continual harassment by Mary of
James (See Statement of Facts) and Mary’s intent to continue litigating until she
gets what she wants (RR8_87:22-88:8). To prove her point, Mary filed her suit for
modification three days after James told her he was thinking about changing one of
the children’s schools (RR7_32:10-22).
The Court found Mary was an obstructionist (CRS3_37) and Mary’s suit
was filed frivolously and designed to harass James (CRS2_3). Mary is now asking
this Court to substitute its judgment for that of the trial court albeit there was more
than ample evidence to support the trial court’s findings.
Additionally, the trial court awarded attorney fees under TFC §106.002.
Mary does not challenge the reasonableness and necessity of James’ attorney fees
Page 42 but only that she cannot afford to pay them. It should be pointed out Mary earns
$6,786.00 per month plus an additional $1,000.00 per month as car reimbursement
for a total of $7,786.00 per month (RR7_67:17-68:1). In addition, Mary, in her
affidavit attached to her brief, claimed she paid her appellate attorney over
$30,000.00. The trial court heard Mary’s testimony and determined $50,000.00
was reasonable in light of Mary’s financial condition and obstructionist attitude.
The trial court did not abuse its discretion in awarding attorney fees under
either TFC §156.005 or TFC §106.002.
Page 43 PRAYER
Even a cursory review of the evidence and the pleadings demonstrates that
the trial court correctly ruled on Appellant’s issues no. 1 through 6 in rendering
judgment for Appellee. For the reason stated in this brief, Appellee asks the Court
to overrule Appellant’s issues no. 1 through 6.
Respectfully submitted, Wilfried P. Schmitz & Associates, P.C.
Digitally signed by Wilfried Schmitz
Wilfried Schmitz DN: cn=Wilfried Schmitz, o=Wilfried P. Schmitz P.C., ou, email=wilfried@schmitzlaw.com, c=US BY: _________________________ Date: 2015.01.07 17:53:07 -06'00'
Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Phone: (281) 486-5066 Email: Court_Documents@schmitzlaw.com Attorney for Jamil “James” Kantara
Page 44 Certificate of Compliance
Pursuant to TRAP 9.4(i)(3), I hereby certify that this brief contains 5,039 words as
determined by the word processor function excluding exempted items as listed
under TRAP 9.4 (i)(1)
Digitally signed by Wilfried Schmitz DN: cn=Wilfried Schmitz, o=Wilfried P. Wilfried Schmitz Schmitz P.C., ou, email=wilfried@schmitzlaw.com, c=US BY: _________________________ Date: 2015.01.07 17:52:38 -06'00'
Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Phone: (281) 486-5066 Court_Documents@schmitzlaw.com Attorney for Jamil “James” Kantara
Page 45 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Jamil
“James” Kantara’s Reply Brief has this 7th day of January, 2015, been sent
pursuant to T.R.A.P. 9.5 (b)(1) by electronic mail, to the following:
Mary Lynn Kantara Gerke 707 Almond Pointe League City, Texas 77573 marykantara@gmail.com
Ashley Tomlinson 1800 Saint James Place, Suite 620 Houston, TX 77056 atomlinson@dalefamilylaw.com
Douglas York 3355 W. Alabama, Suite 100 Houston, Texas 77098 york@douglasyork.com Digitally signed by Wilfried Schmitz
Wilfried Schmitz DN: cn=Wilfried Schmitz, o=Wilfried P. Schmitz P.C., ou, email=wilfried@schmitzlaw.com, c=US
BY: _________________________Date: 2015.01.07 17:52:06 -06'00'
Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Phone: (281) 486-5066 Court_Documents@schmitzlaw.com Attorney for Jamil “James” Kantara
Page 46