ACCEPTED
01-14-00082-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/9/2015 5:01:40 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-00082-CV
FILED IN
1st COURT OF APPEALS
IN THE COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 5:01:40 PM
FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE Clerk
AT HOUSTON
MARY LYNN KANTARA GERKE
V.
JAMIL “JAMES” KANTARA
APPELLANT’S RESPONSE TO NOTICE OF DISMISSAL FOR WANT OF JURISDICTION
TO THE HONORABLE COURT OF APPEALS:
Appellant files this response to this Court’s notice dated January 27, 2015 regarding its intention to dismiss this matter for lack of jurisdiction.
BACKGROUND
1. On October 28, 2013, Associate Judge Newey signed the Order in Suit to Modify the Parent-Child Relationship (“Order”) from which Mary Lynn Kantara Gerke now appeals. 2. The Order does not include any written finding that the parties waived their right to appeal Judge Newey’s order to the referring court. At the time, Judge
2
Denise Pratt presided over the referring court. 3. However, prior to trial and entry of the Order, the parties twice waived on the record their right to appeal Judge Newey’s decision on final trial. 4. The parties first waived on the record their right to appeal to Judge Pratt on November 28, 2011. See Exhibit 1 at pp.5-6. 5. Subsequently, on August 17, 2012, the parties confirmed that they waived their right to appeal Judge Newey’s judgment on final trial. See Exhibit 2 at p.
ARGUMENT & AUTHORITIES
6. This Court has jurisdiction over this appeal, because the Order does constitute a final judgment. 7. Under Section 201.007 of the Texas Family Code, “an associate judge may sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015.” (emphasis added) TEX. FAM. CODE §201.007(a)(16). 8. Section 201.015 allows parties to waive their right to appeal to the referring court in writing or verbally on the record. TEX. FAM. CODE §201.015(g). 9. A prior waiver under Section 201.015(g) is sufficient to establish an associate judge’s authority to enter a final order under Section 201.007(a)(16). The order in question does not have to include a written finding that the parties already waived their right to appeal. And the mere fact that an order does not include a written reference to the prior waiver does not deprive an associate judge to enter
3
a final order under Section 201.007(a)(16). See Wells v. Wells, 2010 Tex. App.
LEXIS 6787, at 2 (Tex. App. –Houston [14th Dist.] Aug. 19, 2010, pet. denied)
(finding that an order was final under Section 201.007(a)(16) even though the order did not include a written reference to a waiver, because the parties had already waived their right to appeal approximately one month prior to entry of the final order) (attached hereto as Exhibit 3). 10.Because the parties in this matter had already waived on the record their right to appeal under Section 201.015(g), Judge Newey had the authority to enter a final order in this matter under Section 201.007(a)(16). Therefore, the Order is a final judgment and is appealable.
Respectfully submitted,
LAURA DALE & ASSOCIATES, P.C.
/s/ Ashley V. Tomlinson
ASHLEY V. TOMLINSON
1800 St. James Place, Suite 620 Houston, Texas 77056
Tel: (713) 600-1717
Fax: (713) 600-1718
State Bar No. 24075170
E-Service: eserviceavt@dalefamilylaw.com Non-Service:
atomlinson@dalefamilylaw.com Attorney for Mary Kantara Gerke
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CERTIFICATE OF SERVICE
I certify that on this 9th day of February, 2015, a true and correct copy of the foregoing document was served in accordance with the Texas Rules of Civil Procedure as follows:
Mr. Wilfried Schmitz 17040 El Camino Real, Suite 400 Houston, Texas 77058 Attorney of record for Mr. Kantara Via E-Service
Douglas York 3355 W Alabama, Suite 100 Houston, TX 77098-1863 Amicus Attorney Via E-Service
/s/ Ashley V. Tomlinson
ASHLEY V. TOMLINSON
Hearing
I
November 28, 2011
1 REPORTER ' S RECORD VOLUME 1 OF 1 VOLUME
2 CAUSE NO. 2011-46281
3 IN THE MATTER OF IN THE DISTRICT COURT THE MARRIAGE OF 4 Mary Lynn Kantara Gerke AND HARRIS COUNTY , TEXAS 5 Jamil James Kantara
7 8 an
9 ~ K- 311TH JUDICIAL DISTRICT
10
11 12 HEARING
13 14 15 On the 28th day of November , 2011 , the following 16 proceedings came on to be held in the above-titled and 17 numbered cause before the Honorable Robert Newey , Judge 18 Presiding , held in Houston , Harris County , Te x as . 19 Proceedings reported by computerized stenotype 20 machine . 21
22 23 24 25
EXHIBIT 1
Hearing
November 28 , 2011
1 APPEARANCES 2
3 Ms . Ma ry Lynn Kantara Gerke 707 Almond Pointe 4 League City , Texas 77573 Telephone : 281-332-8858 5 Pro s e
6 Mr . Wilfried Schmitz SBOT NO . 17778700 7 WILFRIED SCHMITZ & ASSOCIATES 17040 El Camino Real 8 Suite 400 Houston, Texas 77058 9 Telephone : 281-486-5066 Counsel for Defendant
Hearing
November 28, 2011
1 VOLUME 1 INDEX
2 Hearing
3 November 28 , 2011 4 Reporter ' s Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1
Hearing
November 28 , 2011
1 THE COURT : All right . Court calls 2 Cause No. 2011-46281 ; In the Interest of J , J ,
3 J , and J K . 4 Counsel , identify yourself for the record ,
5 please. 6 MR. SCH MITZ: Your Honor , I 'm Wilfried 7 Schmitz, S-c-h-m-i-t-z . I represent James Kantara. 8 THE COURT : Introduce yourself , please. 9 MS . GERKE : My name is Mary Lynn Kantara 10 Gerke , G-e-r-k-e; and I ' m pro se. 11 THE COURT: And what's set this morning 12 this afternoon? 13 MR. SCHMITZ : Your Honor , it ' s 14 Mrs . Gerke ' s motion that the children to confer with the
15 judge; my motion for atto rney fees , and mo tion to II 16 protective order and a protective hearing .
17 THE COUHT : Okay . How old is the oldest 18 child? 19 MS. GERKE : Sixteen and a half. 20 THE COURT : Okay . Is she o n this case?
21 MR. SCHMITZ : Yes , your Honor . Well, 22 she ' s my client ' s cousin .
23 THE COURT : I ' m sorry? 24 MR. SCHMITZ : She ' s my client ' s cousin . 25 THE COURT : Oh , okay . So , is this a
5
Hearing
November 28, 2011
1 custody case? 2 MS . GERKE : It ' s a modification case . 3 THE COURT : Asking for what? 4 MS . GERKE : Asking -- at this point for 5 confer with the children to see what their preferences 6 are as far as primary residence and possession and 7 access , electronic communication , counseling . 8 THE COURT : So , if this case doesn ' t get 9 resolved , who's going to hear it on final? 10 MR. SCHMITZ : It doesn ' t matter to me , 11 your Honor -- just you or Judge Pratt , either one of 12 you . 13 THE COURT : I ' m the associate judge . 14 Judge Pratt is the elected judge . I ' ll be happy to hear 15 it for you , but you wLll have to waive your right of 16 appeal to Judge Pratt and agree to appeal only to the 17 Court of Appeals for me to hear it ; other wise , you need 18 for her to hear it . 19 MS . GERKE : I don ' t think-- you are fine. 20 THE COURT : I ' m sorry? 21 MS. GERKE : You are fine . You or 22 Judge Pratt . 23 THE COURT : Are you okay for me hearing 24 it? 25 MR . SCHMITZ : Yes , your Honor .
6
Hearing
November 28, 2011
1 THE COURT : Now , why are you opposing me 2 interviewing -- and how old is the youngest child? How
3 old is J ? ; 4 MR. SCHMITZ: J is just ten .
5 J is the one who turned 12 since the last 6 modifi cation . She ' s 13 now. She turned 12 when 7 THE COURT: And you want me to inter v ie w 8 all three of these kids? 9 MS. GERKE : Yes , your Honor. 10 THE COURT : Why should I not do that? 11 MR. SCHMITZ: Your Hono~ this is request 12 of jury trial in this matter. There ' s no -- no motion 13 for temporary orders . 14 THE COURT : Did you request a jury trial? 15 MS . GERKE: I requested a confer to 16 determine what their preference is . 17 THE COURT : Did you request a jury trial?
18 MS . GERKE : No , your Ho n or.
I
19 THE COURT: Did you? 20 MR . SCHMITZ : Yes , your Honor . 21 THE COURT : If a jury trial has been 22 requested , then it ' s useless to intervie w the childre n 23 because I or Judge Pratt or whoever wouldn ' t be able to 24 pass on any information to anybody about that interview 25 anyway.
~------------------------------------~------------~, 1
7
Hearing
November 28 / 2011
1 MS. GERKE: Your Honor , I haven ' t 2 requested that there be a change in the primary 3 residen c e unless the c hi ldre n con fer. I ' m just asking 4 for temporary orders at this point in time . 5 THE COURT: Well , I understand that ; but 6 it is ultimate request for a jury trial . 7 MS. GERKE : The question -- 8 THE COURT : We are not going to change the 9 residence that's been previously establis h ed by court 10 order solely on the preference of the child or the 11 children . 12 MS. GERKE : Okay . 13 THE COURT: There has to be an emergency 14 or immediate threat to them before we will even co nsider 15 that . 16 MS. GERKE : In the alternative , I - - I ' ve 17 asked for confer for it to talk to the children about 18 what they would like as far as having additional 19 expanded visitation or co unseling other issues affecting 20 their -- their relationship with both parents. 21 THE COURT: Is this case set for trial?
22 MR. SCH MI TZ: Mu ch to our c hagrin , I 23 believe my staff saw it and set the trial in February.
24 I am not sure how court ' s dockets is in February. 25 THE COURT: Tammy, can you see or check
8
Hearing
November 28/ 2011
1 and see if this case is set on Judge Pratt ' s or on the
2 docket for jury trial? 3 THE CLERK : Okay , Judge .
4 THE COURT : While she ' s doing that , who is 5 presently primary? 6 MR . SCHMITZ : My client is , your Honor . 7 THE COURT : Ok ay . 8 THE CLERK : Jury trial when , Judge? 9 THE COURT : Say it again? 10 THE CLERK : When did y ' all say it was for 11 j ury t rial? 12 MR . SCHMITZ : I think we sa w it was set on 13 the court calendar in February . Called the jury request 14 and 15 THE COURT : When did yo u p a y the j u ry fee? 16 MR . SCHMITZ : I would be telling the 17 Court -- probably , three -- four weeks or a mont h ago? 18 Two weeks ago? I can get the e x act d ate if 19 THE COURT : I ' m sorry? 20 MR . SCHMITZ : -- the Court wants -- I can 21 get the exact date . 22 THE COURT : It should be on the co mp u t er . 23 MR . SCHMITZ : I can call 24 THE CLERK : Well , February 6th ; but it ' s 25 just on the general docket .
9
Hearing
November 28 , 2011
1 MR . SCHMITZ : Has the jury request fee 2 been paid? 3 THE CLERK : J ury fee paid on 4 Nove mb er 14th . 5 So , they just paid for i t , Judge . 6 THE COURT : Okay . But it ' s t imely paid? 7 THE CLERK : Yes , sir . 8 THE COURT : All right . Let ' s dea l with 9 the protective order first . 10 MR . SCHMITZ : Your Honor , before we start 11 this h earing , I would like to request by the rule 12 invoke the rule . 13 THE COURT : Well , I haven ' t -- I need to 14 hear the argument on the protective order before we take 15 any witness ' testimony . 16 MR . SCHMITZ : Okay . Sure . 17 Your Honor , on the protective order , I 18 have before the Court -- make a long story short -- this
19 case wa s originally a modification case . There was 20 original trial date . It was 2006 , a trial bet ween the
21 parties . The case was -- went up for modi f ication in 22 April -- March -- April of 2010 . After a long jury 23 trial , the -- 24 THE CO URT : When was th i s jury trial? 25 In 2 010?
10
Hearing
November 28, 2011
1 MR . SCHMITZ: In 2010 . 2 THE COURT : Was that in Galveston County? 3 MR. SCHMITZ : Galveston County . 4 THE COURT: Okay . 5 MR. SCHMITZ : The jury awarded the -- it 6 would be the best of the children -- of all four 7 children that my client be awarded primary -- to take
8 care of all children at that time. Since that time, the 9 order was signed in April 15th, 2002 . Since that time,
10 many things have happened. 11 My client was given the exclusive right at 12 the consultation to make medical decisions on behalf of 13 the children among other things . My clie nt has 14 attempted to take the children t o several physicians , 15 and he ' s always be impeded by " letter writing campaigns " 16 or by whatev er by Mrs. Gerke. In fact , attached to my 17 motion is a letter from Dr. Kitt Harrison -- said that 18 he ' s not even going to go ahead and see the children 19 until he gets some of sort of protective order from 20 this court because Mrs. Gerke , since that time , has 21 filed numerous comp l a i nts against other medical 22 professionals. She has been on a " letter wr iting 23 campaign " to those medical professions . We can ' t get 24 anybody to see these children with regard to -- with 25 what's actually going on whether it be psychological ,
11
Hearing
November 28 , 2011
1 et cetera -- in some cases , medical providers , such as 2 lead doctors, et cetera . 3 THE COURT : The basis of your protective 4 order is 5 MR . SCHMITZ : Judge , that she doesn ' t 6 contact them until after Kitt Harrison and the other 7 professional that he decides has a chance to finish his 8 report . And that ' s all we are asking for . 9 THE COURT : That she not con tact wh o? 10 MR . SCHMITZ: Kitt Harrison -- unless he 11 asks her to . No complaints against him , no threats 12 against him , none of that sort of thing . 13 THE COURT : And your response? 14 MS. GERKE : Have you received my response , 15 your Honor? 16 THE COURT : When did you file it? 17 MR. SCHMITZ : November 22nd . 18 THE COURT : Probably not . If you can 19 provide me with a copy -- or let me see if Mr. Schmitz 20 has it . 21 Do you have an extra copy of her response, 22 or do you have a copy of your response? 23 MS. GERKE : Yes , sir . 24 THE COURT: All right . 25 MS . GERKE : Your Honor , Mr. Kantara ,
12
Hearing
November 28 , 2011
1 according to the court orders , is supposed to confer 2 wi th me before he takes the children to a physician, a 3 counselor , or a psychologist or something li ke that . 4 I ' ve created a list for the kids have actually received 5 all the medical care they need . What has happened is , 6 i n some instances , Mr. Kantara ' s -- I work a dis t ance 7 from my home ; and so , the appointments wil l be in the 8 middle of the day . So , I have sent faxes saying that 9 these are my concerns . The kids -- I 'm unaware of the 10 k ids not being able to receive any medical care as far 11 as psycholog i cal care since the rendition -- or since 12 the last orders . I requested the kids receive their o wn 13 counselor that ' s independent of Mr . Kantara o r myse lf . 14 Mr . Kantara ha s engaged in t his effort since the last 15 court orders of tr ying to take the kids to his own 16 pr i vat e counselor ; and I guess no w, he ' s trying to make 17 arrangements fo r an expert because he wants to further 18 exclude me from these kids' lives . And this protective 19 order is just a further effort to his -- to bias 20 Mr. Henderson or Ms . Kennedy or whatever by not allowing 21 me to have my input into what ' s going on with the 22 kids -- 23 THE COURT : Di d you hire Dr . Harrison? 24 MR . SCHMITZ : Well , we attempted to -- 25 yes, y ou r Honor . We tried also hire Ms . Kennedy at one
13
Hearing
November 28 , 2011
1 point -- Dr. Kennedy -- 2 THE COURT : But your protective order is 3 aimed at protecting Dr . Harrison while he does his 4 investigation? 5 MS . GERKE : That ' s right . Dr. Harrison 6 and anybody else that he refers -- part of the work 7 to -- 8 THE COURT : Where do you work? 9 MS. GERKE : I work in Galveston . 10 THE COURT : I know . Doing what? 11 MS . GERKE : Moody National Bank . 12 THE COURT : Doing what? 13 MS . GERKE : I ' m -- I ' m an accountant. 14 THE COURT : I mean , both sides in a 15 custody case have a right to hire their o wn e xp ert if 16 they want to . They pay for them . Expert does whatever 17 the expert does , and then you have the right to take his 18 deposition to enter into whatever discovery you need to 19 find out whether or not any opinion he renders is valid 20 or invalid or whatever . 21 Now , if he -- Dr . Harrison , in this 22 instance , wants to talk to you ; then he will make that 23 desire known , and you can go talk to him . Other wi se , 24 Mr . Schmitz ' s motion is to leave him alone wh ile he ' s 25 doing his investigation .
14
Hearing
November 28 , 2011
1 why should I not gran~ that? It appears 2 that both of you have this ability to threaten the other 3 wi th grievances against their doctors . That ' s your 4 right of free speech , but it is not helpful for your 5 kids ; nor is it helpful for the litigation process . So , 6 that ' s my question to you -- if it ' s their expert, why 7 shouldn ' t they be able to have their e xpe rt do his work 8 whatever that looks like before you have an opportunity 9 to talk to him and crJss -examine him . 10 MS. GERKE : Mr . Schmitz ' s motion was 11 not -- for Ms . Harrison-- just Mr. Harrison 12 Mr . Schmitz's motion ls for me to not to speak to any 13 medical care provider -- 14 THE COURT : Right now , I ' m just focusing 15 on Dr . Harrison . 16 MS. GERKE : -- Just Dr. Harrison 17 THE COURT : I mean , I ' m inclined to grant 18 it as to Dr. Harrison . He is their e xp ert . 19 MS. GERKE : If they are going to have an 20 examine for litigation purposes , and he's not their 21 psycho logist or their counselor -- 22 THE COURT : He ' s just he ' s j us t doing 23 an evaluation from your standpoint ; is that correct , Mr . 24 Schmitz? 25 MR . SCHMITZ : That is correct , your Honor .
15
Hearing
November 28, 2011
1 THE COURT : Okay. Then , he ' s not a 2 treater . He's an evaluator. You can hire your own 3 evaluator if you want to. 4 No , I'm serious . That ' s the way this type 5 of litigation unfolds. All right . I ' ll grant your 6 motion as to Dr . Harrison . Are you asking for anything 7 further? 8 MR. SCHMITZ : Yes , your Honor . Any other 9 medical professionals that he may utilize in his 10 investigation . 11 THE COURT : So , you want to -- 12 MR. SCHMITZ : If he if he decides, for 13 example, he wants to-- I don ' t know a testing by 14 somebody else require testing and review that test or 15 whatever he decides to do , stay out of it . 16 THE COURT : Not any of the treaters of 17 h is -- not any of the treaters of the chi ld ren . 18 MR . SCHMITZ : Not any of the treaters per 19 se . 20 MS. GERKE : Your Honor , I don ' t have any 21 rights to get any sort of evaluation of any sort? All 22 of those rights are Mr . Kant a r a ' s , so -- 23 THE COURT : In this l i t i gation you have 24 the right to get whatever evaluation you think you need . 25 MR. SCHMITZ : With regards to the
16
Hearing
November 28/ 2011
1 children? 2 THE COURT: Absolutely. This is what this 3 is about. There ' s a difference between an evaluation 4 for litigation purposes and a treater for medical or 5 psychological reasons. 6 MS. GERKE: Okay. 7 THE COURT: We ' re talking here only about 8 evaluators. People wh o come in and tell the court or 9 the jury what their opinion is of whatever the subject 10 matter. They are not treaters . They are evaluators. 11 MS. GERKE: And if you don ' t have access 12 to my children during the week to have this done, I 13 still run into 14 THE COURT: Well , then , I can help you 15 with that . If they won ' t make the children available, I 16 can help you with that . Now, what Mr. Schmitz is 17 ta lking about is that Dr. Harrison may want to talk to 18 some other doctor to do some other form of testing. One 19 of these children apparently has some kind of special 20 medical problem. 21 MS. GERKE : Your Honor, two of them have 22 special medical problems, and just so that you are 23 aware , that the kids have pretty much been tested every 24 year since they were little . There have been family 25 psychological evaluations, there have been educational
17
Hearing
November 28 , 2011
1 evaluations; there is evaluations everywhere on this
2 entire family 3 THE COURT : Nobody has evaluated the
4 evaluators . 5 Well , I ' m going to expand the motion , but 6 it does n ot apply to an y doctor who is treating any of 7 these children . If Dr . Harrison wan ts some form of test 8 done by somebody , he ' s going to have to find somebody 9 who ' s not a treater o f these children . 10 MR. SCHMITZ : Yes , your Honor . I ' ll draft 11 you a court order . 12 THE COURT : Okay. Wha t else? 13 MR . SCHMITZ : The last thing we have , your 14 Honor , is our motion to enter attor ney fees and for 15 expert fees . 16 THE COURT : What is your client do for a 17 living? 18 MR . SCHM I TZ : He ' s an engineer for 19 Lockheed Mar tin . 20 THE COURT : And makes ho w much a month? 21 MR . SCHMITZ : About 10 , 000 . 22 THE COURT : I ' m sorr y? 23 MR . SCHMITZ : About 10 ,0 00 a month . 24 Total . 25 ~ HE COURT : A month?
18
Hearing
November 28, 2011
1 MR. SCHMITZ : A month . 2 THE COUR T : And is this a p ost-divorce 3 modification, or were they born without benefit of the 4 marriage? 5 MR . SCH MITZ: No , this is post -- this is 6 second post-divorce modificat io n . This second 7 post-divorce modification was filed by Ms. Gerke . 8 THE COURT : When was the divorce granted? 9 MR . SCHMITZ : Divorce was granted in 2006 . 10 THE COURT : Where? 11 MR. SCHMITZ : In Galveston . 12 THE COURT : Okay . 13 MR. SCHMITZ : And the modification 14 was 2010 , April .
15 THE COURT: Okay . Well, t here was another 16 modifi cation filed little over a year?
17 MR . SCHMITZ : Just a little bit over a 18 year -- at that case -- and her basis -- although she 19 hadn ' t really said so , I think the second modification I 20 was involved in was very costly and time consuming. It
21 was set for a full jury trial and the whole nine yards. 22 And I believe, Ms. Gerke is doing this
23 just to complete my clie nt's resources ; and we can ' t 24 continue to go further because she keeps filing these 25 things. And so , we'd like for this to stop at some
19
Hearing
No vember 28 , 2011
1 point , but since she's bringing this up , we would like 2 to get some attorney fees or something for it because 3 now we're having to hire another expert. 4 To give the judge a little education , in 5 the 2010 trial , there was a court-appointed expert , if 6 you wi ll , on a --on the children ' s mental health . 7 THE COURT : Okay . 8 MR . SCHMITZ : That particular 9 court-appointed expert was very expensive -- was paid 10 for. She ' s in the Children Medical Center; and after
11 that trial, she testified on behalf of my client. This 12 is court-appointed -- not that anybody can do anything
13 with her. She turns around -- and she , Ms . Gerke, files 14 complaint against this particular doctor . This 15 particular doctor don't want to -- because of that 16 complaint . 17 THE COURT : Okay . 18 MR . SCHMITZ : This has cost us more and 19 more money every time. 20 THE COURT: What happened to that 21 complaint? 22 MR. SCHMITZ : Pardon? 23 THE COURT : What happened to that 24 complaint? 25 MR. SCHMITZ : They dismissed that
20
Hearing
November 28, 2011
1 complaint with that particular doctor . 2 THE COURT : Why did t h at cos t your client 3 anythi n g? 4 MR . SCHMITZ : Because that particular 5 expert , if you will , that particular person will not 6 come for ward anymore . The modification trial also had 7 a n amicus with her. We had to pay half of the amicus 8 costs . And we paid money after money , after money , 9 after money , in that case . 10 T HE COURT : Okay . 11 MR. SCHMITZ : And so , it just kept going
12 on and on and on. And this is a year later . I n that 13 trial -- to let you know about the modificat i on trial ,
14 Ms . Gerke claimed the children wante d to live with her . 15 She had people , friends, testify to that . She had her 16 witnesses testify to that, et cetera , et cetera , et 17 cetera . The jury still found , it was in the best 18 i n terest , after hearing all t h e ev i de n ce , that t h e 19 children live with my client . Now , she ' s coming to this 20 court and saying, well , the children want to live with 21 me. 22 THE COURT : Were any attor n ey fees 23 assessed against her in that trial? 24 MR . SCHMITZ : Only on appeal only if 25 she ap p ealed . If she appealed , that would be assessed
21
Hearing
November 28/ 2011
1 against her . 2 THE COURT : Was that the judge ' s decision
3 or the jury ' s decision? 4 MR . SCHMITZ : Jury ' s decisio n. J u ry ruled
5 that if she appealed the case , there will be attorney 6 fees assess . 7 THE COURT : But they did n ' t give any 8 attor n ey ' s fees for the defense of the main case .
9 MR. SCHMITZ : For that ' s correct . No 10 attorney fees were assessed in the main case - - j u st
11 that if it ' s appealed , but it is basical ly the same case 12 we l itigate all over again . I don ' t kn o w when it stops . 13 THE COURT : I don ' t know whether it is or 14 it isn ' t . That ' s a fact or situation that gets -- in my 15 opinion , it gets approached as the t rial p roceeds . 16 MR . SCHMITZ : Right . But we need to be 17 able to defend ourselves --and I don ' t have a 18 problem again , if she ' s paying for 19 THE COURT : I ' ll say to bot h si d es t h at 20 this kind of litigation , loser pays . If you lose , you 21 are going to pay the attorney ' s fees for the other side . 22 If she wins you pay her attorney ' s fees . 23 MR . SCH MITZ : Yes , yo u r Ho n or . 24 THE COURT : We ' ll carry the attorney ' s fee 25 request in che time of trial .
22
Hearing
November 28, 2011
1 MR. SCHMITZ : And the expert fees? 2 THE COURT : If it ' s your e~pert, you pay
3 for him. If she hires an exper t, she pays for her 4 hers.
5 MR. SCHMITZ : Yes, your Honor . 6 THE COURT : Anything else? 7 MS. GERKE : May I give you my -- 8 THE COURT : No , you 've already filed it; 9 and it will work its way to our file .
10 MS . GERKE : I have requested Court order 11 mediation because I -- 12 THE COURT : We require mediation in every
13 case before final trial. 14 MS. GERKE : I ' ve sent multiple requests to
15 Mr. Schmitz 16 THE COURT : I ' m just telling both of you 17 that we requ ire mediation before trial . Anything else? 18 MS . GERKE: If I withdraw my petition for 19 primary custody and just request the expa nded 20 visitation , would that allow for just a bench trial? 21 THE COURT : I 'm sorry . Does it allow 22 for -- 23 MS . GERKE : Just a bench trial at this 24 point, not a jury trial? 25 THE COURT : Yeah , basically. There's
23
Hearing
No vember 28 , 2011
1 nothing -- there is no issue for a jury to decide if you 2 make that decision . 3 MS. GERKE : Okay . 4 THE COURT : All right? Al l right . Thank 5 you very much . 6 MR. SCHMITZ : You said that trial is for 7 February , is that going to be moved now to a j ury trial? 8 THE COURT : No . And I don ' t know because 9 she ' s indicating she may withdraw her request to be 10 appointed primary . 11 MR. SCHMITZ : I ' m sorry . But if she 12 doesn ' t , then 13 THE COURT : If she does not , as far as I'm 14 concerned , it ' s on a ju ry docket . 15 MR. SCHMITZ : Okay . Thank you . 16 MS . GERK E : Your Honor , d i d you make a 17 ruling o n conferring my other iss u es with the 18 children -- 19 THE COURT : I ' m not going to make that 20 ruling until we kn o w whether or not there ' s going to be 21 a jury trial or not a jury trial . 22 MS. GERKE : Okay , your Honor . 23 THE COURT : I need an e ntry date . 24 December 9th on the protective order . 25 MR. SCHMITZ : Dece mber 9th?
24
Hearing
November 28, 2011
1 THE COURT : Yes . 2 MR . SCHMITZ : 9:00a . m., your Honor? 3 THE COURT : Yes. There ' s going to be a 4 formal written order prepared. You ' ll have a chance to 5 review it . If you have any problems with it , come in 6 and we ' l l listen to you on December the 9th . 7 Thank y ' all . 8 MR. SCHMITZ : Thank you , your Honor . 9 Your Honor 10 THE COURT : Yeah . Hold on a minute. 11 MR . SCHMITZ : I think , December 9th is 12 supposed to be advance drafting. Is that a Friday or 13 Thursday? 14 THE COURT : It ' s a Friday. 15 MR. SCHMITZ : I think it ' s advance 16 drafting. 17 THE COURT : Advance drafting 18 MR. SCHMITZ : Yeah -- 19 THE COURT : -- takes preference over 20 getting this order in . 21 MR. SCHMITZ : It doesn ' t , your Honor , but 22 I would ask the Court to wait one week. 23 THE COURT : To December 16th? 24 MR. SCHMITZ : Yes , your Honor . 25 THE COURT : Okay.
25
Hearing
November 28 , 2011
1 MR. SCHMITZ : Thank you. 2 THE COURT : December the 16th instead of 3 the 9th. 4 MR . SCHMITZ: Tha nk you very much, 5 your Honor . 6 MS . GERKE : Thank you v ery much. 7 (proceedings conclude d)
26
Hearing
November 28 , 2011
1 STATE OF TEXAS 2 COUNTY OF HARRIS
3 4 I, Jessica J. Kim, Deputy Court Reporter in and for 5 the 311th District Court of Harris , State of Texas , do
6 hereby certify that the above and foregoing contains a 7 true and correct transcription of all portions of 8 evidence and other proceedings requested in writing by 9 counsel for the parties to be included in this volume of 10 the Reporter ' s Record in t he above-styled and numbered 11 cause, all of which occurred in open court or in 12 chambers and were reported by me . 13 I further certify that this Reporter ' s Record of the 14 proceedings truly and correctly reflects the exhibits , 15 if any, offered by the respective parties. 16 I further certify that the total cost for the
17 preparation of this Reporter ' s Record is $ \j{~.~and 18 was paid/w ill be paid by
19
20 Jess~ca J . Kim , CSR
21 Texas CSR 8971 Deputy Court Reporter
22 311th District Court Harris County , Texas
23 P . O . BOX 19695 Houston, Texas 77224
24 Telephone : 832-398-0576 Expiration : 12/31/2013
EXHIBIT 2
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FOCUS - 1 of 1 DOCUMENT
LEANNE NICOLE WELLS, Appellant v. DOUGLAS GIBSON WELLS, Appellee NO. 14-09-00811-CV
COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON 2010 Tex. App. LEXIS 6787
August 19, 2010, Memorandum Opinion Filed
SUBSEQUENT HISTORY: Petition for review denied record reflects that appellant waived her right of appeal to by Wells v. Wells, 2011 Tex. LEXIS 134 (Tex., Feb. 18, the referring court in writing at the June 18, 2009 hearing 2011) before the associate judge. See Tex. Fam. Code Ann. § 201.015(g) (Vernon Supp. 2009) ("Before the start of a PRIOR HISTORY: [*1] hearing by an associate judge, the parties may waive the On Appeal from the 328th District Court, Fort Bend right of a de novo hearing before the referring court in County, Texas. Trial Court Cause No. 09-DCV-169191. writing or on the record."). Specifically, appellant signed an agreed order before the associate judge that states, "I COUNSEL: For appellants: Michael William Elliott, hereby waive any right of appeal to the referring court Richmond, TX. pursuant to Section 201.015(g) Texas Family Code."
Moreover, this agreed order reflects that the nature of the For appellees: David Perwin, Rosenberg, TX; Adam J. proceeding was a "Final Decree of Divorce." The Morris, Houston, TX. associate judge signed the order, noting that the divorce decree would be entered on July 15, 2009. An associate JUDGES: Panel consists of Chief Justice Hedges and [*2] judge "may sign a final order that includes a waiver Justices Yates and Boyce. of the right of appeal pursuant to Section 201.015." Id. § 201.007(a)(16) (Vernon 2008).
OPINION Under these circumstances, we conclude that appellant waived her right to appeal the associate judge's MEMORANDUM OPINION order to the referring court. We therefore overrule her sole appellate issue and affirm the trial court's judgment.
In her sole issue on appeal, appellant Leanne Nicole Wells asserts that the trial court erred in ruling that her PER CURIAM appeal of an associate judge's entry of the final divorce decree to the referring court was untimely. However, the
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