:Tasha Rose Marsh (Pro Se Rppellant)To:Carol flnne Harley 16:16 12/11/17 ET Pg 2-25
CAUSE NO: 0917-00184-CV
IN THE NINTH COURT OF APPEALS AT BEAUMONT
TASHA ROSE MARSH
Plaintiff-Appellant
v. tC ! | 2317 ROBERT CHRISTOPHER MARSH 5**!:>}!"»*•«^ley ...nt-- ',0|:I''-°IJ^ Defendant-Appellee
ON APPEAL FROM THE 258TH DISTRICT COURT THE HONORABLE JUDGE ERNEST MCCLENDON, PRESIDING
APPELLANT'S REPLY BRIEF
PRO SE LITIGANT Tasha Rose Marsh 151 Country Wood Drive Shepherd, TX 77371 Telephone: (281) 419-7100
Oral Argument Requested
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IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant presents the following list of all parties and names and addresses of its counsel:
NO. DV13,774
Appellant/Plaintiff: Counsel: Tasha Rose Marsh Tasha Rose Marsh 151 Country Wood Drive Shepherd, Texas 77371 Telephone: (281) 419-7100
Respondent: The Honorable Judge Ernest McClendon 258th Judicial District Court San Jacinto Court Building 1 State Hwy 150 Coldspring, Texas 77331
Appellee/Defendant: Counsel: Robert Christopher Marsh Seth Evans 507 N. Washington Ave. Livingston, TX 77351 Telephone: (936) 327-0232
AND IN THE INTEREST OF:
A.M.M., S.J.M., S.W.M., A.R.M., H.S.M., J.S.A.M., AND E.L.B.M., CHILDREN
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INDEX OF AUTHORITIES
Statutes
Tex. Fam. Code §6.305(a)(l)(2) 5,8
Tex. Fam. Code §153.001(a)(l)(2)(3) 12,13,14,15,18
Tex. Fam. Code §153.002 12,13,15
Tex. Fam. Code §153.134(b)(1)(A) 14
Tex. Fam. Code §153.192(A) 14
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL 2
INDEX OF AUTHORITIES 3
TABLE OF CONTENTS 4
STATEMENT OF THE CASE 5
STATEMENT REGARDING ORAL ARGUMENT 6 INTRODUCTION 7
LEGAL ARGUMENT 12 I. INDISCRETION 12
II. FALSE ALLEGATIONS 18
III. DE NOVO REVIEW 19
CONCLUSION 22
CERTIFICATE OF COMPLIANCE 24
CERTIFICATE OF SERVICE 24
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STATEMENT OF THE CASE
Utilizing Texas' Long-Arm Jurisdiction (Tex. Fam. Code §6.305(a)(1), (2)), Appellant Tasha Rose Marsh brought a civil divorce action against Appellee, Robert Christopher Marsh, after he fled the state of Texas with the couple's seven children for his parents' home in Florida. Robert Christopher Marsh counter-sued after a mediation process in which couple attempted to reconcile the marriage. Robert Christopher Marsh was awarded right to determine residency of children and returned with them to his parents' home in Florida.
Respondent: The Honorable Judge Ernest McClendon, 258th Judicial District Court,
San Jacinto County, Texas.
Respondent's Action: April 26, 2017, the trial court entered final judgment allowing appellee, Robert Christopher Marsh primary managing conservatorship with joint custody, but with the right to determine residency without geographic restriction.
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STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TRAP RULE 38.1(e) Appellant included a request for Oral Argument and in her initial Brief and in compliance with TRAP RULE 39.7 that request was made on the front cover of her Brief.
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INTRODUCTION
The continued purpose of this Appeal is to demonstrate how rulings by the Honorable Judge Ernest McClendon at the 258th Judicial District Court with regard to conservatorship and visitation of Appellant Tasha Rose Marsh's seven children were made without respect to law and factual evidence and therefore constitutes and warrants a de novo review and
reversal.
During the Lower Court proceedings, Mrs. Marsh—a loving mother who sacrificed her
career, energy, college, and eighteen years of her life to bear, raise, and homeschool seven
children and serve as a dutifui housewife—was railroaded by a sustained, multifaceted
campaign of character destruction not just by her husband but by his family as well. In capsule:
• She was railroaded by false allegations of child abuse by Appellee, a vindictive husband working in concert with the couple's two rebellious teenagers, A.M.M. and S.W.M., to marginalize and belittle Mrs. Marsh and create an environment of open disobedience that reached critical mass when Appellant's two teenagers physically attacked her. Appellee orchestrated this event by encouraging the two teens to freely defy their mother and he utilized it as the lynchpin in influencing the Lower Court's ruiing. Appellee told police officers his wife was "attacking the children" when in
reality she merely disciplined them for striking her, twisting her arm, and stealing her cell phone and threatening to drop it in a toilet. After two officers arrived, they assessed the situation and spoke with the couple and their two teenagers and found no wrongdoing. Appellee was told specifically to stop undermining his wife's authority and let her discipline her children. This was not Appellee's anticipated outcome and
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therefore he called a third police officer to the residence the following morning.
Appellee was clearly not seeking justice, he was seeking a result in his favor.
• She was railroaded economically when Appellee unexpectedly stole away with the
couple's seven children to his parents' home 1000 miles away leaving her penniless, under a mountain of mortgage debt, and having to ask for money from her church
family and father to retain legal counsel and use Texas' "long arm statute" (Tex. Fam. Code §6.305(a)(1), (2)) to force him to return her children to Texas.
• She was railroaded by Appellee's family who played an active, hostile role in the divorce proceedings, in particular Appellee's father, who testified against Mrs. Marsh's character in court even though the in-laws lived across the country and had less than peripheral involvement or knowledge about Appellee/Appellant's relationship other than what Appellee told him. Appellee's aunt played a similar role, acting as his legal counsel and encouraging separate false allegations made against Mrs. Marsh —allegations rejected in Florida court. Appellee's family were making a flagrant, undisguised play for her children. Mrs. Marsh was not involved in a divorce
with Appellee, but effectively his entire family, who put their resources and witness testimony at the service of co-opting her children.
As this Appeal will demonstrate, all of the above combined to create a perfect legal storm whereby Mrs. Marsh lost all seven of her children through the indiscretions of a Lower Court Judge who, although ostensibly well-meaning, executed his duties in what must be the very definition of arbitrary and unreasonable with respect to the statues and traditions of Texas Law. Judge McClendon allowed two rebellious teenagers, one of which he found "very, very angry" (R.R. p. 167) and "definitely" thought "needs counseling"-which he in fact ordered for the two teenagers (R.R. p. 167)-to effectively run the legal show in what cost Appellant all of her children resulting in their removal by Appellee to a distance
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equivalent to that of London to Rome. Furthermore, Judge McClendon ruled that Mrs. Marsh
should have less-than-standard visitation, as if it were an example of impartial and
reasonable adjudication, much less realistic, for a mother of seven to drive 2000 miles
round-trip to get her children once monthly for weekend visitation, standard or not.
In his rebuttal, Appellee sustains this campaign of character destruction, a mixed
bag of open and covert methods including raising false accusations, planting rumors, and
manipulating information. At one point, Appellee plays judge and jury by pronouncing Mrs.
Marsh guilty as charged for "felony injury to a child" (p. 3), a false allegation made by
Appellee and later no-billed by a Grand Jury. Appellee banishes the presumption of
innocence by stating Mrs. Marsh "was arrested for felony injury to a child on October 25,
2016." Not alleged felony injury to a child... 6th Amendment to the U.S. Constitution and a
fair and speedy trial be damned. That the record for this serious charge—the lynchpin of
Appellee's case and the Lower Court's ruling—is set straight later in his rebuttal (p.14) is a
moot point as the table has been set. Opening his rebuttal by insinuating Mrs. Marsh is a
felon guilty as charged of child abuse should serve to cast a stark light on the methods of
character assassination utilized against Appellant in the Lower Court proceedings and continue to be tactically employed as the case finds itself before the Court of Appeals. Even
as Appellee suddenly discovers the word "allegations" (p. 14), one page later Mrs. Marsh is
back at the mercy of frontier justice as he states "even if the evidence of Appellant's abuse was not supposed to be taken into consideration" (p. 15). What abuse? The so-cailed
"abuse" Appellee found at the end of the magic rainbow long before Mrs. Marsh had her day in court and was found innocent of the alleged abuse manufactured and foisted upon her by the Appellee? If this disingenuous half-truth and wordplay cannot pass freshman journalistic standards, what place has it in a court of law other than to undermine the truth?
It is difficult to separate Appellee's legal arguments from the ad hominem attacks
woven into his rebuttal. Appellee states that after 18 years of marriage, seven children and
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five miscarriages, 17 years of childrearing, homeschooling and being a housewife, Mrs.
Marsh suddenly has "a pattern and history of bad behavior and poor parenting" (p.6). She
has suddenly become "violent towards Appellee and the parties' children" and then "been
arrested" (p.2). In addition to being "abusive" to all in the household, Appellee states "she
was difficult to live with" and "the children wanted nothing to do with her" (p. 12), In fact,
she flat out puts "the children in emotional and physical danger" (p. 20) and their house,
which Appellee had occupied for half-a-decade and only recently left, is now "infested with
fleas" and has "water leaks." Appellee does everything but invoke the Spanish Inquisition and designate their family home of half a decade the Amityville Horror. Comically, Appellee
drafted his "J'accuse...!" rebuttal the very moment Mrs. Marsh—heretofore the child-beating
felon jailbird according to Appellee—had possession of their four youngest children for the
recent 2017 Thanksgiving holiday at the behest of the Appellee and at the very house he
smears as a flea-bitten, water leaking house of abuse and horror! It should also be noted
that this past summer Appellee let the same youngest four children spend two months of
summertime vacation with their mother at the same house "infested with fleas" and "water
leaks" and with this very same mother whom Appellee condemns as an "emotional and
physical danger" to the children.
If being characterized as an "emotional and physical danger" to her children (who Appellee happily turns over for months) is not enough, Mrs. Marsh is furthermore vilified as
inept. Although she has homeschooled their seven children for seventeen years, Appellee is now worried because, as he puts it, she has "no specific degrees or experience other than
what she had done with the children in the past" (p. 11). In fact, she plainly just does "not do a good job of being a hands on parent" and "the children often had to fend for
themselves when in her care" (p.12). Mea culpa! Somehow ail of Mrs. Marsh's children
learned to read while in "in her care" and were never held behind for the better part of twenty years during Mrs. Marsh's homeschooling of them. In fact, they excelled under her
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tutelage. Yet the portrait Appellee paints for the Court is one of Les Miserables street
urchins at the mercy of passers-by; guttersnipes eating green onions growing In the yard
while their mother tells them to eat cake and has her nails done. What Appellee fails to
mention Is that he is a work-from-home house-husband, so the children were never simply
"in her care" nor "had to fend for themselves," they were in fact in his care as well, 24x7,
year after year.
Finally, Appellee plays the last character assassinating card in his brief: Mrs. Marsh,
the "violent" "abusive" "difficult to live with" cheating guilty-until-proven-innocent felon with
"a pattern and history of bad behavior and poor parenting" who puts "the children in
emotional and physical danger" in her flea-infested water-leaking house.... Mrs. Marsh
plainly just does not care about getting her children because "Appellant did not file her
Petition for Divorce seeking custody of the parties' children until February 9, 2016
approximately three months after the parties separated and Appellee moved with the
children to Florida" (p. 2). The reason for this is because Appellee, the parties' sole
breadwinner for 18 years, abandoned her and left her penniless with their $125D/month
mortgaged property, utility and credit card bills, and a broken down car. Mrs. Marsh, who
had only spent her entire adult life raising and schooling their children, possessing no other
skill set than those of "mother" and "housewife," had to go out and look for work, lean on
the goodwill of her church to help keep the lights on, and it took those months to financially
obtain the funds to secure legal counsel to file for Divorce. Appellee's rebuttal is a virtual
North Korea loaded with Weapons of Mass Distraction.
The matter at hand is to reexamine the court ruling for indiscretion with respect to
the Lower Court, not to sling mud nor plumb the symptoms of a marriage in a downward
spiral, actions Appellant believes obscure and detract from the facts and law needed to
resolve the Appeal at hand. It is less the concern of Mrs. Marsh that Appellee intentionally
inserted these emotionally sensational, denigrating characterizations and half-truths for this
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purpose, more her belief that the issues in the Appeal are better served by putting on a
business face and not war paint. To wit: Did the Honorable Judge Ernest McCiendon
reversibiy err in seizing all seven of her children and giving full residential custodial powers
to Appellee without regard to geographic restriction? Did Judge McCiendon make a snap
decision based on emotion and/or insufficient evidence that qualifies as arbitrary and
unreasonable with respect to Texas' statues, legal traditions, and the opinion of the Ninth
Circuit Court of Appeals?
LEGAL ARGUMENT
I. THE DISTRICT COURT EXHIBITED ARBITRARY AND IRRATIONAL INDISCRETION BY
GRANTING APPELLEE RESIDENTIAL CUSTODY WITHOUT GEOGRAPHIC RESTRICTION AND
ALLOWING CHILDREN TO BE REMOVED TO FLORIDA
On the issue of the children being removed from their mother 1000 miles away to
Florida, a ruling completely at odds with any sober interpretation of co-parenting with
respect to Tex. Fam. Code §153.001(a)(l)(2) and best interest of the child under Tex. Fam.
Code §153.002, Appellee concedes he gave the Trial Court "conflicting evidence" (p. 11)
and on this point Appellant agrees. Appellee admitted to the Trial Court he works from
home over the Internet (R.R. p, 67) and can do so from anywhere with an Internet
connection. Ergo, Appellee's desire to remove the children from their mother across the
country was in no way influenced by better job opportunity, pay, or the advancement of his
career. For years Appellee stayed at home to work rather than commuting into the nearby
fourth-largest city in the United States, Houston, and thriving in a department or business
unit as part of a team or management. Appellee had aspirations to be a comic book artist
and this stay-at-home, telecommuting house-husband arrangement was conducive to this
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pursuit. Appellee could move to Canada, Florida, Zimbabwe or choose to stay in Texas, in
no way would his work situation change or be impacted. In fact, Appellee TWICE admitted
to the Trial Court that the children's homeschooling regime in Florida was "identical" (R.R.
p.89) to the programs that the children were previously doing in Texas with their mother.
So what underlying motive would Appellee have to remove the seven children a thousand
miles away from their home and mother—the distance from London to Rome—which of his
own admission in no way advanced his career or financial standing nor the children's
education, which he twice admitted was "identical" to that provided by Mrs. Marsh? A: It
was less a run to Florida, more a run into the arms of his enabling mother and father, which
Appellee admits was the driving reason (R.R. p. 69) for his desire to abandon his home and
property and wife in Texas where he had set down roots for years with his Mrs. Marsh and
their seven children. It should also be noted that just prior to the divorce proceedings
Appellee declared bankruptcy (Case Number 15-32593, Southern District of Houston
Division, Judge Karen Brown presiding) after years of mismanaging his finances and
spending beyond his means. One may logically construe this as a bankrupt middle-aged
father of seven fleeing his wife and mortgaged property to live in his parents' basement
under the pinions of their wings. However, Appellee's bankruptcy only facilitates his ability
to keep the children in their home state, not hinder it. By abandoning his creditors and
financial obligations, Appellee had no pressing need for his parents' financial and residential
resources, a key point to consider in the Lower Court's conservatorship decision with regard
to Tex. Fam. Code §153.001(a) 1-3 and §153.002. When Appellee admits he wants the
Court to give him "the authority to move the children to Florida" so that he could "have
help" from his parents (R.R. p. 69), what "help" does he specifically mean? Appellee wiped
his debt slate clean! Homeschooling the children? He believes that is "identical" to what Mrs.
Marsh provided the children. Work? He can theoretically do his job from a Starbuck's with
Wi-Fi in Katmandu.
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More telling than Appellee's strange call for help a thousand miles away however, is
Appellee's view on co-parenting. When pressed on this matter with a hypothetical situation
where either Appellant or Appellee could move the children across the country (R.R. p.71),
he hedges with contradictory albeit self-serving responses:
"COUNSEL: But either way, if you live in Florida, either she has to move. If she moved to
Wisconsin, you would have to move; is that correct?
APPELLEE: Yes.
COUNSEL: So the only way that y'all could effectively actually be co-parents is for the Court
to require y'all to be in one location?
APPELLEE: I would say no. "
This disingenuous and seemingly-confused response by Appellee is exemplary of the
"conflicting evidence" he concedes in his rebuttal he gave the Trial Court. Appellee must
twist himself to pay lip service to Texas' co-parenting Public Policy in Tex. Fam. Code
§153.001(a)(l)(3), but catch and correct himself in a Tour de France of backpedaling when that policy conflicts with his aims to move the children four states away. Appellee believes the winning residential custodian should have the power to move cross-country and the loser should move accordingly—in the best interest of co-parenting of course!—but any ruling geographically restricting him and the seven children to their home state of Texas, and concomitantly their mother, is somehow not conducive to co-parenting! Texas courts
routinely geographically restrict parents (Tex. Fam. Code §153.134(b)(1)(A)) and even parents appointed possessory conservator may be geographically restricted (Tex. Fam,
Code §153.192(A) "Unless limited by court order..."), Appellee clearly has no interest in co-
parenting in the slightest. His goal is trading in the children's mother for his parents and preempting her altogether. In effect, he is saying: Yes I will move to Wisconsin in the
interest of co-parenting if she wins, no I don't think I should be restricted to the state they
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were raised in for the past seventeen years so they can be near their mother if I win. It is
the cross-examination equivalent of "Do as I say not as I do."
Contrary to Appellee's accusation that "there was sufficient evidence in the record to
support the position that Appellant was not a parent that had shown the ability to act in the
best interests of the children" (p. 13), no one individual has shown more personal sacrifice
than Mrs. Marsh in devoting her entire life as a mother to "act in the best interest of the
child" (Tex. Fam. Code §153.002)—seven children to be exact—for the past seventeen
years! She bore them, breast fed all seven, taught them to read, and has shown the utmost
selfless care toward training their faith in God, nutritional health, emotional health,
education, and well-being. The Lower Court did not just arbitrarily show indiscretion in its
application of Tex. Fam. Code §153.001(a)(l)(3), its legal public policy obligation to "assure
that children will have frequent and continuing contact with parents" and "encourage
parents to share in the rights and duties of raising their child after the parents have
separated or dissolved their marriage." By allowing Appellee the sole power to relocate the
couple's seven children 1000 miles away from their mother simply to be close to now-doting
grandparents whose role for the last seventeen years regarding the children has been
tangential at best, the Lower Court obliterated Tex. Fam. Code §153.001(a)(l)(3). It should
be noted that Judge McCiendon did not just reversibly err with respect to Texas statutes and
guiding principles in an unreasonable and arbitrary manner, Judge McCiendon did so while
throwing impartiality to the wind. While making a snap decision on residential custody during his interview of the teenagers he went on to characterize as emotionally unbalanced (R.R. p. 167) and "angry, very angry," Judge McCiendon regrettably apprises Mrs. Marsh's teenagers of this information in a decidedly unprofessional manner (R.R. p. 147):
"THE COURT: And, of course, y'all both indicated y'all love Florida, too. So I just want to know if y'all have a spare bedroom where I can come down there during the summer."
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What place this whimsical, personal statement has in a Trial Court proceeding by a
Magistrate removing seven children from their mother of seventeen years based upon the
statements of two rebellious teenagers is confounding. After Judge McCiendon is told by one
daughter, SJ.M., "It's nice. You should" he closes with "I wish I could. Well, look, I'm going
to rule for your dad to have custody of y'all." (R.R. p. 147). Does Judge McCiendon also long
to see Disney World during his imaginary summer stay in his "spare bedroom" in Florida
with Mrs. Marsh's children? Unfortunately however, this is the SECOND TIME in the Court
Record that Judge McCiendon has expressed his wishes for this. The first occurs in the
earlier interview with Mrs. Marsh's son, S.W.M. (R.R. p. 144):
"THE COURT: Do you like living down there in Florida?
S.W.M.: Yes, sir.
THE COURT: Is the weather down there real nice?
S.W.M.: Yeah, usually.
THE COURT: Do you have a spare room, then? I might come down there."
One can fathom Judge McCiendon, a septuagenarian, being partial to Florida—a
Mecca for elderly retirees, 'God's Waiting Room' so to speak. One can comprehend Judge
McCiendon being biased to the children's grandparents, who are in fact elderly retirees, to
their mother of seventeen years' expense. In his brief interview with the teenagers the only
substantive detail given about either grandparent is that the grandmother "makes the best
spaghetti" (R.R. p. 137). Should Mrs. Marsh and her former mother-in-law have a cook-off
to see whose spaghetti wins residential custody? In all seriousness, did the Lower Court
consider how many of the seven children's dirty diapers Appellant has changed versus her
mother-in-law? One can understand the partiality, but one cannot define a Lower Court
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judge, or any judge, pining for a "spare bedroom" in Florida with two rebellious teenagers
craving to run away from their legitimately disciplining mother as reasoning, impartial, and
exemplifying judicial discretion. These capricious statements belie Appellee's assertions
that the Lower Court did not act arbitrarily. What could be more arbitrary?
In capsule: after filing Chapter 7 bankruptcy, Appellee stole away with the couple's
children in the night to his parents' home requiring Mrs. Marsh to file for divorce and force
him back. During the Lower Court proceedings, what were Appellee's good faith reasons for
wanting to move the children 1000 miles away? Work opportunity? No. Better pay? No.
Children's education? He twice admitted that their homeschooling was "identical" to what
their mother provided for them. Texas statutes and the guiding rules and decisions function
to encourage the parties to live close to one another to best facilitate the opportunity for the
parents to "co-parent" with one another and to lessen the transportation burden on both
parties. Appellee had discarded his debt and ditched his creditors via Title 11 of the United
States Bankruptcy Code. As part of the Divorce Settlement he signed over the couple's house and property to Mrs. Marsh, making her responsible for the $114,000 mortgage and property taxes, effectively papering over the last of his financial obligations. Appellee, debt
free and still working the same online job workable from anywhere with an Internet
connection, had absolutely no compelling, substantive reason for requesting the Lower
Court to grant him full residential custody of the children without regard to geographic restriction. For its part, the Lower Court based its decision on a brief exchange with the two
teenagers who had attacked Mrs. Marsh for disciplining them, two teenagers for whom the
move to Florida was merely a Golden Ticket to run away from their mother. During their interview the Lower Court absurdly hears grandmother's spaghetti and nice weather as
among its reasons to strip Mrs. Marsh of her seven children. The fractious teenagers, Judge McCiendon tells Mrs. Marsh afterwards, "like the weather" (R.R. p. 158), they "like living with their grandfather and their grandmother" and that "I don't have any problem, you
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know, finding that the father should be the managing conservator and that you should have
the minimum amount of visitation." If this is not arbitrariness, if this is not an unreasonable
example of indiscretion in the eyes of Texas jurisprudence, then Appellant begs to know:
what is?
Geographic restrictions are a common occurrence in Texas divorce proceedings. Does
"beautiful weather" and grandma's "great spaghetti" and an elderly judge's waking
daydreams of a "spare bedroom" next to minors in Florida abrogate the rights of Texas
mothers and fathers with regard to the Parent-Child Relationship in Texas Family Code
Section 153.001(a)(l)(2)? Appellant beseeches the Higher Court: Reverse and remand.
II. THE DISTRICT COURT ERRED BY CONSIDERING UNFOUNDED, UNPROVEN, AND
ULTIMATELY FABRICATED ALLEGATIONS OF CHILD ABUSE AGAINST APPELLANT
In his rebuttal Appellee states that the Appellate Court "may reverse the trial court's
decision only if it is arbitrary and unreasonable" and "may set aside a verdict only if the evidence supporting it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong or manifestly unjust" (p. 8). Appellant completely agrees. In the case of the
false child abuse allegations leveled against Mrs. Marsh, which hung over the Trial Court like
an ominous black cloud, it was not the nature of the evidence but rather the seriousness of
the charge that prejudiced the Lower Court against Mrs. Marsh and unjustly impacted the proceedings.
Contrary to assertions made by Appellee, there was no "significant evidence" that
Mrs. Marsh "had been abusive to the children (p. 12)." Mrs. Marsh was NOT and is NOT an
abusive mother. Exactly which children, what abuse, and the nature of any evidence Appellee never bothers to mention in his rebuttal, he merely parenthetically tacks on some page references to the divorce transcripts to the effect of Mrs. Marsh was "abusive to the
children," go see for yourself. What we are led to is testimony from the Appellee himself
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during their bitterly contested custody dispute that the couples' 17-year old daughter, at
that point ensconced in Florida with her siblings, was "physically violent," "throwing up,"
and "spending the evenings crying" having "nightmares" at the thought of seeing their
mother for Christmas (R.R. p. 84). Their 14-year old son, Appellee states, was also "crying
a lot." In fact, according to Appellee, all seven children were exhibiting "similar symptoms
before the visit" (R.R. p.85). We are asked to believe that over a half-dozen children aged
toddler to teenager—up until that point raised and homeschooled all their lives by their
mother—were "exhibiting" "physically violent" Exorcist-like symptoms before a visit with her
for the Christmas holidays. Ironically, or some might say comically, in spite of ail of
Appellee's portrayal of children vomiting, crying, dreading, and suffering nightmares about
seeing Mrs. Marsh, five of Appellee's seven children loaded up and spent that Christmas
with their mother in Texas. The focus now will be on the two teenagers who chose not to
participate—Mrs. Marsh's eldest daughter, A.M.M., and her eldest son, S.W.M.—and how
they were instructed by Appellee to openly disobey their mother, which they did to the
extent of physically assaulting her, requiring Mrs. Marsh to discipline them, an event
orchestrated by Appellee and used as manufactured, phony "evidence" of child abuse, This
incident became the central gear turning all the other gears in Mrs. Marsh's divorce
proceedings.
III. APPELLANT HAS STANDING FOR A DE NOVO REVIEW OF TRIAL COURT'S DECISION
WITH REGARD TO MANAGING CONSERVATORSHIP
Appellee's brief is overloaded with cut-and-paste boilerplate essentially treating
standards of review as meaningless save for buttressing his position that the Appellate
Court is little more than a rubber stamp for the Trial Court (p. 8, 9, 10). However, it is the
job of Appellate Courts to review Lower Court opinions and standards of review guide the
Appellate Court in determining the level of error the Trial Court committed and whether that
error should form the basis for reversal. Appellant believes that since the Trial Court
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reached a legal conclusion based on uncontested flimsy and indeed confected "evidence"
[READ: spurious allegations] of child abuse, the Appellate Court should review the Trial
Court's decision de novo.
Due to the fast pace of the Trial Court proceedings, the amount of useful information
the trial judge received was limited. Appellant's divorce trial focused on logistics, witness
preparation, cross-examination of adverse witnesses, and numerous unanticipated
questions of law and, of course, the interview of Mrs. Marsh's teenagers, Consequently, the
Trial Court Judge ruled on those issues with neither extended reflection or extensive
information. In contrast to the hurried schedule of the Trial Court Judge, Appellate Judges
who review the Lower Court's factual findings de novo can focus more of their time to taking
a "hard look" at those factual determinations. On the issue of conservatorship of
Appellant's seven children, it is glaringly evident (R.R. p. 157-158) the Trial Court gave the
overwhelmingly weight of its decision to statements made by the teenagers whom Appellant
loves deeply, but concedes were alienated from her by Appellee:
"THE COURT: Okay. The Court has had a visit with all three children individually and then I
brought them in as a group. And in view of that, I think it's imperative that the father
would be the managing conservator. And the older children have indicated they would like
to have not much visitation. They don't feel like they need much visitation. And I don't
think -- ma'am, I don't think they would even welcome any visitation. Now, the younger
children, of course, I haven't talked to them, but I believe they are different. The older
children have too many past memories of bad times. And for whatever reason, Mrs. Marsh,
they do attribute those bad times to you and not to their father. So I don't have any
problem, you know, finding that the father should be the managing conservator and that
you should have the minimum amount of visitation, even so much so that maybe you
should have visitation supervised."
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As exhaustively detailed in Appellant's original brief, two of these teenagers were
involved in a physical altercation with their mother engineered by Appellee who openly told
them to disobey their mother and ignore her authority. Appellee pounced upon this
altercation to make claims of child abuse, accusations of which two responding police
officers deemed false after having inspected and interviewed all parties and the children.
Operating on advice from Florida, Appellee called police again the following day and the
responding officer was more receptive and he arrested Mrs. Marsh. These charges were
ultimately No Billed by a Grand Jury of San Jacinto County on May 19, 2017 and rejected by
a unanimous jury on October 19th, 2017 after mere minutes of deliberation and after
hearing a full day of testimony from the two teenagers and Appellee, who unraveled under
cross-examination into a mess of conflicting testimony and—in the case of Appellee—did his
cause no service with an embittered, imperious and condescending demeanor. The
proverbial stake in Appellee's heart came when he defiantly told the Court he did not
intervene when his children became physical with his wife after she seized their computers
and in fact had earlier instructed them to do so. Appellee, who at the time of the altercation
was staring at the very real possibility of Child Support orders for seven children and
Maintenance to Appellant, also referred to the day Mrs. Marsh was arrested as "a very important day,"
It took a Court and Jury in Coldspring an entire day of hearing testimony from the
teenagers and Appellee to decide on a misdemeanor, it took Judge Ernest McCiendon mere
minutes with the same two teenagers to justify conservatorship of all of Appellant's children
with full knowledge they would be taken 1000 miles away and effectively terminate the
parent-child relationship with Mrs. Marsh and her children, including the four youngest who
had absolutely nothing to do with the altercation involving her and her eldest son and
daughter. Two rebellious teenagers' view of their mother fail to justify such a tragic outcome. When compared to the gravity of ending a parent-child relationship, reasons such
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as grandma's spaghetti and the "beautiful weather" in Florida are trivial. Far, far more
insidious is the fact that Appellee, on his own admission, had alienated the teenagers from
Mrs. Marsh, instructing them to openly disregard her authority. This miscarriage of justice
should not be papered over and explained away with arcane references to obscure cases
such as those littered throughout Appellee's brief like so much glitter among the chicken
feed; over a dozen citations including that classic of conservatorship determination, Butnaru
v. Ford Motor Co. Every case before the Appellate is unique and it has been Appellant's
stance in the spirit of this Appeal that this case requires no minute sifting through
complicated facts or everything-and-the-kitchen-sink esoteric references to far-flung cases
and decisions of a myriad of courts. The Appellate Court is not the sum of a handful of court
cases, it is a living, working reality.
CONCLUSION
The Lower Court was not familiar with the law or criminal proceedings. It lacked the
experience and skill that can see the evidence behind the evidence. It was drowning in
prejudice and acted according to what it admittedly saw as the credible desires of two
"angry, very angry" fractious teenagers. Impressed, full of respect for these teenagers, it
accorded too much importance to fragile allegations that were leveled against the accused
for the purpose of removing all seven of her children 1000 miles away. For surely it might
have been predicted with certainty that, if the Grand Jury's No Bill and the misdemeanor
trial had taken place before the divorce proceedings, Mrs. Marsh would now be in possession
of her children.
Whereas in the final analysis of the accusations against Mrs. Marsh nothing remains
standing and setting aside the judgment of the Lower Court leaves nothing that can be
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considered to be a crime or misdemeanor; therefore by applying the standard of review
applicable to de novo, no reference to another court should be pronounced.
For the foregoing reasons, the judgment of the Trial Court should be reversed and
the case remanded for de novo review of the Lower Court's decision. Appellant specifically
and respectfully requests that Appellee, Robert Christopher Marsh, be immediately ordered
to return with their seven children to Texas and be geographically restricted to the State
and that Appellant Tasha Rose Marsh be named Managing Conservator of the four youngest
children, A.R.M., H.S.M., J.S.A.M., and E.L.B.M.
Respectfully Submitted,
BY: /s/ Tasha Rose Marsh
151 Country Wood Drive Shepherd, TX 77371 (281) 419-7100 tasharosemarsh@gmail.com
Pro Se Appellant December 11, 2017
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CERTIFICATE OF COMPLIANCE
Pursuant to TRAP 9.4(i)(2)(C) the number or words in this computer generated Reply Brief does not exceed 7,500 words.
CERTIFICATE OF SERVICE
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I, Tasha Rose Marsh, certify that I have served this APPELLANT'S REPLY BRIEF on all other parties which are listed below on December 11th, 2017 as follows:
Appellee; Robert Christopher Marsh 1226 South East Palm Beach Road Port St. Lucie, FL 34952 Telephone(936)217-5967
Seth Evans Evans Law Firm 507 N. Washington Ave. Livingston, TX 77351 Telephone: (936) 327-0232 FAX: (936) 327-0233
/s/Tasha Rose Marsh [Signature of pro se party]
12/11/2017 [Date]
NOTES: Pursuant to Texas Rule of Appellate Procedure 6.3, a party=s lead counsel must be seized. Service on other attorneys for that party is optional, but must be listed above if they are served. Pursuant to Texas Rule of Appellate Procedure 52.7(c), the record must be served on each party in an original proceeding.
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Recipient Information: FAX COVER SHEET To: Carol Anne Harley Fax#: 14098358497 Subject:
Sender Information: From: Tasha Rose Marsh (Pro Se Appellant) Pages: 25 Date: Dec 11, 2017
Comments:
Please find herein my Reply Brief for the Ninth Circuit Court of Appeals, CAUSE NO: 0917-00184-CV. TASHA ROSE MARSH
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