Nash Jesus Gonzales and Gonzales & Gonzales, P.C. v. Marissa Ann Maggio

Court of Appeals of Texas·Decided June 25, 2015·No. 03-14-00117-CV·Published

Opinion

ACCEPTED 03-14-00117-CV 5824511 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/25/2015 2:15:56 PM JEFFREY D. KYLE CLERK

NO. 03-14-00117-CV

NASH JESUS GONZALES and § IN THE COURT OF FILED IN APPEALS 3rd COURT OF APPEALS GONZALES & GONZALES, P.C., § AUSTIN, TEXAS Appellants § 6/25/2015 2:15:56 PM v. § THIRD JEFFREY D. KYLE JUDICIAL DISTRICT Clerk § MARISSA ANN GONZALES § Appellee § AUSTIN, TEXAS

APPELLEE MARISSA ANN GONZALES' MOTION TO DISMISS

TO THE HONORABLE COURT:

COMES NOW Appellee Marissa Ann Gonzales, and files her Motion to

Dismiss and respectfully shows the Court as follows:

I.

INTRODUCTION

This case involves an appeal of an underlying divorce and child custody suit.

Pending simultaneously with this appeal is an action filed by Appellant Nash

Gonzales to modify the divorce decree at issue in this Appeal. Appellee seeks

dismissal of this appeal because the relief sought by Appellant in the

simultaneously pending action to modify the parent-child relationship is directly

contrary to the relief sought by Appellant in this appeal, thereby making the issue

in this controversy moot and divesting this Court of its jurisdiction over the issue

in controversy. Without a controversy to decide, any opinion would be advisory in

nature. Accordingly, dismissal is proper.

Page 1

FACTUAL BACKGROUND AND BASIS FOR MOTION

As noted in Appellee's Brief, this is an appeal of a divorce action to

terminate the marriage of Nash Gonzales and Marissa Ann Gonzales and child

custody suit involving their two children. The issues concerning conservatorship

of the children and any geographic restriction on the location of their primary

residence was determined by a jury. See Appellee's Brief at P. 2. Marissa

requested that she be named as sole managing conservator with the right to

designate the children's primary residence with no geographic restriction. !d. Nash

requested that the parties be named joint managing conservators and requested

their primary residence be restricted to Travis County. Id.

After an almost two week trial, the jury determined that the parties should be

named as joint managing conservators, giving Marissa the right to designate the

children's primary residence and that the primary residence was restricted to the

State of Texas. !d. The jury's findings were incorporated into the trial court's

fmal order dated December 9, 2013. Id.

Nash filed this appeal complaining of, among other things, the jury's failure

to restrict the children's primary residence to Travis County or New York on the

basis that the evidence was legally and factually insufficient to support a finding

that the children's residence should be restricted to the State of Texas. According

Page2

to Nash, the evidence at trial supported only a restriction to either New York or

Travis County, Texas. As noted in her brief, Marissa, her children and Nash all

currently live in Collin County, Texas. See Appellee's Brief at P. 6.

In addition to this appeal, Appellant Nash Gonzales recently filed an action

to modify the parent child relationship, such action being styled and numbered In

the Interest of B.NG. and G.J.G. Children; No. 401-56335-2014; 40Pt Judicial

District Court of Collin County, Texas (the "Collin County Lawsuit"). In Nash's

Amended Petition to Modify Parent-Child Relationship filed on May 21, 2015,

Nash specifically pleads for and requests that the geographic restriction on the

residency of the children be limited to Collin County, Texas. A true and correct

copy of Nash's Amended Petition to Modify Parent-Child Relationship is attached

hereto as Exhibit lA.

As shown below, by requesting a residency restriction that is directly

contrary to the relief sought in this appeal, any controversy regarding the jury's

finding limiting the residency restriction to the State of Texas is moot and the

Court of Appeals is divested of its jurisdiction, making a dismissal of Nash's

complaint on appeal proper.

Page3

II.

ARGUMENT AND AUTHORITIES

Under article V, section 8 of the Texas Constitution, the "judicial power

does not embrace the giving of advisory opinions." The Gen. Land Office of the

State of Texas v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990); University

Interscholastic League v. Buchanan, 848 S.W.2d 298, 303 (Tex. App.-Austin

1993, no writ). "It is axiomatic that appellate courts do not decide cases in which

no controversy exists between the parties." !d. Accordingly, if no controversy

continues to exist between the parties, the appeal is moot and the cause must be

dismissed. !d.

The relief requested in Nash's petition (that the geographic restriction be

limited to Collin County) is directly contrary to the relief sought by this Court of

Appeals. On one hand, Nash complains to this Court of the jury's finding

restricting the geographic residency to the State of Texas (as opposed to Travis

County or New York) and on the other hand seeks affirmative relief from the

Collin County District Court to limit the geographic restriction to Collin County.

Nash cannot have it both ways. By invoking the jurisdiction of Collin County

District Court and seeking affirmative relief directly contrary to the relief sought

by way of this appeal, there is no longer a controversy for the Court of Appeals to

decide with regard to the geographic restriction of the children and such issue

Page4

should be dismissed as moot.

Alternatively, to the extent the Court of Appeals determines a controversy

still exists with regard to the geographic residency restriction of the children, the

decision of the Collin County District Court can potentially contradict the decision

of this Court of Appeals. Therefore, alternatively, to the extent the Court of

Appeals determines that dismissal is not proper, Appellee requests that this appeal

be stayed pending the outcome of the Collin County Lawsuit so as to avoid

conflicting judgments.

CONCLUSION AND PRAYER

The relief requested by Appellant Nash Gonzales in the Collin County

District Court contradicts the relief sought in this Court of Appeals, eliminates any

controversy regarding the geographic restriction on the residency of the children

and therefore divests this Court of jurisdiction over that issue. For the reasons

discussed above, Appellee Marissa Ann Gonzales respectfully requests that the

Court grant her Motion to Dismiss.

PageS

Respectfully submitted,

SAVRICK, S CHUMANN, J OHNSON, MCGARR, KAMINSKI & SlllRLEY, LLP

ilson Shirley II te Bar No. 00795647 Jessica Marcoux Hall State Bar No. 24046348 The Overlook at Gaines Ranch 4330 Gaines Ranch Loop, Suite 150 Austin, Texas 78735 512-347-1604 Phone 512-347-1676 Facsimile Email: wilson@ssjmlaw.com Email : jessica@ssimlaw.com

ATTORNEYS FOR APPELLEE MARISSA ANN GONZALES

CERTIFICATE OF CONFERENCE

I certify that I have conferred with Thomas Cowart, counsel for Appellants, by email on June 24, 2015 and he stated that he is opposed to this Motion to Dismiss.

Page6

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Motion for Substitution of Counsel has been served on the following via the Efile system on this 25th day of June, 2015:

Thomas B. Cowart Via email: tom@tcowart.com WASOFF & COWART, PLLC 100 North Central Expressway, Suite 901 Richardson, Texas 75080

Page 7

NO. 03-14-00117-CV

NASH JESUS GONZALES and § IN THE COURT OF APPEALS GONZALES & GONZALES, P .C., § Appellants § v. § THIRD JUDICIAL DISTRICT § MARISSA ANN GONZALES § Appellee § AUSTIN, TEXAS AFFIDAVIT OF C. WILSON SIDRLEY III

STATE OF TEXAS § COUNTY OF TRAVIS §

Before me, the undersigned Notary Public on this day personally appeared C. Wilson Shirley III, being duly sworn under oath, he stated as follows:

"My name is C. Wilson Shirley III. I am over the age of eighteen years and competent to make this affidavit. I am an attorney licensed to practice in the State of Texas. I am an attorney of record for Appellee Marissa Ann Gonzales. As an attorney of record, I have personal knowledge of the facts stated herein and they are true and correct.

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ACCEPTED 03-14-00117-CV 5824511 THIRD COURT OF APPEALS AUSTIN, TEXAS 6/25/2015 2:15:56 PM JEFFREY D. KYLE CLERK

NO. 03-14-00117-CV

APPELLEE MARISSA ANN GONZALES' MOTION TO DISMISS

TO THE HONORABLE COURT:

COMES NOW Appellee Marissa Ann Gonzales, and files her Motion to

Dismiss and respectfully shows the Court as follows:

I. INTRODUCTION