                                                                              ACCEPTED
                                                                          06-15-00086-CV
                                                               SIXTH COURT OF APPEALS
                                                                     TEXARKANA, TEXAS
                                                                    10/28/2015 1:15:24 PM
                                                                         DEBBIE AUTREY
                                                                                   CLERK

                NO. 06-15-00086-CV

    IN THE SIXTH DISTRICT COURT OF APPEALS   FILED IN
                                       6th COURT OF APPEALS
             AT TEXARKANA, TEXAS         TEXARKANA, TEXAS
                                                10/28/2015 1:15:24 PM
                                                    DEBBIE AUTREY
                                                         Clerk

        IN RE TARA BROOK TYNDELL,
                      RELATOR


         Original Proceeding Arising from the
             196th Judicial District Court
                 Hunt County, Texas
                      No. 76,122
          (Hon. J. Andrew Bench, Presiding)


RESPONSE TO PETITION FOR WRIT OF MANDAMUS


                        Respectfully submitted by,

                        GEORGANNA L. SIMPSON
                        SBN 18400965
                        GEORGANNA L. SIMPSON, P.C.
                        1349 Empire Central Drive
                        Woodview Tower, Ste. 600
                        Dallas, Texas 75247
                        Phone: 214-905-3739 • Fax: 214-905-3799
                        georganna@glsimpsonpc.com

                        COUNSEL FOR REAL PARTIES IN INTEREST
                        JOHN NOWELL AND JENNIFER NOWELL

 ORAL ARGUMENT REQUESTED AT COURT’S DISCRETION
                       IDENTITY OF PARTIES AND COUNSEL


Relator:                           Tara Brook Tyndell
                                   Petitioner in the underlying suit

Represented in the                 E. Alan Bennett
Appellate Court by:                510 N. Valley Mills Dr., Ste. 500
                                   Waco, Texas 76710

Represented in the                 Tonya C. Toups
Trial Court by:                    2615 Calder Ave., Ste 400
                                   Beaumont, Texas 77702

                                   Philip D. Alexander
                                   P.O. Box 38
                                   Emory, TX 75440

                                   Fredrick C. Shelton
                                   P.O. Box 1335
                                   Greenville, Texas 75403

                                   Deborah Slye-Miller
                                   435 S. Bois D’Arc
                                   Tyler, Texas 75702

                                   Bruce N. Smith
                                   SMITH & SHIPLEY LAW
                                   2750 IH-10 East, Ste. 200
                                   Beaumont, Texas 77703

                                   John C. Ginn
                                   P.O. Box 493
                                   Sulphur Springs, Texas 75483



RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page i
Respondent:                        The Honorable J. Andrew Bench
                                   196th Judicial District Court
                                   P.O. Box 1097
                                   Greenville, Texas 75401-1097

Real Parties in Interest:          John Nowell and Jennifer Nowell
                                   Respondents in the underlying suit;
                                   Joint Managing Conservators of the Child
                                   Maternal Great Uncle and Aunt of the Child

Represented in the                 Georganna L. Simpson
Appellate Court by:                GEORGANNA L. SIMPSON, P.C.
                                   1349 Empire Central Drive
                                   Woodview Tower, Ste. 600
                                   Dallas, Texas 75247
                                   Phone: 214-905-3739 • Fax: 214-905-3799
                                   Email: georganna@glsimpsonpc.com

Represented in the                 Holly H. Gotcher
Trial Court by:                    LAW OFFICES OF MORGAN & GOTCHER
                                   2610 Stonewall Street
                                   P.O. Box 556
                                   Greenville, Texas 75403-0556
                                   Tel: (903) 455-3183 (Greenville)
                                   Tel: (903) 450-8800 (Metro)
                                   Fax: (903) 454-4654
                                   holly@morgan-gotcher.com

                                   Shannon M. Estrada
                                   LAW OFFICE OF SHANNON M. ESTRADA
                                   2507 Washington Street
                                   P.O. Box 765
                                   Greenville, Texas 75401

Real Party in Interest:            Zachary Williamson, Pro Se
                                   Respondent in the underlying suit;
                                   Father of the Child


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                    Page ii
                                       TABLE OF CONTENTS


Identity of Parties and Counsel....................................................................... i

Index of Authorities .......................................................................................vi

Abbreviations and Record References ........................................................ viii

Statement of the Case .....................................................................................ix

RESPONSE TO PETITION FOR WRIT OF MANDAMUS

I.      STATEMENT OF FACTS .......................................................................... 1

        A.      THE SAPCR—HUNT COUNTY ................................................... 1

        B.      THE DIVORCE—JEFFERSON COUNTY ........................................ 9

II.     SUMMARY OF THE ARGUMENT ........................................................... 10

III. ARGUMENT ......................................................................................... 11

        A.      RESPONSE TO ISSUE .................................................................. 11

                Respondent did not abuse his discretion in denying
                Mother’s motion to transfer the SAPCR from Hunt
                County to Jefferson County.

                1.       Mother was not entitled to a mandatory transfer
                         of continuing exclusive jurisdiction from Hunt
                         County to Jefferson County ........................................... 11




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                                             Page iii
                          a.       Establishing the existence of a valid mar-
                                   riage to be dissolved is a condition precedent
                                   to a mandatory transfer under Texas Family
                                   Code Section 155.201(a) ........................................ 11

                          b.       Transferring the SAPCR from Hunt County
                                   to Jefferson County would not be in the
                                   Child’s best interest .............................................. 15

                          c.       Mandatory transfer provisions of the Family
                                   Code were not meant as a tool to manipulate
                                   venue and to play courts off one against the
                                   other through the use of a petition for di-
                                   vorce ....................................................................... 18

                          d.       Here, conservatorship of the Child is not an
                                   integral part of Mother and Father’s alleged
                                   informal marital relationship ............................... 22

                 2.       Mother failed to diligently seek a hearing on her
                          motion to transfer ........................................................... 22

PRAYER ......................................................................................................... 24

CERTIFICATION OF FACTS AND VERIFICATION OF RECORD ...................... 25

CERTIFICATE OF COUNSEL REGARDING WORD COUNT ............................ 26

CERTIFICATE OF SERVICE ........................................................................... 26

REAL PARTIES IN INTEREST JOHN AND JENNIFER NOWELL’S APPENDIX:

Tab 1:           Motion for Enforcement of Possession or Access with Tempo-
                 rary Restraining Order and Extraordinary Relief (03/28/11)

Tab 2:           Request for Warrant to Take Physical Custody of Child
                 (03/29/11)


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                                                  Page iv
Tab 3:        Order for Issuance of Warrant to Take Physical Custody of
              Child (03/29/11)

Tab 4:        Motion to Deny Relief in Suit to Modify Parent-Child Rela-
              tionship, Motion to Dismiss, and in the Alternative, Motion to
              Abate Proceedings (06/01/11)

Tab 5:        Bridge Temporary Orders (06/02/11)

Tab 6:        Subpoena Duces Tecum to Mother (02/10/12)

Tab 7:        Citation serving Mother’s Original Petition for Divorce on
              Aunt and Uncle (05/27/15)




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page v
                                    INDEX OF AUTHORITIES


Case Law:

1.     In re Cooper .................................................................................. 16, 17
       320 S.W.3d 905
       (Tex. App.—Texarkana 2010, orig. proceeding)

2.     Fite v. Nelson ...................................................................................... 15
       869 S.W.2d 603
       (Tex. App.—Houston [14th Dist.] 1994, no writ)

3.     Garza v. Texas Dept. of Human Services............................... 18, 19, 24
       757 S.W.2d 44 (Tex. App.—San Antonio 1988, writ denied)

4.     In re Hancock ..................................................................................... 13
       No. 13-09-00123-CV, 2009 WL 1089481
       (Tex. App.—Corpus Christi 2009, no pet.)

5.     In re M.A.S...................................................................14, 18, 19, 20, 24
       246 S.W.3d 182 (Tex. App.—San Antonio 2007, no pet.)

6.     In re Marriage of Allen ...................................................................... 22
       593 S.W.2d 133 (Tex. Civ. App.—Amarillo 1979, no writ)

7.     Neal v. Avey......................................................................................... 14
       853 S.W.2d 707 (Tex. App.—Houston [14th Dist.] 1993, writ denied)

8.     In re Powell ................................................................................... 13, 15
       79 S.W.3d 814
       (Tex. App.—Fort Worth 2002, orig. proceeding)




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                                              Page vi
9.     In re R.E.A. ............................................................................. 18, 20, 24
       No. 13–10–00557–CV, 2011 WL 3557427
       (Tex. App.—Corpus Christi 2011, no pet.) (mem. op.)

10.    Trader v. Dear ..................................................................................... 16
       565 S.W.2d 233 (Tex. 1978) (orig. proceeding)

11.    Yates v. Gaithier .................................................................................. 14
       725 S.W.2d 529 (Tex. App.—Dallas 1987, no writ)

Statutes:

1.     Tex. Fam. Code § 153.002 ................................................................. 16

2.     Tex. Fam. Code § 155.201 .................................... 10, 11, 12, 13, 14, 15

3.     Tex. Fam. Code § 155.204 ................................................12, 13, 15, 23




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                                            Page vii
                  ABBREVIATIONS AND RECORD REFERENCES


Abbreviations:

1.     Tara Brook Tyndell shall be referred to as Mother.

2.     Respondent Honorable J. Andrew Bench, Judge Presiding shall be re-
       ferred to as Respondent.

3.     Real Party in Interest Jennifer Nowell shall be referred to as Aunt;

4.     Real Party in Interest John Aubrey Nowell shall be referred to as Un-
       cle.

5.     Real Party in Interest Zachary Scott Williamson shall be referred to as
       Father.

6.     The child, K.T.W., shall be referred be referred to as the Child.

Record References:

1.     The appendix and optional appendix attached to Relator Tara Brook
       Tyndell’s Petition for Writ of Mandamus shall be referred to as App.
       and OA, respectively, and will be cited by tab and page number as ap-
       propriate. App.__:__; OA.__:__.

2.     The reporter’s records attached to Relator Tara Brook Tyndell’s Peti-
       tion for Writ of Mandamus shall be referred to as RR, and will be cited
       pursuant to Relator Tara Brook Tyndell’s Record Index and page num-
       ber as appropriate. __RR:__. The two reporter’s records containing
       hearing exhibits shall be similarly cited. __RREx:__:REx.__.




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                  Page viii
3.     The appendix attached to Real Party in Interest John and Jennifer Now-
       ell’s Response to Petition for Writ of Mandamus shall be referred to as
       RPI.App, and will be cited by tab and page number as appropriate.
       __RPI.App.__:__.



                             STATEMENT OF THE CASE


Nature of the Case:                The underlying case involves a modification of
                                   the conservatorship of one Child.

Respondent:                        Respondent is the Honorable J. Andrew Bench,
                                   presiding judge of the 196th Judicial District
                                   Court in Greenville, Hunt County, Texas.

Respondent’s Actions:              On November 30, 2010, an agreed final order
                                   appointed Aunt and Uncle joint managing con-
                                   servators of the Child and granted Mother visit-
                                   ation with the Child as agreed to by the Parties.
                                   OA.1. On March 11, 2011, Mother filed a Pe-
                                   tition to Modify the Parent-Child Relationship
                                   (“SAPCR”). OA.2. On August 2, 2011, shortly
                                   after temporary orders had been entered in the
                                   SAPCR, Mother filed in Jefferson County a Pe-
                                   tition for Divorce alleging an informal marriage
                                   to Father. OA.12. On August 15, 2011, Mother
                                   filed a motion to transfer continuing, exclusive
                                   jurisdiction over the Child from Hunt County to
                                   Jefferson County. OA.15. On June 16, 2015,
                                   Respondent signed an ordering denying Moth-
                                   er’s motion to transfer, and on September 26,
                                   2015, Respondent signed an order denying
                                   Mother’s Motion to reconsider. Apps.1, 3.



RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                     Page ix
              RESPONSE TO PETITION FOR WRIT OF MANDAMUS


       Real Parties in Interest Jennifer Nowell and John Aubrey Nowell file

this response to Relator Tara Brook Tyndell’s Petition for Writ of Mandamus

and, as grounds therefore, would show the Court as follows:

                                            I.
                               STATEMENT OF FACTS

A.     The SAPCR—Hunt County.

       1.     On July 9, 2008, the Child was born to Tara Brook Tyndell

              (“Mother”) and Zachary Scott Williamson (“Father”).

       2.     On August 12, 2010, the Child began residing with Jennifer and

              John Nowell, the Child’s maternal great aunt and uncle (“Aunt”

              and “Uncle,” respectively). RPI.App.1:5–8. On November 30,

              2010, an agreed order appointed Aunt and Uncle joint managing

              conservators and Mother possessory conservator, with Mother’s

              visitation with the Child as agreed to between the parties. OA.1.

              Father was not a party to this suit. OA.1.




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                             Page 1 of 26
       3.     On March 11, 2011, less than a year after the agreed order was

              signed, Mother filed a Petition to Modify Parent-Child Relation-

              ship (“SAPCR”) in Hunt County. OA.2.

       4.     On March 28, 2011, at the beginning of a scheduled visitation in

              Hunt County, Mother and Father kidnapped the Child.

              RPI.App.1. That same day, Aunt and Uncle filed a Motion for

              Enforcement of Possession or Access with Temporary Restrain-

              ing Order and Extraordinary Relief. RPI.App.1. On March 29,

              2011, Aunt and Uncle requested and obtained a warrant to return

              the Child to Hunt County. RPI.Apps.2, 3.

       5.     On April 21, 2011, Father filed an answer and counterpetition in

              the Hunt County SAPCR requesting in part that the court appoint

              him and Mother as joint managing conservators. OA.4, 5. Father

              did not identify Mother as his Wife. OA.4:2.

       6.     On May 12, 2011, Father filed an Original Petition for Bill of

              Review in which he sought to set aside the November 30, 2010




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                            Page 2 of 26
                 Agreed Order and asserted that he resided in Van Zandt County

                 and that Mother resided in Hunt County.1 OA.6:1.

         7.      On June 1, 2011, Aunt and Uncle sought to dismiss Mother’s

                 SAPCR because she had filed her modification suit within one

                 year of the prior orders and had not attached a sworn affidavit

                 containing sufficient facts to satisfy the requirements of Texas

                 Family Section 156.102. RPI.App.4.

         8.      On June 2, 2011, the Hunt County trial court entered orders

                 granting Mother and Father limited visitation with the Child, su-

                 pervised      by    an     off-duty     Hunt      County      police        officer.

                 RPI.App.5:2–3.

         9.      On June 22, 2011, Aunt and Uncle served Father with written

                 discovery. OA.10. On June 23, 2011, Aunt and Uncle served

                 Mother with written discovery. OA.11.

         10.     On August 15, 2011, Mother filed a motion to transfer in Hunt

                 County, seeking to have continuing exclusive jurisdiction over

                 the Child transferred from Hunt County to Jefferson County

                 where she had filed a suit to dissolve an alleged informal mar-

1
    The trial court denied Father’s Petition for Bill of Review on October 3, 2011. OA.19.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                               Page 3 of 26
              riage. OA.15. Mother had served neither Aunt nor Uncle with the

              suit to dissolve her alleged informal marriage and did not attach a

              copy of the petition to her motion to transfer. OA.15.

       11.    On September 2, 2011, Aunt and Uncle filed a response and ob-

              jections to Mother’s motion to transfer to which was attached

              Aunt’s controverting affidavit, arguing that Mother and Father’s

              alleged informal marriage was a sham, that the motion to transfer

              was filed in bad faith, and that a transfer of continuing exclusive

              jurisdiction over the Child from Hunt County to Jefferson County

              would not be in the Child’s best interest. OA.16.

       12.    Over the next two years, multiple hearings were set on Mother’s

              motion to transfer, including but not limited to:

                 • September 15, 2011, OA.18, 1RR:11;

                 • February 28, 2012, OA.21, 1RR:11;

                        • Cancelled by Mother’s attorney, OA.22;

                 • September 13, 2012, OA.24;

                 • November 8, 2012, OA.27;

                        • Continued due to Father’s failure to comply with dis-

                            covery requests, 4RR; and

RESPONSE TO PETITION FOR WRIT OF MANDAMUS                               Page 4 of 26
                 • January 8 or 10, 2013, 4RR:7; 5RR:4.

              These hearings were either reset at Mother’s request, see OA.22,

              or continued as a result of Mother and Father’s failure to respond

              to discovery requests relevant to whether they were in fact mar-

              ried. See 2RR:13–14; 6RR; OA.27:Ex.A; OA.34:1; OA.36.

       13.    On February, 10, 2012, Aunt and Uncle served Mother and Fa-

              ther with subpoenas duces tecum requiring them to appear with

              documentation to establish the existence of a marriage to Father.

              2RR:13; OA.27:Ex.A; RPI.App.6; 6RR:3-4. Mother failed to

              appear or produce any of the requested documentation. 2RR:13–

              14. Father produced one piece of paper. 6RR:3-4.

       14.    On May 2, 2013, Respondent’s predecessor held a hearing on

              Aunt and Uncle’s motion to compel discovery. OA.34. Mother

              did not appear. OA.34:1.

       15.    On October 1, 2013, Respondent’s predecessor held a hearing

              on Aunt and Uncle’s motion to continue the October 29, 2013

              hearing on Mother’s motion to transfer. 6RR. Mother’s attorney

              failed to appear. 6RR:5.




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page 5 of 26
       16.    On October 10, 2013, the Hunt County trial court signed an or-

              der finding that Father had failed to completely respond to Aunt

              and Uncle’s discovery requests and ordered that no hearing on

              Mother’s motion to transfer would be scheduled until after Father

              provided complete and sufficient answers to Aunt and Uncle’s

              discovery requests. OA.36. Mother has never challenged this or-

              der.

       17.    On September 15, 2014, rather than insisting her motion to

              transfer be heard, Mother filed a motion for mediation, which the

              trial court granted, ordering the parties to participate in mediation

              on December 15, 2014. OA.41, 42.

       18.    On March 3, 2015, Mother sent Aunt and Uncle a letter inform-

              ing them of a final hearing in the SAPCR set for April 30, 2015.

              OA.43. On April 15, 2015, Mother sent Aunt and Uncle a letter

              informing them of a hearing on her motion to transfer set for

              April 28, 2015—two days before the final hearing. OA.46.

       19.    On April 23, 2015, Respondent received a letter from the Jeffer-

              son County trial court advising him of the pending cause of ac-

              tion in Jefferson County. OA.49.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                 Page 6 of 26
       20.    On April 28, 2015, the final hearing was reset until May 29,

              2015 because Father had still not complied with the discovery or-

              ders (signed in October 2013). 7RR.

       21.    On May 29, 2015, Respondent held a hearing on Mother’s mo-

              tion to transfer. 1RR. In addition to the three exhibits entered by

              Aunt and Uncle, Respondent took judicial notice of its file and of

              the letter from the Jefferson County court regarding Mother’s pe-

              tition to dissolve her alleged informal marriage to Father.

              1RR:26–27. At the conclusion of the hearing, Respondent denied

              Mother’s motion to transfer venue. 1RR:24–25.

       22.    On June 16, 2015, Respondent signed an order denying Moth-

              er’s motion to transfer. App.1. This is the order that is the subject

              of Mother’s petition for writ of mandamus.

       23.    On July 15, 2015, Mother filed a motion to reconsider, to which

              she attached her Jefferson County petition for divorce. OA.57.

       24.    On September 8, 2015, Respondent conducting a hearing on

              Mother’s motion to reconsider, 2RR. At the hearing’s conclu-

              sion, Respondent stated:




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                 Page 7 of 26
                     I’m inclined to overrule the Motion for Reconsidera-
                     tion. I do feel like the law is written for a purpose,
                     and it can be perverted. And I think it would be per-
                     verted in this particular case if I grant the Motion for
                     Reconsideration and if I grant the Motion to Transfer.
                     [¶] However, I want to do some research [before I
                     rule.]…[T]he history of this case, the facts of this
                     case, and the alignment of the parties all lead me to
                     believe that there has been gamesmanship…I don’t
                     think the legislators ever considered the possibility
                     that someone would litigate a case almost to the end
                     and then say, [“]no, I changed my mind; I’m going to
                     go somewhere else[”]…I understand there may be
                     different reasons why [the hearing on Mother’s mo-
                     tion to transfer] didn’t get heard this time or that. But
                     some of the time, if not most of the time, it’s been
                     [Mother’s] decision not to do it. And then she’s come
                     this Court and said, [“]do this for me; set me a trial;
                     send me to mediation; let me try to resolve this case.
                     But if I don’t get it resolved, I’m going somewhere
                     else because I don’t like you, Judge.[”]…In no other
                     circumstance does the law allow you to avail yourself
                     of a Court, to rely on its jurisdiction, to order you to
                     do things that you’ve asked for, to avail yourself of
                     the powers of the Court and then come and say [the
                     Court had] no power and [it hasn’t] for four years….I
                     hope that no one has come and lied to the court or
                     misled the Court intentionally to get an ad-
                     vantage…But I do know that [Mother] has asked this
                     Court for relief and has received it since she said this
                     Court lacked jurisdiction to act.

              2RR:25–29.

       25.    On September 26, 2015, Respondent signed an order denying

              Mother’s motion to reconsider. App.3.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                  Page 8 of 26
B.     The divorce—Jefferson County.

       1.     On August 2, 2011, Mother filed a petition for divorce in Jeffer-

              son County alleging an informal marriage between herself and

              Father. OA.12. In her petition, Mother identified Aunt and Uncle

              as persons entitled to service but did not identify them as conser-

              vators of the Child. OA.12:2. Additionally, she failed to identify

              the November 30, 2010 Hunt County final order or the June 2,

              2011 Hunt County temporary order in her petition for divorce and

              instead falsely stated that the Child was “not under the continuing

              jurisdiction of any other court,” and “[t]here are no court-ordered

              conservatorships, court-ordered guardianships, or other court-

              ordered relationships affecting the [Child].” OA.12:2.

       2.     On May 7, 2015, almost four years later, Mother and Father filed

              in Jefferson County an agreed motion for partial summary judg-

              ment, asking the Jefferson County trial court to find an informal

              marriage between them as a matter of law. OA.54; 1RR:18–19.

       3.     On May 19, 2015, Aunt and Uncle filed in Jefferson County a

              motion to continue the hearing on Mother’s and Father’s motion

              for partial summary judgment. OA.55; 1RR:20. Aunt and Uncle


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                               Page 9 of 26
              noted that they had not yet been properly served as necessary par-

              ties to Mother’s divorce and had not received notice of the sum-

              mary judgment hearing as required by Texas Rule of Civil Proce-

              dure 166a(c). OA.55; 1RR:20.

       4.     On May 27, 2015, Aunt and Uncle were served for the first time

              with Mother’s petition for divorce. RPI.App.7; 1RR:22.

                                     II.
                             SUMMARY OF ARGUMENT

       The mandatory transfer provisions of the Texas Family Code were not

meant as a tool to manipulate venue and to play courts off one against the

other through the use of a petition for divorce. In order to establish grounds

for a transfer pursuant to Texas Family Code Section 155.201(a), a party

must show that (1) the child is the biological child of both parties to the di-

vorce; and (2) a marriage between the parents subject to dissolution exists.

Because Mother failed to put forth any evidence of a marriage between her-

self and Father and because Mother appears to have pursued a “divorce” and

transfer of the SAPCR to Jefferson County only after she received an unfa-

vorable ruling in Hunt County, Respondent did not abuse his discretion in

denying her motion to transfer.



RESPONSE TO PETITION FOR WRIT OF MANDAMUS                             Page 10 of 26
       Moreover, transferring the proceedings away from the county where

the Child has lived for the last five years would not be in the Child’s best in-

terest.

                                            III.
                                       ARGUMENT

A.     RESPONSE TO ISSUE

       Respondent did not abuse his discretion in denying Mother’s mo-
       tion to transfer the SAPCR from Hunt County to Jefferson Coun-
       ty.

       1.     Mother was not entitled to a mandatory transfer of continu-
              ing exclusive jurisdiction from Hunt County to Jefferson
              County.

              a.    Establishing the existence of a valid marriage to be dis-
                    solved is a condition precedent to a mandatory transfer
                    under Texas Family Code Section 155.201(a).

       Mother alleges that she is entitled to a mandatory transfer of the

SAPCR from Hunt County to Jefferson County pursuant to Texas Family

Code Section 155.201(a). Pet.:22–24.2 Texas Family Code Section 155.201

provides in pertinent part:

       (a)    On the filing of a motion showing that a suit for dissolution
              of the marriage of the child’s parents has been filed in an-
              other court and requesting a transfer to that court, the court

2
 Mother’s Petition for Writ of Mandamus shall be referred to as Pet. and will be cited by page
number where appropriate. Pet.:__.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                         Page 11 of 26
               having continuing, exclusive jurisdiction of a suit affecting
               the parent-child relationship shall, within the time required
               by Section 155.204, transfer the proceedings to the court in
               which the dissolution of the marriage is pending. The mo-
               tion must comply with the requirements of Section
               155.204(a).

       (b)     If a suit to modify or a motion to enforce an order is filed in
               the court having continuing, exclusive jurisdiction of a suit,
               on the timely motion of a party the court shall, within the
               time required by Section 155. 204, transfer the proceeding
               to another county in this state if the child has resided in the
               other county for six months or longer.

Tex. Fam. Code § 155.201. While there is no allegation that subsection (b)

would be applicable under the facts of this case, case law interpreting both

subsections (a) and (b) are instructive, as they each provide that under certain

circumstances, the court “shall, within the time required by Section 155.204,

transfer the proceedings” to the appropriate court. See Tex. Fam. Code §

155.201(a)–(b). 3 Mother claims that because she has filed for dissolution of

her alleged informal marriage to Father, Respondent lacked discretion to de-

ny her motion to transfer, regardless of whether she can actually establish the

existence of an informal marriage. Pet.:22–24.



3
  Other than the different conditions precedent, the only notable difference between the two sec-
tions is the time requirement for filing the motion to transfer. Under Subsection (b), the motion
to transfer must be filed “at the time the initial pleadings are filed,” but under Subsection (a), the
motion to transfer may be filed “at any time.” See Tex. Fam. Code §§ 155.201, 155.204.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                                Page 12 of 26
       Contrary to Mother’s assertions, a motion to transfer pursuant to Texas

Family Code Section 155.201 does not automatically require a court to grant

such a motion. See Tex. Fam. Code §§ 155.201, 155.204. If a party contest-

ing the motion to transfer files a controverting affidavit, a hearing must be

held to determine whether grounds exist to support a transfer. See Tex. Fam.

Code § 155.204(d), (g); cf. In re Hancock, No. 13-09-00123-CV, 2009 WL

1089481, at *2 (Tex. App.—Corpus Christi 2009, no pet.) (no hearing re-

quired when no controverting affidavit filed). Here, Mother filed a motion to

transfer, and within the time requirement of Texas Family Code Section

155.204, Aunt and Uncle filed objections to Mother’s motion to transfer, to

which was attached Aunt’s controverting affidavit. OA.15–16; see Tex. Fam.

Code 155.204(d). Thus, Respondent was only required to transfer the pro-

ceeding after finding grounds for such a transfer existed. See Tex. Fam. Code

§ 155.204(g); see In re Powell, 79 S.W.3d 814, 816 (Tex. App.—Fort Worth

2002, orig. proceeding) (trial court had no discretion to transfer under Tex.

Fam. Code § 155.201(b) if child resided in different county six months or

more).




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                           Page 13 of 26
       Mother argues that because Aunt and Uncle challenged only the validi-

ty of Mother and Father’s alleged marriage and not whether a divorce petition

was filed, Aunt and Uncle did not properly contest whether Mother was enti-

tled to a transfer. Pet.:26. However, a trial court has a duty to transfer a

SAPCR only after a proper showing that a divorce is pending in another

court. See In re M.A.S., 246 S.W.3d 182, 184 (Tex. App.—San Antonio 2007,

no pet.); Neal v. Avey, 853 S.W.2d 707, 709 (Tex. App.—Houston [14th

Dist.] 1993, writ denied); Yates v. Gaithier, 725 S.W.2d 529, 531 (Tex.

App.—Dallas 1987, no writ). The mandatory duty to transfer a case pursuant

to Texas Family Code Section 155.201(a) is triggered only after factual find-

ings that:

   • the child is the biological child of both parties to the divorce; and

   • a marriage between the parents subject to dissolution exists.

M.A.S., 246 S.W.3d at 184. By its terms, the statute requires a certain factual

showing before the mandatory duty to transfer is triggered. Id.

       Here, there is no dispute that Mother and Father are the biological par-

ents of the Child. However, other than her bare, self-serving assertions,

Mother provided no evidence to Respondent that an informal marriage sub-




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page 14 of 26
ject to dissolution exists between herself and Father.4 Without sufficient

grounds to justify a transfer, Respondent did not abuse his discretion in deny-

ing Mother’s request. See Tex. Fam. Code § 155.204(g); see Powell, 79

S.W.3d at 816. Accordingly, this Court should deny Mother mandamus relief.

                 b.      Transferring the SAPCR from Hunt County to Jeffer-
                         son County would not be in the Child’s best interest.

          The policy reason behind uniting a SAPCR and divorce proceeding is

to promote judicial economy and prevent re-litigation of previously litigated

issues. Fite v. Nelson, 869 S.W.2d 603, 605 (Tex. App.—Houston [14th

Dist.] 1994, no writ) (addressing former Tex. Fam. Code § 11.06(c) 5, subse-

quently recodified as Tex. Fam. Code § 155.201(a)). The legislative scheme

of the Texas Family Code’s treatment of continuing jurisdiction and parent-

child matters creates a system that avoids forum shopping, races to the court-

house, child snatching, and the harassment of conservators by another con-

4
  Although Mother was asked via subpoena duces tecum to appear and produce documents to
support her claim of marriage (i.e., marriage license, declarations and registrations of informal
marriages, and diaries, notes, etc.), Mother failed to appear or produce any requested documenta-
tion. RPI.App.6; 2RR:13–14; 6RR:3-4.
5
    Former Texas Family Code Section 11.06(c) provided:
      On a showing that a suit for dissolution of the marriage of the child’s parents has been
      filed in another court, the court having continuing jurisdiction of a suit affecting the par-
      ent-child relationship shall transfer the proceedings to the court where the dissolution of
      the marriage is pending.
    Tex. Fam. Code § 11.06(c) (Repealed by Acts 1995, 74th Leg., ch. 20, § 2, eff. April 20,
    1995).


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                                 Page 15 of 26
servator filing suits in random courts. Trader v. Dear, 565 S.W.2d 233, 235

(Tex. 1978) (orig. proceeding). “The best interest of the child shall always be

the primary consideration of the court in determining the issues of conserva-

torship and possession of and access to the child.” Tex. Fam. Code § 153.002

(emphasis added). “[I]n general, the county of the child’s residence is in the

best position to determine the ‘best interests’ of the child.” In re Cooper, 320

S.W.3d 905, 911 (Tex. App.—Texarkana 2010, orig. proceeding).

       Here, unlike in typical divorce suits, Mother and Father do not have

primary possession of the Child and neither of them reside with the Child.

OA.1; RPI.App.5. In fact, they only have limited, supervised access to the

Child in Hunt County. RPI.App.5:2–3. Mother did not claim an informal

marriage to Father until almost five months after she filed her SAPCR—

notably two months after temporary orders were issued limiting her to super-

vised visitation with the Child. OA.2, 12; RPI.App.5:2–3.

       While in typical situations, uniting a divorce and SAPCR would be in a

child’s best interest, here, the opposite is true. At the time Mother filed her

SAPCR, the Child had already lived with Aunt and Uncle in Hunt County for

over a year and has now resided with Aunt and Uncle for over five years.

RPI.App.1:5–8; OA.2. Aunt and Uncle have established their ability to pro-


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                             Page 16 of 26
vide the Child with a stable and loving home and to provide for the emotional

and physical needs of the Child. RPI.App.1:5–8. Mother, on the other hand,

after kidnapping the Child, has been ordered to only see the Child under su-

pervised conditions in Hunt County. RPI.App.1:5–8; RPI.App.5:2–3. All

the evidence and witnesses most relevant to a conservatorship determination

for the Child are located in Hunt County. See Cooper, 320 S.W.3d at 911.

Contrarily, the Child has no ties to Jefferson County other than Mother’s di-

vorce proceeding involving an alleged informal marriage. 6 See OA.12. Moth-

er has presented no evidence that hearing the SAPCR in Jefferson County

would be in the Child’s best interest. Therefore, because the Child has lived

with Aunt and Uncle in Hunt County since August 12, 2010, Hunt County is

in the best position to determine the best interests of the Child. See Cooper,

320 S.W.3d at 911; RPI.App.1:5–8.




6
  Mother also appears to have limited ties to Jefferson County. On May 12, 2011, Father filed a
petition for bill of review, in which he alleged Mother lived in Hunt County, where she had been
exercising her supervised visitation with the Child. OA.6:1. Less than 90 days later, on August 2,
2011, Mother filed in Jefferson County her petition for dissolution of an alleged informal mar-
riage claiming to have been a resident of that county for at least 90 days. OA.12.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                                             Page 17 of 26
              c.     Mandatory transfer provisions of the Family Code were
                     not meant as a tool to manipulate venue and to play
                     courts off one against the other through the use of a pe-
                     tition for divorce.

       The mandatory transfer provisions of the Texas Family Code should

not be used to manipulate venue to begin a SAPCR anew in an effort to avoid

an undesirable final order. In re R.E.A., No. 13–10–00557–CV, 2011 WL

3557427, at *1 (Tex. App.—Corpus Christi 2011, no pet.) (mem. op.);

M.A.S., 246 S.W.3d at 184; Garza v. Texas Dept. of Human Services, 757

S.W.2d 44, 45 (Tex. App.—San Antonio 1988, writ denied).

       In Garza, the State sought to terminate the mother’s parental rights to

four of her five children. 757 S.W.2d at 45. During a hearing, both the mother

and her husband admitted that they were not actively seeking a divorce. Id. at

47. However, after the case had been pending for more than two-and-a-half

years, within minutes of the trial beginning, the mother filed a petition for di-

vorce in a different county. Id. The appellate court stated that the sole effect

of the newly-filed divorce petition was to delay adjudication of the termina-

tion proceeding. Id. The court held that this manipulation could not have been

the intent of the drafters of the Texas Family Code. Id. “To accept [the moth-

er’s] argument under these facts…would be to acquiesce in gross abuse of the



RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page 18 of 26
judicial system, with incessant delay in a necessary by-product, and to invite

forum-shopping by means of manipulative delays.” Id. at 48.

       In M.A.S., the mother gave a third party custody of the child shortly af-

ter the child’s birth. 246 S.W.3d at 182. The child’s father was not a party to

that suit, which was in Bexar County. Id. at 183. About six months later, the

father filed a SAPCR in Reeves County seeking custody of the child. Id. The

father also filed in Bexar County a motion to transfer continuing exclusive

jurisdiction from Bexar County to Reeves County, but he did not allege that

he and the mother were married. Id. Three days before trial in Bexar County,

the father filed a petition for divorce in Reeves County. Id. The father noti-

fied the Bexar County trial court of the pending divorce, but the Bexar Coun-

ty court declined to transfer the case. Id.

       The trial court concluded that the divorce petition was “a sham to

wrongfully divest [the Bexar County] court of jurisdiction,” and evidence

supported that conclusion. Id. The appellate court affirmed the trial court’s

refusal to transfer the case, and noted that “mandatory transfer provisions of

the Family Code were not meant as a tool to manipulate venue and to play

courts off one against the other through the use of a petition for divorce.” Id.

(internal quotes omitted).


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                             Page 19 of 26
       In R.E.A., the father filed a SAPCR seeking to modify a prior custody

order. 2011 WL 3557427, at *1. Two days before trial, after the suit had been

pending for about two years, and despite the fact that the mother and the fa-

ther had not cohabitated in at least three years, the mother filed for divorce in

another county alleging an informal marriage to the father. Id. The appellate

court, relying on M.A.S., held that the trial court was justified in finding that

the divorce was only filed to manipulate the Family Code’s mandatory trans-

fer provisions and properly denied the mother’s request to transfer the case to

a different county. Id. at *3.

       Mother argues that the “manipulation findings” in M.A.S. and R.E.A.

were based solely on timing issues. Pet.:37–38. Mother reads these cases too

narrowly.

       In both M.A.S. and R.E.A., the facts before the court indicated that a

transfer was being sought to avoid a final order from one court and to instead

begin the proceedings anew in a different county. M.A.S., 246 S.W.3d at 184;

R.E.A., 2011 WL 3557427, at *3. Similarly, here, Mother did not allege an

informal marriage or seek to transfer the proceedings until after the tempo-

rary orders were signed restricting her to limited visitation with the Child su-

pervised by an off-duty Hunt County police officer. OA.12; RPI.App.5:2–3.


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page 20 of 26
Sufficient evidence supported Respondent’s conclusion that Mother’s motion

to transfer was a form of gamesmanship and was filed with the intent to ma-

nipulate the Family Code’s mandatory transfer provisions. Here, Mother:

          • kidnapped the child in disregard of the trial court’s possession

              order, OA.1; RPI.App.1;

          • relocated to Jefferson County less than 90 days before filing her

              suit for dissolution of her alleged informal marriage, see OA.6:1;

              OA.12;

          • failed to identify the Hunt County conservatorship orders in her

              Jefferson County petition for dissolution of her alleged informal

              marriage, OA.12;

          • failed to respond at all to Aunt and Uncle’s discovery requests for

              well over a year; 2RR:13; 1RREx:2–19:REx2–3; and

          • failed to serve Aunt and Uncle until May 27, 2015, almost four

              years after filing for suit for dissolution of her alleged informal

              marriage (August 2, 2011) and after filing her motion for transfer

              (August 15, 2011). RPI.App.7.




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page 21 of 26
        Thus, Respondent did not abuse his discretion in denying Mother’s mo-

tion to transfer. Accordingly, this Court should deny Mother’s mandamus re-

lief.

              d.     Here, conservatorship of the Child is not an integral
                     part of Mother and Father’s alleged informal marital
                     relationship.

        Relying on In re Marriage of Allen, Mother argues that it is undesirable

to permit “different courts to control the various segments of the marital rela-

tionship…” Pet.24 (quoting Allen, 593 S.W.2d 133, 136 (Tex. Civ. App.—

Amarillo 1979, no writ) (emphasis added). However, as discussed above,

Mother and Father—the parties to the divorce involving an alleged informal

marriage—did not have managing conservatorship of the Child, so the con-

servatorship of the Child was not necessarily an integral segment of their al-

leged informal marital relationship. OA.1.

        2.    Mother failed to diligently seek a hearing on her motion to
              transfer.

        Mother argues that actions outside her control prevented her ability to

have a hearing on her motion to transfer. Pet.:31–32. However, multiple hear-

ings were set on her motion to transfer, and she failed to insist that her mo-

tion be heard during the almost four years that her dissolution of the alleged



RESPONSE TO PETITION FOR WRIT OF MANDAMUS                             Page 22 of 26
informal marriage and her motion to transfer were pending. Mother never

challenged the trial court’s order that there would be no hearing on her mo-

tion to transfer until after Father complied with the discovery order. See

OA.36. To the contrary, rather than challenge that order or properly serve

Aunt and Uncle with her petition to dissolve her alleged informal marriage,

Mother sought affirmative action from Respondent and his predecessor. See

OA.41, 43. Mother requested mediation and a final hearing without reassert-

ing a request for a hearing on her motion to transfer or pursuing her Jefferson

County dissolution proceeding. See OA.41, 43. Not until the month of final

trial did Mother finally set her motion to transfer for two days before the final

hearing having yet to serve Aunt and Uncle with her Jefferson County disso-

lution proceeding. OA.43, 46. Thus, Mother’s arguments that Respondent did

not timely hear her motion are disingenuous.

       Mother argues that because Texas Family Code Section 155.204(a)

permits a request for a request for a transfer “at any time,” a party cannot

waive the right to transfer. Pet.:29–30. Mother appears to contend that she

could fully participate in the proceedings and then be entitled to transfer the

day before final trial despite her apparent prior intentions to fully litigate the

suit in the initial court. Pet:30. However, as discussed above, the mandatory


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                               Page 23 of 26
transfer provisions of the Family Code should not be used to manipulate the

court’s authority in this manner. R.E.A., 2011 WL 3557427, at *1; M.A.S.,

246 S.W.3d at 184; Garza, 757 S.W.2d at 45.

       Mother also argues that the trial court improperly imposed a condition

precedent on her hearing on her motion to transfer venue by requiring Father

to first comply with the court’s discovery order. Pet.:31. However, Mother

has not challenged the discovery order, which was signed more than two

years before she sought mandamus relief. See OA.36. Mother also ignores

the relevance of the sought discovery to her motion to transfer. 2RR:13;

OA.27:Ex.A; RPI.App.6; 6RR:3-4.

       Thus, because Mother failed to diligently seek a hearing on her motion

to transfer and instead sought to manipulate venue and to play courts off one

against the other through the use of a petition for divorce, Respondent did not

abuse his discretion in denying Mother’s motion to transfer. Accordingly, this

Court should deny Mother mandamus relief.

                                       PRAYER

       WHEREFORE,      PREMISES CONSIDERED,     for all the foregoing reasons al-

leged and briefed herein, Real Parties in Interest Jennifer Nowell and John

Nowell pray that this Court deny Tara Brook Tyndell’s Petition for Writ of


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                              Page 24 of 26
Mandamus. Real Parties in Interest Jennifer Nowell and John Nowell further

request this Court grant them such other relief, both general and special, at

law or in equity, to which they may show themselves to be justly entitled.

                                        Respectfully submitted,

                                        GEORGANNA L. SIMPSON, P.C.
                                        1349 Empire Central Drive
                                        Woodview Tower, Ste. 600
                                        Dallas, Texas 75247
                                        Phone: 214-905-3739 • Fax: 214-905-3799
                                        georganna@glsimpsonpc.com

                                        /s/ Georganna L. Simpson
                                        GEORGANNA L. SIMPSON
                                        Texas Bar Number 18400965
                                        Attorney for Real Parties in Interest,
                                        Jennifer and John Nowell


          CERTIFICATION OF FACTS AND VERIFICATION OF RECORD

       Pursuant to Texas Rule of Appellate Procedure 52.3(j), I certify that I
have thoroughly reviewed the Court’s file in this matter. I have personal
knowledge of the facts stated herein and such matters are true and correct.
Additionally, I have personal knowledge that the items in the appendix and
record are true and correct copies of documents material to Real Parties in In-
terest’s claims and are either pleadings that are on file in the underlying suit,
hearing transcripts and exhibits, or orders signed by the trial court in the un-
derlying suit in this cause No. 76,122 in the 196th Judicial District Court of
Hunt County, Texas.
                                               /s/ Georganna   L. Simpson
                                               Georganna L. Simpson


RESPONSE TO PETITION FOR WRIT OF MANDAMUS                               Page 25 of 26
            CERTIFICATE OF COUNSEL REGARDING WORD COUNT

       Pursuant to Texas Rule of Appellate Procedure 9, I certify that the word
count in this Response to Petition for Writ of Mandamus, excluding the cap-
tion and introductory matters, signature, proof of service, certification, certif-
icate of compliance, and appendix, totals 5,249 words.

                                            /s/ Georganna L. Simpson
                                            Georganna L. Simpson


                             CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of Real Parties in Interest
Jennifer Nowell and John Nowell Response to Petition for Writ of Mandamus
has been served as follows:

Hon. J. Andrew Bench                                            Via E-Service
196th Judicial District Court                            jdeary@huntcounty.net
P.O. Box 1097
Greenville, Texas 75401-1097
Respondent

E. Alan Bennett                                                  Via E-Service
Sheehy, Lovelace & Mayfield, P.C.                          abennett@slmpc.com
510 N. Valley Mills Dr., Ste. 500
Waco, TX 75710
Relator Tara Brook Tyndell’s Attorney


                                            /s/ Georganna L. Simpson
                                            Georganna L. Simpson




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                               Page 26 of 26
                    REAL PARTIES IN INTEREST
              JOHN AND JENNIFER NOWELL’S APPENDIX


       In support of this Petition, Real Parties in Interest submit this

Appendix, in compliance with Rule 53.3(j) of the Texas Rules of Appellate

Procedure:

Tab 1:        Motion for Enforcement of Possession or Access with
              Temporary Restraining Order and Extraordinary Relief
              (03/28/11)

Tab 2:        Request for Warrant to Take Physical Custody of Child
              (03/29/11)

Tab 3:        Order for Issuance of Warrant to Take Physical Custody of
              Child (03/29/11)

Tab 4:        Motion to Deny Relief in Suit to Modify Parent-Child
              Relationship, Motion to Dismiss, and in the Alternative,
              Motion to Abate Proceedings (06/01/11)

Tab 5:        Bridge Temporary Orders (06/02/11)

Tab 6:        Subpoena Duces Tecum to Mother (02/10/12)

Tab 7:        Citation serving Mother’s Original Petition for Divorce on
              Aunt and Uncle (05/27/15)




RESPONSE TO PETITION FOR WRIT OF MANDAMUS                         APPENDIX
                                                           NO. 76,122

 IN THE INTEREST OF                                               §
                                                                  §
 K             T        W                                         §

 A CHILD
                                                                  §
                                                                  §
                                                                            -,
                                                                        HUNn::OUNTY, TE~

MOTION FOR ENFORCEMENT OF POSSESSION OR ACCESS WITH TEMPORARY
         RESTRAINING ORDER AND EXTRAORDINARY RELIEF


Parties

This Motion for Enforcement of Possession or Access is brought by JENNIFER NOWELL and
JOHN NOWELL, Movant, Joint Managing Conservators of
The last three numbers of JENNIFER NOWELL's driver's license number are             The last
three numbers of JENNIFER NOWELL's Social Security number are                 The last three
numbers of JOHN NOWELL's driver's license number are              The last three numbers of
JOHN NOWELL's Social Security number are

       I.     Discovery in this case is intended to be conducted under level 2 of rule 190 of the
Texas Rules of Civil Procedure.

          2.        Movants are joint managing conservators.



          3.        The child the subject of this suit is:

                    Name:
                    Sex:                 Male
                    Birth date:

       4.           This Court has continuing, exclusive jurisdiction of this case as a result of prior
proceedings.




Motion for Enforcement of Possession and Access and Order to Appear                            Page 1 of 4
Service

         5.         The parties entitled to notice are as follows:

                    a.        Respondent,          TAHA         BROOK   TYNDELL,   who   is   a possessory
                              conservator.

Process should be served.

Prior Order

       6.     On November 30, 2010 this COlU1 signed Agreed Order in Suit Affecting the
Parent-Child Relationship tllat states in relevant part as follows:

                    a.        "Possession and Access
                              1. Possession Order
                              Possession and access by the possessory conservator shall be as agreed
                              between the parties. "

Movants were the Petitioners and Respondent was the respondent in the prior proceedings.

Contempt

          7.        Respondent has failed to comply with the order described above as follows:

                    Respondent kidnapped the child on March 28, 2011 at 1:11 p.m. from the
                    McDonald's located in Greenville, Hunt COlUlty, Texas as detailed in the
                    Aftidavit's of Jennifer Nowell and John Nowell attached as Exhibits "1" and "2."

        8.      Movants request that Respondent be held in contempt, jailed, and fined for each
violation alleged above.

         9.     Movants believe, based on the conduct of Respondent, that Respondent will
continue to fail to comply with the order. Movants request that Respondent be held in contempt,
jailed, and fined for each failure to comply with the order of the Court from the datc of this filing
to the date of the hearing on this motion.

       10.     Movants request that Respondent be confined in the county jail for eighteen
months or until Respondent complies with the order of the Court.



Molion for Enforcement of Possession and ACCess and Order to Appear                                 Page 2 of4
        II.    Movants request that Respondent be placed on conununity supervision for ten
years on release from jailor suspension of connnitment.

        12.    On two or more occasions, Respondent has failed to comply with the order of the
Court by failing to slllTender the child to JENNIFER NOWELL and JOHN NOWELL as ordered.
Movants request that the Court order a bond or security for compliance with the Court's order
granting possession of or access to the child.

       13.    Movants request that tile Court order additional periods of possession for Movants
to compensate for those periods denied by Respondent.

       14.     Movants request that, if the Court finds iliat any part of ilie order sought to be
enforced is not specific enough to be enforced by contempt, the Court enter a clarifYing order
more clearly specifYing the duties imposed on Respondent and giving Respondent a reasonable
time wiiliin which to comply.

Request for Extraordinary Relief
As the basis for the extraordinary relief requested below, Petitioners would show that prior to the
filing of this action that Respondent has engaged in the conduct set forth in the Affidavits
attached to this pleading. Based upon the Affidavit's attached hereto and incorporated herein by
reference as through fully set forth, Petitioners request the Court to grant the following relief:

               a. Issue an ORDER attaching the body of ilie child
                  and ORDERING that such child be delivered to Petitioners pending hearing ofthe
                  lvIotion for Enforcement in this cause; and

               b. Issue an ORDER excluding Respondent from possession of or access to the child,
                                              pending hearing of the Motion for Enforcement in
                  this cause.

Attorney's Fees
        15.      It was necessary to secure the services of Shannon M. Estrada, a licensed attorney,
to enforce and protect the rights of JENNIFER NOWELL and JOHN NOWELL and the child the
subject of iliis suit. Respondent should be ordered to pay reasonable attorney's fees, expenses,
and costs, and a judgment should be rendered in favor of ilie attorney and against Respondent
and be ordered paid directly to the undersigned attorney, who may enforce the judgment in the
attorney's OVl'I1 name. Enforcement of tile order is necessary to ensure the child's physical or
emotional health or welfare. The attorney's fees and costs should be enforced by any means
available for ilie enforcement of child support including contempt but not including income
withholding. Movants request postjudgment interest as allowed by law.

Motion for Enforcement of Possession and Access and Order to Appear                         Page 3 of4
Movants pray that Respondent be held in contempt and punished as requested, that the Court
order community supervision, that the Court order a bond or security, that the Court clarify any
part of its prior order found not to be specific enough to be enforced by contempt, for attomey's
fees, expenses, costs, and interest, anet for all further relief authorized by law.


                                                              Respectfully submitted,

                                                              LAW OFFICE OF SHANNON M. ESTRADA
                                                              2507 Washington Street
                                                              P.O. Box 765
                                                              Greenville, Texas 75401
                                                              Tel: I 903.455.1876
                                                              Fax: 903.455.1710




                                                                      Shannon M. Estrada
                                                                      State Bar No. 24027370
                                                                      Attomey for Movants




Motion for Enforcement of Possession and Access and Order to Appear                            Page 4 of 4
                                           NO. 76,122

IN THE INTEREST O:F                             §                IN THE DISTRICT COURT
                                                §
K        T        W                             §               196TH JUDICIAL DISTRICT
                                                §
A CHILD                                         §                   HUNT COUNTY, TEXAS



                           AFFIDAVIT OF JENNIFER NOWELL

             JENNIFER NOWELL appeared in person before me today and stated under oath:

    "My name is JENNIFER NOWELL. I am above the age of eighteen years, and I am fully
    competent to make this affidavit. The facts stated in this affidavit are within my personal
    knowledge and are true and correct.

    I am the Co-Petitioner in this case and a joint managing conservator or
                 with my husband, John Nowell.           is my nephew. On November 30,
    2010, an Agreed Order in Suit Affecting the Parent-Child Relationship was entered with
    this Court wherein my husband, John, and I were named joint managing conservators of
    the        and his biological mother Tara Brook Tyndell was named as possessory
    conservator. Ms. Tyndell has the right to possession and access to           as at the
    discretion of me and my husband for all times as agreed between the parties.

    John and I have had physical possession of           age 2, since August 12, 2010. The
    Agreed Order entered in November was in              best interest providing him a stable,
    safe and loving home.

    At approximately 1: 11 p.m., Tara Tyndall and her boyfriend, Eddie Augusting, came to
    the McDonald's in Greenville, Texas as we had scheduled a visitation for Tara and
    from Ip.m.-2 p.m. Shortly after their arrival, the sirel1'alarm sounded in the play-area.
    Eddie had exited the emergency door. I then saw Tara running out of the other door with
            She then jumped into the passenger seat with           and Eddie drove off. We
    called 911 at 1: 12 p.m., gave the vehicle description and license plate number to the
    dispatcher (green Chrysler minivan,            (TX), and they were heading East on 1-30.

    It took the police 30 minutes to get to the McDonalds. I provided the officer with Tara's
    mobile phone numbers, residence in Port Neches, Texas and the officer reviewed the
    conservatorship Order. The officer said he will issue a broadcast for this region and the
    Beaumont region, but will need a Court Order to obtain physical custody of the child.
Tara did not have permission to remove           from McDonalds or from our possession.

Further affiant sayeth not."



                                                      IFE   NOWELL


SIGNED lmder oath before me on
                                        M()Jch    ~g, ~o(1




                    JAMIE THOMAS
                MY COMMISSION EXPIRES
                    March 27, 2012
                                        I
                                           NO. 76,122

IN THE INTEREST OF                              §                IN THE DISTRICT COURT
                                                §
K        T        W                             §               196TH .nTDICIAL DISTRICT
                                                §
A CHILD                                         §                   HUNT COUNTY, TEXAS



                              AFFIDAVIT OF JOHN NOWELL

             JOHN NOWELL appeared in person before me today and stated tmder oath:

    "My name is JOHN NOWELL. I anl above the age of eighteen years, and I am fully
    competent to make this affidavit. The facts stated in this affidavit are within my personal
    knowledge and are true and correct.

    I am the Co-Petitioner in this case and a joint managing conservator or           Titus
    Williamson with my wife, Jennifer NowelL              is my nephew. On November 30,
    2010, an Agreed Order in Suit Affecting the Parent-Child Relationship was entered with
    this Court wherein my wife, Jellllifer, and I were named joint managing conservators of
    the        and his biological mother Tara Brook Tyndell was named as possessory
    conservator. Ms. Tyndell has the right to possession and access to            as at the
    discretion of me and my wife for all times as agreed between the parties.

    Jennifer and I have had physical possession of        age 2, since August 12,2010. The
    Agreed Order entered in November was in              best interest providing him a stable,
    safe and loving home.

    At approximately 1:11 p.m., Tara Tyndall and her boyfriend, Eddie Augusting, came to
    the McDonald's in Greenville, Texas as we had scheduled a visitation for Tara and
    from lp.m.-2 p.m. Shortly after their arrival, the sirenlalanll sounded in the play-area.
    Eddie had exited the emergency door. I then saw Tara rumling out of the other door with
           She then jumped into the passenger seat with         and Eddie drove off. I called
    911 at 1: 12 p.m., gave the vehicle description and license plate number to the dispatcher
    (green Chrysler minivan,             (TX), and they were heading East on 1-30.

    It took the police 30 minutes to get to the McDonalds. Jelmifer provided the officer with
    Tara's mobile phone numbers, residence in Port Neches, Texas and the officer reviewed
    the conservatorship Order. The officer saidhe will issue a broadcast for this region and
    the Beaumont region, but will need a Court Order to obtain physical custody of the child.
Tara did not have permission to remove           from McDonalds or from our possession.

Further affiant sayeth not"




SIGNED under oath before me on         !l114:.rc.h ~ K,dO / 1


                   JAMIE THOMAS                        Public, State of Texas
               MY COMMISSION EXPIRES
                   March 27. 2012
/

                                                 NO. 76,122

    IN THE INTEREST OF                                §
                                                      §
     K         T        W                             §
                                                      §
     A CHILD                                          §


          REOUEST FOR WARRANT TO TAKE PHYSICAL CUSTODY OF CHILD


           I.      Petitioners, JENNIFER NOWELL and JOHN NOWELL, request a warrant to
    take physical custody of                           On March 28, 2011, Petitioners filed
    Motion for Enforcement of Possession and Access with Temporary Restraining Order and
    Extraordinary Relief in this Court.

           2.    The child currently is in the possession of Respondent, TARA BROOK
    TYNDELL. The present physical address of Respondent is unknown. Respondent should be
    served wherever found. The child's present physical address is unknown.

           3.     An Agreed Order in Suit Affecting the Parent-Child Relationship was entered in
          th
    the 196 District Court on November 30, 2010.

           4.     The Order for which enforcement is sought has not been vacated, stayed, or
    modified by a court whose decision must be enforced under chapter 152 of the Texas Family
    Code.

           5.         The Court should issue a warrant to take physical custody of
                       because:

           a.                                              was abducted by TARA TYNDELL, his
                   biological mother, at approximately 1:10 p.m. on March 28, 2011 at the McDonald's
                   located in Greenville, Texas where he was scheduled for a I-hour of supervised
                   visitation. TARA TYNDELL and her boyfriend, Eddie Augusting, fled McDonald's
                   in his vehicle. Petitioner's called 911 and Greenville Police Department responded
                   to the scene. Petitioners are joint managing conservators of the child. Respondent
                   is a possessory conservator with the right to possession of the child as agreed by the
                   joint managing conservators. The Petitioners did not consent for the child to be
                   removed from their possession. Respondent also has a history of drug abuse.

            6.      Based on these facts, Petitioners believe that the child is imminently likely to
    suffer serious physical harm and to be removed from Texas.
        7.      Petitioners ask the Court to direct law enforcement officers to take physical
custody of the child immediately. Petitioner further asks the Court to authorize law enforcement
officials to enter private property to take physical custody of the child because a less intrusive
remedy would not be effective. Petitioner further asks the Court to authorize law enforcement
officials to make a forcible entry at any hour.

       8.      Petitioners ask the Court to provide for the placement of the child with Petitioners
pending final relief. Petitioners further ask the Court to impose any necessary conditions on the
placement of the child to ensure the appearance of the child.

        9.      It was necessary to secure the services of Shannon M. Estrada, a licensed attorney,
to protect the lights of JENNIFER NOWELL and JOHN NOWELL and the child the subject of
this suit. Respondent should be ordered to pay reasonable attorney's fees and expenses, and a
judgment should be rendered in favor of the attorney and against Respondent and be ordered paid
directly to the undersigned attorney, who may enforce the judgment in the attorney's own name.
Respondent should be ordered to pay all other costs of this proceeding.

Petitioners pray that the Court grant this Request for Warrant to Take Physical Custody of Child,
for attorney's fees, expenses, and costs, and for all further relief authorized by law.


                                             Respectfully submitted,

                                             LAW OFFICE OF SHANNON M. ESTRADA
                                             2507 Washington Street
                                             P.O. Box 765
                                             Greenville, Texas 75401
                                             Tel: I 903.455.1876
                                             Fax: 903.455.1710




                                              BY:-:--1L~z-;--=.:.;;l---,--L-=--
                                                  Shannon M. Estrada
                                                  State Bar No. 24027370
                                                  Attorney for Petitioners
!
                                                  Verification

            The undersigned states under oath: "I have personal knowledge of the facts and
    allegations stated in paragraph 5.a., and they are true and correct."




                         JAMIElliOMAS        ~
                     MY COMMISSION EXPIRES   !-
                         Ma!t:h 27, 2012
                                              NO. 76,122

  IN T H E I N T E R E S T O F                     §     IN T H E D I S T R I C T C O U R T
                                                   §
  K       T        W                               §     196TH J U D I C I A L D I S T R I C T
                                                   §
  A CHILD                                          §     HUNT COUNTY, T E X A S

                          O R D E R FOR ISSUANCE O F WARRANT T O
                            TAKE PHYSICAL CUSTODY OF CHILD

        On March 29, 2011. Petitioners, JENNIFER N O W E L L and JOHN N O W E L L . presented
to this Court a verified request for a warrant to take physical custody of
              , a child.

         On the basis of the sworn statement in the petition and of the testimony ofPetitioner and
of the evidence and argument o f counsel, the Court finds it necessary and proper to issue a
warrant to take physical custody o f                                      immediately. The Court
finds the following facts form a justifiable basis on which this Court has concluded a likelihood
of imminent serious physical harm o f                                         or o f
                 S removal from Texas:                                      was abducted by TARA
TYNDELL, his biological mother, at approximately 1:10 p.m. on March 28 2011 at the       :


McDonald's located in Greenville, Texas where he was scheduled for a 1-hour o f supervised
visitation. TARA T Y N D E L L and her boyfriend, Eddie Augusting, fled McDonald's in his
vehicle. Petitioner's called 911 and Greenville Police Department responded to the scene.
Petitioners are joint managing conservators o f t h e child. Respondent is a possessory conservator
with the right to possession of the child as agreed by the joint managing conservators. The
Petitioners did not consent for the child to be removed from their possession. Respondent also
has a history of drug abuse.

       IT IS THEREFORE ORDERED that a Warrant to Take Physical Custody o f Child
immediately be issued commanding any law enforcement officer within Texas to take physical
custody immediately of                           , a child, and to place the child safely into
the possession of JENNIFER N O W E L L and JOHN N O W E L L at 9 Timberside Drive,
Greenville, Texas, pending final relief.

       The person with whom the child is placed is ORDERED to produce the child and
Respondent, T A R A BROOK T Y N D E L L , is ORDERED to appear before this Court in its
courtroom at 2507 Lee Street, Greenville, Hunt County, Texas on the next judicial day after this
warrant is executed, at which time and place a hearing shall be held to determine the right to
possession of the child.



Order for Issuance of Warrant to Take Physical Custody of Child                                  Page 1 of 2
        Based on the testimony heard by the Court that a less intrusive remedy would not be
effective. IT IS ORDERED that law enforcement officers executing this warrant may enter
private property to take physical custody of the child.

        Due to the exigent circumstances o f this case. IT IS ORDERED that law enforcement
officers mav make a forcible entry at any hour in order to execute litis warrant.

SIGNED on               2-f ^ / /



                                               JUDGE PRESIDING




Order for Issuance of Warrant to Take Physical Custody of Child                  Page 2 of 2
                                            NO. 76.122
                                                                                            ",

IN THE INTEREST OF                                §   IN THE DISTRICT CO;tJRT '/ -
                                                                    . ,
                                                  §                            <   ::   •




K       T       W                                 §   196TH JUDICIALDISTRICr
                                                                   ~ f      "
                                                  §
ACIDLD                                            §


        MOTION TO DENY RELIEF IN SUIT TO MODIFY PARENT-CHILD
       RELATIONSHIP, MOTION TO DISMISS, AND IN THE ALTERNATIVE,
                    MOTION TO ABATE PROCEEDINGS
       This Motion to Deny Reliefin Suit to ModifY Parent-Child Relationship, Motion to Dismiss
and In the Alternative, Motion to Abate Proceedings is brought by JENNIFER ELAINE NOWELL
and JOHN AUBRY NOWELL, Movants and Respondents to a Motion to ModifY initially filed by
Tara Brook Tyndell.
       JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL show in support:
        1.     The suit to modifY was filed to modifY the designation of the person having the
exclusive right to designate the primary residence of the child and was filed within one (1) year after
the date of the rendition and entry of the order to be modified. The order which Tara Brook Tyndell
seeks to modify was rendered on November 30, 2010,              Therefore, absent a sworn affidavit
establishing sufficient facts to satisfy Tara Brook Tyndell's statutory requirements pursuant to the
Texas Family Code, Tara Brook Tyndell's suit to modifY must be dismissed, or in the alternative
abated until November 10,2011 or until such time as Tara Brook Tyndell has filed sworn pleadings
sufficient to meet Tara Brook Tyndell's statutory requirements.
        2,      The petition does not contain any attachments or affidavits to provide the Court with
adequate facts to support (a) an allegation that the child's present environment may endanger his
physical health or significantly impair his emotional development; (b) the allegations that the person
who has the exclusive right to designate the primary residence of the child is seeking the
modification or consents to the modification and that the modification is in the best interest of the
child; or © the allegations that the person who has the exclusive right to designate the primary
residence of the child has voluntarily relinquished the primary care and possession ofthe child to
another person for at least six months and that the modification is in the best interest of the child,
        3.      JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL request that the
Court deny Petitioner's request to modifY the designation of the person having the exclusive right
to designate the primary residence of the child sought in the Petition to ModifY Parent-Child
Relationship and refuse to schedule a hearing on that issue. JENNIFER ELAINE NOWELL and


MOTION TO DENY RELIEF, DISMISS, ABATE                                                                 1
JOHN AUBRY NOWELL request attorney's fees, expenses, and costs.
       4.       JENNIFER ELAINE NOWELL andJOHN AUBRY NOWELL would also show
this Court that Section 156.102, Texas Family Code provides that if Tara Brook Tyndell intends to
prosecute her suit before November 10, 2011, then Tara Brook Tyndell must attach an affidavit
setting forth at least one of the above-enumerated factors in paragraph 2 above. A copy of Section
156.102, Texas Family Code is attached hereto as Exhibit "A" and incorporated herein the same as
if set forth verbatim.
        5.      JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL would further
show that Tara Brook Tyndell has failed to satisfy her statutory requirements to pursue a Motion to
Modify within one year from November 30, 20 10. Therefore, this Court is without authority to grant
any Temporary Orders in favor of Tara Brook l'yndell. Pleading in the alternative and without
waiving the foregoing, JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL would
show that Tara Brook Tyndell has further failed to set forth any factors whatsoever in her suit to
modify sufficient to meet her statutory burden of proof to change the designation of the persons who
have the right to establish the primary domicile of the child from JENNIFER ELAINE NOWELL
and JOHN AUBRY NOWELL to Tara Brook Tyndell as required by Section 156.006, Texas
Family Code, a copy of which is attached hereto as Exhibit "B" and incorporated herein the same
as if set forth verbatim.
        6.      JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL would show that
Tara Brook Tyndell' s motion to modi fy is a frivolously filed suit for modification in that Tara Brook
Tyndell knew or should have known that filing her suit to modify in an untimely marmer and against
the statutory requirements of the Texas Family Code is the very type of lawsuit which the law
abhors. JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL seek sanctions against
Tara Brook Tyndell pursuant to Section 156.005, Texas Family Code, a copy of which is attached
hereto as Exhibit "C".
        JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL pray the Courtgrantthis
motion.
        JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL pray for their attorneys'
fees and court costs.


                                         Respectfully submitted,

                                         The Law Office of Morgan & Gotcher


                                         By:"f~~
 MOTION TO DENY RELIEF, DISMISS, ABATE                                                                2
                                                   Holly H. Gotcher, P.e.
                                                   State Bar No. 08738100
                                                   2610 Stonewall Street
                                                   Greenville, Texas 75403-0556
                                                   Tel: (903) 455-3183
                                                   Fax: (903) 454·4654
                                                   ATTORNEY FOR MOVANTS

                                         Notice of Hearing           II   .HI
                                                               IO:{tJWI    1
                                                                               ,

       The above motion is set for hearing on June 2, 2011 aiJr.o'(j a.m. in the 196th Judicial District
Court, 2507 Lee Street, Hunt County Courthouse, Greenville, Texas 75401.
SIGNED on June 1, 2011.
                                                 ORIGINAL SIGNED BY
                                            STEPHEN R. TImE. JR. JUDGE
                                                Judge or Clerk
                                        Certificate of Service

       I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on June 1,2011.
                                                                                   -.::::--- ...
                                                ~~D-o~
                                                HollYRGOtcllei,P.C.
                                                Attorney for JENNIFER ELAINE NOWELL and
                                                JOHN AUBRY NOWELL




MOTION TO DENY RELIEF, DISMISS, ABATE                                                                  3
Exhibit "A"
                                                                FAMILY CODE-TITLES
                                                               CHAPTER f 56. MODIFICATION
                                                                    §§156.101 - 156.102



o pet.) (re-          home environment supply ground for redesignating
                                                                                *-----------------
                                                                                         History ofFam, Code §156,102: Acts 1995, 74th Leg_, ch. 20, §1, eff. Apr, 20,
                                                                                    1995.Arnended by Acts 2001, 77th Leg., th. 1289, §6, eff. SepL t, 2001; Acts 2003,
tl v. Camp-           managing conservators, [~I Similarly, a course of con-        78th Leg" th. 1036, §20, eft Sept 1.2003; Acts 2009, 81 ~t Leg., ch. 1113, §29 (efr.
iIIo 1972, no         duct pursued by the manager which hampers the                 Sept. 1,2009), ch. 727, §4 (err. Sept. 1,2009). Source: Fonner Pam, Code
                                                                                    ;14,08('), (,),
                      ward's opportunities to favorably associate with the               See also O'ConntJr':; Texas Family Lo.w ll(1ftd~ook (2010), "Affidavit
'ex.App,-EI           other parent may also suffice."                               supporting modification of primary conservalor within one year," th. 8-A,
                                                                                    §4.S.2, p. 841.
,t relocation,
                        FAM §156,10;2., MODIFICATION OF                                                             ANNOTATIONS
,lish a mate-           EXCLUSIVE RIGHT TO DETERMINE
es, Bulif the            PRIMARY RESIDENCE OF CHILD                                       In re C.S" 264 S'w,3d 864, 870 (Tex.App.-Waco
Ice, a finding            WITHIN ONE YEAR OF ORDER                                  2008, no pet.), " [Wle hold that a party is not entitled to
riate. Such a             (a) If a suit seeking to modify the designation of the    21 days' notice to respond to a dismissal motion under
we can glean          person having the exclusive right to designate Ihe pri-       §156.\o2(c). At 872: [B]ecause of the unique provi-
,h the court          mary residence of a child is filed not later than one year    sions of §156.l02(c), we hold that the rule regarding
 he quality of        after the earlier of the date of the rendition of the order   special exceptions does not apply. [~] This statute per-
al parent and         or the date of the signing of a mediated or collaborative     mits a denial of relief (or dismissal) without any ad-.
Iild's contacts       law settlement agreement on which the order is based,         vance notice to the litigants, solely from the trial court's
, and de facto;       the person filing the suit shall execute and attach an af-    review of the pleadings,"
 non-custodial        fidavit as provided by Subsection (b).                              In re A,S,M" 172 S.W,3d 710, 716 (Tex.App.-Fort
 s tr '''e chil-                                                                    Worth 2005, no pet.). "[Wle hold that a suit seeking to
                         (b) The affidavit must contain, along with support-
  Ql     'r and       ing facts, at least one of the following allegations;
                                                                                    eliminate or modify the terms of a geographical restric-
 he ., :eusto-                                                                      tion on a person having the exclusive right to deter-
 ne motive for            (1) that the child's present environment may en-           mine a child's primary residence is a 'suit seeking to
 reserving the        danger the child's physical health or significantly im·        modify the deSignation of the person having the exclu-
,arent and the        pair the child's emotional development;                        sive right to deSignate the primary residence of a child'
 gements; and             (2) that the person who has the exclusive right to         for purposes of §156J02(a), [~I Here, [because peti-
 ravel arrange-        designate the primary residence of the child is the per-      tion was med within a year of the original order,
 _ S.W.3d _            son seeking or consenting to the modification and the         mother] was required to file a §156.102 affidavit when
 ~eding) (No,          mOdification is in the best interest of the child; or         she filed her original and first amended petitions seek-
lId not force                                                                        ing to eliminate the geographical restriction,"
 ,d employment              (3) that the person who has the exclusive right to
                       designate the primary residence of the child has volun-
                                                                                           Eliason v. Eliason, 162 S'w.3d 883, 886 (Tex,
 quirement for                                                                       App,-Dallas 2005, no peL), "[Bly its clear and un-
                       tarily relinquished the primary care and possession of
                                                                                     equivocal terms, the affidavit requirement found in
                       the child for at least six months and the modification is
,.W.2d 252, 254                                                                       § 156.102 is applicable only to suits seeking to modity
                       in the best interest of the child,
ough now crea-                                                                        the designation of a person with the exclusive right to
ssed in [Fam.              (c) The court shall deny the relief sought and             determine the primary residence of a child, [T]he affi-
6.103, 156.104,        refuse to schedule a hearing for modification under            davit requirement does not apply when at the time suit
  by the legisla-      this section unless the court determines, on the basis         is med no person possesses this exclusive right. The or-
I a body of com-
                       olthe affidavit, that facts adequate to support an allega-     der appellee sought to modify in this case stated that
, the)' recognize      tion listed in Subsection (b) are stated in the affidavit.     both he and appellllOt had a joint right to establish
'arrants modifi-       If the court determines that the facts stated are ad-           [child's I primary residence. Therefore, , .. appellee
 may injuriOUSly       equate to support an allegation, the court shall set a         was not seeking to modify a previously existing exclu-
ient to require        time and place for the hearing.                                sive right to determine the child's residence. Because
ther things, re-          (d) Subsection (b)(3) does not apply to a person             appellee was not seeking to modify an exclusive right to
.e child's mind        Who has the exclusive right to designate the primary            determine [child's] residency, §156,102 does not apply
,e,       by a par-    reSidence of the child and who has temporarily relin-           to appellee's counter-petition."
 thl' )e main·         quished the primary care and possession of the child to              Mobley v. Mobley, 684 S.W.2d 226, 229 (Tex.
 g a stable home       another person during the conservator's military de-            App,-Fort Worth 1985, writ dism'd), "It is obvious that
:his interest, ju-     ployment, military mobilization, or temporary military          the intention of the t.egislature in putting § 14.08(d)
 s in the child'S      duty, as those terms are defined by Section 153.701.             [now §156.102(a)] in the Family Code was to assure
                                                                                                                         O'CONNOR'S FAMILY CODE                     487
                                                          FAMILY CODE-TITLE
                                                        CHAPTER 1S6. MODIFICATION
                                                               §§IS6.I02 - 156.1045




stability to the provision for custody of divorced parents
                                                                                *---------
                                                                                         (b) A person commits an offense if the person
and to prevent the custody award from being relitigated                              a suit to modify an order or portion of a decree
within a short period of time, except in cases involving                             on the grounds permitted under Subsection (a)
the children's physical health and emotional develop-                                the person knows that the person against whOm
ment. Therefore, §14.08(e) [now §156.l02(c)] reo                                     motion is filed has not been convicted of an offense,
quires that an initial determination be made by the                                  received deferred adjudication for an offense,
court as to whether. the facts sworn to in the affidavit                             Section 21.02, 21.11, 22.011, or 22.021, Penal Code.
supporting the motion to modify justify a hearing. [~J                               offense under this subsection is a Class B
To be entitled to have the motion set for a hearing in                               meanor.
the instant case, [mother) had to state adequate facts                                    liistoryofFam. Code §IS6.104: Acts 2001, 77th Leg., ch. 1289, §8, eff.SepL
                                                                                     1,2001, Amended by Acts 2007. 80th Leg., th. 593, *3.29, eff. Sept }, 2007,
to support the allegation that the child's physical health                                History of Former Fam.. Code §156.l04: Ads 1995, 74th Leg., th. 20, §l, eft,
mo:y be endangered or his emotional development sig-                                 Apr. 20, 1995. Deleted by Acts 2001, 77th Leg., ch, 1289, §8, eft, Sept. 1,2001.
 nificantly impaired. The facts alleged had to be suffi-                             Source: Former Fam. Code §§ 14.021(g), 14.08(c)(5).
                                                                                         See also O'ConnoT~ kt"as Family l.Q.w Handbook (2010), ~ 'fYpes of rna.
 cient to show the possibility of harm rather than the ex-                           terial & substantial changes," ch. B·A, §3.J.4(1)(c), p. 832,
 istence of harm."
                                                                                        FAM §156.I045. MODIFICATION OF
          FAM § 1 56.1 03. INCREASED                                                      ORDER ON CONVICTION FOR
             EXPENSES BECAUSE                                                                  FAMILY VIOLENCE
          OF CHANGE OF RESIDENCE
    (a) If a change of residence results in increased                                    (a) The conviction or an order deferring adjudica-
expenses for a party having possession of or access to                               tion of a person who is a possessory conservator or a
a child, the court may render appropriate orders to allo-                            sole Or joint managing conservator for an offense in-
cate those increased expenses on a fair and equitable                                volving family violence is a material and substantial
basis, taking into account the cause of the increased                                change of circumstances sufficient to justify a tempo-
expenses and the best interest of the child.                                         rary order and modification of an existing court order
    (b) The payment of increased expenses by the                                     or portion of a decree that provides for the appoint-
party whose residence is changed is rebuttably pre-                                  ment of a conservator or that sets the lerms and condi-
sumed to be in the best interest of the child.                                       tions of conservatorship or for the possession of or
                                                                                      access to a child to conform the order to the require-
    Cc) The court may render an order without regard
                                                                                      ments of Section JS3.004(d).
to whether another change in the lerms and conditions
for the possession of or access to the child is made.                                    (b) A person commits an offense if the person. files
     HistnryofFam. Code §156J03: Acts 2001, 77th Leg., tho 1289, §7, eff, Sept.       a suit to modify an order or portion of a decree based
1,2001.                                                                               on the grounds permitted under Subsection Ca) and
     History of Ponner Pam. C(lde §J56.103: Acts 1995, 74th Leg., ch. 20, §1, eff.
Apr, 20, 1995. Deleted by Acts 2001, 77th Leg., th. 1289, §1, elf. Sept. 1,2001-      the person knows that the person against whom the
SOurce~ Former Fam. Code §14.08(c)(4),                                                motion is filed has not been convicted of an offense, or
    FAM §1S6.104. MODIFICATION OF                                                     received deferred adjudication for an offense, involving
      ORDER ON CONVICTION FOR                                                         family violence. An offense under this subsection is a
        CHILD ABUSE; PENALTY                                                          Class B misdemeanor.
     (a) Except as provided by Section 156.1045, the                                      History of Pam, Code §lS6.l64S: Acts 20(11, 77th Leg., ch. 1289, §9, eff.
 conviction of a conservator for an offense under Sec-                                Sept 1,2001.
 tion 21.02, Penal Code, or Ihe conviction of a conserva-                                                            ANNO'T'ATIONS
 tor or an order deferring adjudication with regard to
 the conservator, for an offense involving the ahuse of a                                 In re R.ToH., 175 S.W.3d 519, 521-22 (TexApp.-
 child under Section 21.11, 22.011, or 22.021, Penal                                  Fort Worth 2005, no pet.). "[I Jf the trial court had
 Code, is a material and substantial change of circum-                                named [father] as the parent with the exclusive right
 stances sufficient to justify a temporary order and                                  to determine [child's J primary residence, evidence that
 modification of an existing court order or portion of a                               [mother J was placed on deferred adjudication for [as-
 decree that provides for the appointment of a conserva-                              saulting father) would be sufficient to support the
 tor or that sets the terms and conditions of conserva-                               modification. But §156.1045 does not compel the trial
 torship or for the possession of or access to a child.                               court to modify an existing order in such a circum-
 488     O'CONNOR'S FAMILY CODE
Exhibit "B"
                                                           ~AMILY CODE-7tl'l!'L.
                                                          CHAPTER 156. Mor:nFIOATtON
                                                                  §§156.002· 156./)06


                                                                                   *---~-~---
modification." See also In re P.D.M., 117 S.w.3d 453,                                  presented, as well as evidence no! presented. We do
454 (Tex.App.-Fort Worth 2003, pel. denied) (father's                                  find evidence in the record Iha ••he ,;hlld ,Ud not want
suit for custody was considered modification of final di-                              to leave her mother [0 live with the lather. We find no
vorce decree after mother, who was managing conser-                                    corroborating evidence supporting the comention that
vator, died; no parental presumption).                                                 the child should live with the father and be taken away
    In re A,J.L" 108 S.W.3d 414, 419-20 (fex.App.-                                     from the mother. Also lacking is e'ndence of [father's I
Fort Worth 2003, pet. denied). "A 'party affected' by an                               stable living conditions, that [father] could care for the
order includes a person mentioned in a previous decree                                 child on a daily basis, that [father! had plans Or rou·
in the context of conservatorship. [~) The order at                                     tines for the child, nor was there evidence of any sup·
issue here is ... the custody order rendered in [W's pre-                               port persons available to assist the father in the care of
vious divorce) suit affecting lW's ex-H) and [W's I par·                                the child. [Father I did take the child to a local psychia·
ent-child relationship with their children.... I ~ I                                    trist ... but offered no testimony from [doctor). [~I
 [Stepfather J was not a party to [W's previous I divorce,                              [Father J has failed to show this Court any abuse of tri~
nor is he named anywhere in the [custody order from                                     court discretion regarding the award of $5,000 attor-
W's previous divorce J. [The custody order from W's pre-                                neis fees."
vious divorce) does not mention [stepfather] nor adju-
 dicate any of I stepfather's J rights, The facts presented                             FAM §156.006. TEMPORARY 'ORDERS
 by [stepfather I do not establish that he is a 'party af-                                 (a) Except as provided by Subsection (b), the court
 fected' by the [custody order from W's previous di-                                   may render a temporary order in a suit for modifica·
 vorce I he seeks to modify. Accordingly, we hold that                                 tion.
 [stepfather] lacks standing to seek modification of the
                                                                                           (ll) While a suit for modification is pending, the
 order under §156.002(a) .... "
                                                                                       court may not render a temporary order Ihat has the ef·
               FAM §1 56.003. NOTICE                                                   fect of changing the designation of the person who has
    Aparty whose rights and duties may be affected by a                                the exclusive right to desj~nate the primary residence
suit for modification is entitled to receive notice by ser-                            of the child under the final order unless the temporary
vice of citation.                                                                      order is in the best interest of the child and:
     History of Fam. Code § 156.003: Acts 1995, 74th Leg., cb, 20, §1, eff. Apt. 20,        (l) the order is necessary because the child's
1995. Amen~ed by Acts 1999, 76th Leg., ch. 178, §9, eff. Aug. 30, 1999. Source:
Former Pam. Code §§lL08(c), 14.08(b).                                                   present circumstances would Significantly impair the
           FAM §156.004, PROCEDURE
                                                                                        child's physical health or emotional development;
      The Texas Rules of Civil Procedure applicable to the                                  (2) the person deSignated in the final order hasvol·
 filing of an 'lriginal lawsuit apply to a suit for modifica·                           untarily relinquished the primary care and possession
 tion under this chapter.                                                               of the child for more than six months; Or
     Hil\tory of Pam. Code §156.004: Acts 1995, 74th Leg., ch, 20, §1, eft. Apr. 20,
 1995, Source: fonner Pam. Code !i 14.08(b). '                                             (3) the child is 12 years of age or older and has ex-
                                                                                        pressed to the court in cham hers as provided by Section
   FAM §1 56.005. FRIVOLOUS FILING                                                      153,009 the name oflhe person who is the child's pref·
     OF SUIT FOR MODIFICATION
                                                                                        erence to have the exclusive right to designate the pri-
     If the court finds that a suit for modification is filed
                                                                                        mary residence of the child.
 frivolously Or is designed to harass a party, the court
 shall tax attorney's fees as costs against the offending                                   (c) Subsection (b)(2) does not apply to a conserva·
 party.                                                                                 tor who has the exclusive right to designate the pri-
                            *
      History ofFarrL Code 156.005: Acts 1995, 74th Leg., ch, 20, § 1, eft. Apr. 20,    mary residence of the child and who has temporarily re-
 1995. SOllrce: FQrmer Fam. Code §14.082.                                               linquished the primary care and possession of the child
                                ANNOTATIONS                                             to another person duri!lg the conservator's military de-
    Warchol v. Warchol, 853 S.W2d J65, 170 (lex.                                        ployment, military mobilization, or temporary military
 App.-Beaumont 1993, no writ). "In determining                                          duty, as those terms are defined by Section 153,701.
                                                                                              History ofFam. Code S156.006: Acts 1995, 74tl1 Leg" ch. 20, n, eff. Apr" 20,
 whether the trial court abused its discretion in award·                                 1995. Amended by Acts 1999, 76th Leg., ch. 1390, §lS, eff. Sept. 1, 1999; Acts
 ing attorney's fees we must look to the evidence                                        2001, 77th Leg., ch. 1289, §3, eft Sept. 1,2001; A,ts 2003, 78th Leg" ch.l036,

 484      O'CQNNOR'S FAMU.. Y C;ODE
       ,
           ,
                                                                 •                                                                         •
                                                                            FAMILY CODE-TITLE 5
                                                                           CHAI'TER 156. MODIFICATION
                                                                              §§tS6_006·156.101




               §18, eff. Sept. 1,2003; Acts 2005, 19th Lelh ch. 916, §17, eff. June 18, 2005~ Acl.ll
                                                                                                       *---------
                                                                                                           SUBCHAPTER B. MODIFICATION OF
               2009, Sist Leg., th. 1113, §27 (etr. Sept. 1,2009), cb. illS, §2 (efr. Sept. 1,              CONSERVATORSHIP, POSSESSION
               2009), tho 727, §2 (eff, Sept. I, 2009). Soun:e: Former Fam. Code §§ I 1.11(a),
                                                                                                             & ACCESS, OR DETERMINATION
               14.08(g).
                                                                                                                                 OF RESIDENCE
                                               ANNOTATIONS
                                                                                                          FAM §1S6.10t. GROUNDS FOR
                     In re Sanchez, 228 S.W.3d 214, 217 (Tex.                                               MODIFICATION OF ORDER
               App.-San Antonio 2007, orig. proceeding). "To deter-                                     ESTABLISHING CONSERVATORSHIP
                                                                                                           OR POSSESSION & ACCESS
               mine if temporary orders effectively change the person
               with the exclusive right to designate primary resi-                                          (a) The court may modify an order that provides
               dence, we must examine the temporary orders in rela·                                    for the appointment of a conservator of a child, that pro-
               tion to the final order. This determination does not turn                               vides the terms and conditions of conservatorship, or
               on the tri8I court's characterization of its ruling, but on                             that provides for the possession of or access to a child if
   ]            the substance of the temporary orders. At 218: Together,                               modification would be in the best interest of the child
  II           lhe 'substantial reduction in [mother's] overall posses·                                and:
  r-            sion time, the restrictions placed on her possession                                        (1) the circumstances of the child, a conservator,
                rights, and the indefinite duration of the temporary or-                               or other party affected by the order have materially and
                ders, operate to deprive [her] of any discretion inher-                                substantially changed since the earlier of:
                ent in her right to designate [child's] principal resi-                                      (A) the date of the rendition oflhe order; or
  rt            dence. We conclude that the temporary' orders                                               (B) the date ofthe signing ofa mediated or collabo·
  a-            effectively change the designation of the person with                                   rative law settlement agreement on which the order is
                the exclusive right to designate-primary residence un-                                  based;
 le              der the final order." .                                                                     (2) the child is at least 12 years of age and has ex-
 ,f-                  Saxton v. Daggett, 864 S.W.2d 729, 736 (fex.                                      pressed to the court in chambers as provided by Section
 as              App.-Houston [lst Dis!.] 1993, orig. proceeding).                                      153.009 the name of the person who is the child's pref-
 ce             ,"Temporary orders under [Fam. Code] §1l.l1(a) [now                                     erence to have the exclusive right to designate the pri-
 lry             §156.006] are not appealable. Mandamus is the appro·                                   mary residence of the child; or
                 priate remedy to attack the issuance of temporary or·                                       (3) the conservator who has the exclusive right to
 i's             ders ...."                                                                             designate the primary residence of lhe child has vol un·
 he                   Bolden v. Clapp, 751 S.W.2d 674, 676 (Tex.App.-                                   tarily relinquished the primary care and possession of
                 lYler 1988, orig. proceeding). "The question of law in-                                the child to another person for at least six months.
 '01-            volved is what constitutes voluntary relinquishment                                          (b) Subsection (a)(3) does not apply to a conserva-
 on              of actual care, control, and possession so as to satisfy                                tor who has the exclusive right to designate the pri-
                 the requirement.of [Fam. Code] §14.08(g)(2) [now                                        mary residence of the child and who has temporarily re-
                 §156.006(b)(2)] and thus empowering the trial court                                     linquished the primary care and possession of the child
ex-               to enter temporary orders. [Mother] contends that re-
ion                                                                                                      to another person during the conservator's military de-
                 linquishment is the equivalent of abandonment and                                       ployment, military mobilization, or temporary military
-ef-             analogizes the requirements of §14.08(g)(2) to those
lri-                                                                                                     duty, as those terms are defined by Section 153.701.
                  for involuntary termination of parental rights under                                       Hi~tory of Fam. Code §156,101: Acts 1995, 74th Leg., ch, 20, § 1, efl. Apr. 20,
                   [Fam. Code] §15.02 [now §16l.001]. That analogy                                      1995, Amended by Acts 1995, 74th Leg., th. 751, §47, eff, Sept. 1,1995; Acts
                                                                                                        1999, 76th ~g., ch. 1390, §16, eff. Sepll, 1999;Acts 2001, 77th Leg., ch. 1289,
'Va-               is inapt. The statutes differ in their provisions and                                §§4, 5, et!. Sept. 1, 2001; Acts 2003, 78thileg., th. 1036,' §19, eff. Sept. 1, 2003;
pri-              their purposes. At 677: We believe §14.08(g)(2)                                       Acts 2009, 8Ist Leg., ch. 1113, §28 (eff. Sept. 1,20119), ch. 1118, §3 (eff. Sept. 1,
                                                                                                        2009), th. 72Y, §3 (eff. Sept. 1. 2009). Source: FOnTI(,.r Fam. Code §14.08(c)(1),
. re-              requires something less than the showing required                                    (g)(3).
hild               by §15.02. Since the consequences of an action or                                         See also O'Connor's Texas Family lAw Handbook (2010), "Modifica·
                   order under Ch. 14 are not as far·reaching, irrevocable                              lion of custody ~generally," cll. g.A, §3.1, p. 830.
 de-
tary               and complete, we conclude that a lesser showing                                                                       ANNOTATIONS

                    satisfies the voluntary relinquishment requirement of                                  Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.Z002). "The
Jr. Zl>             §14.08(g)(2)."
; Acts                                                                                                  Legislature has made clear that '[tJhe best interest of
1036.                  Sections 156.007·156.100 reserved for expansion                                  lhe child shall always be the primary consideration of
                                                                                                                                           O'CONNOR'S FAMILY CODE                      486
Exhibit "C"
                                                          FAMiLY COJOI;l-"l'O'V'LE 5
                                                         !CHAPTER 1156. MODIFICATION
                                                             §§156.002· 156.0015




modification." See also In re RD.M., 117 S.W.3d 453,                                  presented, as well as evidence not presented. We do
454 (fexApp.-Fort Worth 2003, pet. denied) (father's                                  find evidence in the record that the chdd did not want
suit for custody was considered modification of final di·                             to leave her mother to live with the father. Ne find no
vorce decree after mother, who was managing conser-                                   corroborating evidence supporting the contention that
vator, died; no parental presumption).                                                the child should live with the father and be taken away
    In re A.J.L., 108 S.w.3d 414, 419·20 (fex.App.-                                   from the mother. Also lacking is evidence of rfather's I
Fort Worth 2003, pet. denied). "A 'party affected' by an                              stable living conditions, that [father J could care for the
order includes a person mentioned in a previous decree                                child on a daily baSis, that [father J had plans or rou-
in the context of conservatorship. [~] The order at                                   tines for the child, nor was there evidence of any sup-
issue here is ... the custody order rendered in [W's pre·                             port persons available to assist the father in the care of
vious divorce] suit affecting [W's ex-HI and [W's] par-                                the child. [Father] did take the child to a 10caJ psychia-
ent-child relationship with their children.... [~l                                     trist ... but offered no testimony from [doctor J. [~l
 [Stepfather I was not a party to [W's previous] divorce,                              [Father I has failed to show this Court any abuse of trial
nor is he named anywhere in the [custody order from                                    court discretion regarding the award of $5,000 attor-
W's previous divorce J. [The custody order from Ws pre-                                ney's fees."
vious divorce) does not mention [stepfather J nor adju·
dicate any of [stepfather's) rights. The facts presented                               FAM §156.006. TEMPORARY ORDERS
by [stepfather] do not establish that he is a 'partyaf-                                   Ca) Except as provided by Subsection (b), ihe court
 fected' by the [custody order from W's previous di-                                  may render a temporary order in a suit for modifica-
vorce) he seeks to modify. Accordingly, we hold that                                  tion.
 [stepfather I lacks standing to seek modification of the                                 (b) While a suit for modification is pending, the
 order under §156.002(a) ...."
                                                                                      court may not render a temporary order that has the ef·
                FAM §ISEi.003. NOTICE                                                 feet of changing the designation of the person who has
    Apartywhose rights and duties maybe affected by a                                 the exclusive right to designate the primary residence
suit for modification is entitled to receive notice by ser-                           of the child under the final order unless the temporary
vice of citation.                                                                     order is in the best interest of the child and:
    History of Pam. Code §156.003: Acts 1995, 74th Leg., ch, 20, § 1, eft. Apr. 20,
1995. Amended by Acts 1999, 76th Leg., eh. 178, ~9, eff. Aug. 30, 1999. Source:
                                                                                          (1) the order is necessary because the child's
Former F:nn, Code §§11.08(c), 14.08(1).                                               present circumstances would Significantly impair the
          FAM §ISEi.004. PROCEDURE
                                                                                      child's physical health or emotional development;
     The Texas Rules of Civil Procedure applicable to the                                  (2) the person designated in the final order has voJ-
filing of an original lawsuit apply to a suil for modifica-                            untarily relinquished the primary care and possession
tion under this chapter.                                                               of the child for more than six months; or
     History ofFam. Code §156,OO4: Acts 1995, 74th Leg., ch.20, §l, eff.Apr. 20,
 1995. Source: Fonner Faro. Code §14.08(b).                                                (3) the child is 12 years of age or older and has ex-
                                                                                       pressed to the court in chambers as provided by Section
   FAM §156.005. FRIVOL.OUS FIL.ING                                                    153.009 the name of the person who is the child's pref-
     OF SUIT FOR MODIFICATION
                                                                                       erence to have the exclusive right to designate the pri-
     If the court finds that a suit for modification is filed
                                                                                       mary residence of the child.
 frivolously or is designed to harass a party, the court
 shall tax attorney's fees as costs against the offending                                  (c) Subsection (b) (2) does not apply to a conserva-
 party.                                                                                tor who has the exclusive right to deSignate the pri-
     HistoryofFam. Code § IS6.005: Ads 1995, 74th Leg" eh. 20, § 1, elf. Apr. 20,      mary residence of the child and who has temporarily re-
 1995. Source: Fonner Fam. Code §14.082.                                               linquished the primary care and possession of the child
                               ANNOTATIONS                                             to another person during the conservator's military de-
    Warchol v. Warchol, 853 SW2d 165, 170 (Tex.                                        ployment, military mobilization, or temporary military
 App.-Beaumont 1993, no writ). "In determining                                         duty, as those terms are defined by Section 153.701.
                                                                                            Hist(l1Y ofFam< Code § 156,005: Acttl1995, 74th ltg., th. 20, ~ 1, elT. Apr. 20,
 whether the trial court abused Its discretion in award-                               1995. Amended by Atts 1999, 76th Leg.,ch. 1390. ~15, eff. Sept. 1, 1999; Acts
 ing attorney's fees we must look to. the evidence                                     2001, 77th Leg .• ch. 1289, §3, eft. Sept 1, 2001; Acts 2003, 7Bth. il>g., tho )036,

 484      O'CONNOR'S FAMILY CODE
                                             NO. 76,122

 IN THE INTEREST OF                                 §     IN THE DISTRICT COURT
                                                    §
 K        T       W                                 §     196m JUDICIAL DISTRICT
                                                    §
 A CHILD                                            §     HUNT COUNTY, TEXAS

                                BRIDGE TEMPORARY ORDERS

         On June 2, 2011 Court heard Respondents' Motion to Deny Relief in Suit to Modify Parent-
Child Relationship, Motion to Dismiss, and in the Alternative, Motion to Abate Proceedings.
1.       Appearances
         Petitioner, TARA BROOK TYNDALL, appeared in person and through attorney of record,
Frederick C. Shelton and Deborah Slye-Miller, and announced ready.
         Respondents, JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL, appeared
in person and through attorney of record, Holly H. Gotcher and Shannon M. Estrada, and announced
ready.
         Respondent, ZACH WILLIAMSON, appeared in person and through attorney of reeord,
Frederick C. Shelton and Deborah Slye-Miller, and announced ready.
2.       Jurisdiction
         The Court, after examining the record, and hearing the evidence and argument of counsel,
finds that all necessary prerequisites of the law have been legally satisfied and that this Court has
jurisdiction of this case and of all the parties.
3.       Record
         The record of testimony was duly reported by Kelly Bryant, the official Court Reporter in and
for the 196th Judicial District Court of Hunt County, Texas.
4.       Child
         The following orders are for the safety and welfare and in the best interest of the following
child:
         Name:
         Sex:                       Male
         Birth date:
         Home state:                Texas

 BRIDGE TEMPORARY ORDERS127290                                                                  Page I
5.     Temporary Bridge Orders
       The Court finds that the provisions in these orders relating to conservatorship, possession of
and access to the child and child support constitute the temporary bridge orders of this Court.
6.     Possession and Access
I.     Possession Order
       IT IS ORDERED that each conservator shall comply with all terms and conditions of this
Possession Order. IT IS ORDERED that this Possession Order is effective immediately and applies
to all periods of possession occurring on and after the date the Court signs this Possession Order or
until further order of this Court. IT IS, THEREFORE, ORDERED:
(a)     Mutual Agreement or Specified Terms for Possession
        IT IS ORDERED that the conservators shall have possession of the child at times mutually
agreed to in advance by the parties, and, in the absence of mutual agreement, it is ORDERED that
the conservators shaH have possession of the child under the specified terms set out in this
Possession Order.
(b)     Possession for TARA BROOK TYNDALL and ZACH WILLIAMSON:
        The Court finds the following orders would be in the best interest of the child at this time.
        IT IS THEREFORE ORDERED as follows:
        1.     Visitation between TARA BROOK TYNDALL and ZACH WILLIAMSON and
the minor child shall always be under the supervision of an off-duty officer employed by the Hunt
County Sheriffs Department, Greenville, Hunt County, Texas on the following days and times as
follows:
                a.     Thursday, June 2, 2011- Beginning at 6:00 p.m. and ending on Thursday,
                       June 2, 2011 at 7:00 p.m.
                b.     Wednesday, June 15, 2011 - Beginning at 6:00 p.m. and ending on
                       Wednesday, June 15,2011 at 7:00 p.m.
                c.     Wednesday, June 29, 2011 - Beginning at 6:00 p.m. and ending on
                       Wednesday, June 29, 2011 at 7:00 p.m.
                d.     And every other Wednesday beginning at 6:00 p.m. and ending at 7:00 p.m.
        2.      All periods of possession of the child shall occur at the west end of the CSRP-Hunt


 BRIDGE TEMPORARY ORDERS/27290                                                                    Page 2
County Court, Hunt County Health & Juvenile Detention Center (former Hunt County Criminal
Justice Center), 2500 Johnson Street, Greenville, Texas 75401 or Aunt Char's Kid Zone, Greenville
Sports Complex, #2 Leo Hackney Blvd., Greenville, Texas 75401.
(c)    Undesignated Periods of Possession
       JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL shall have the right of
periods of possession of the child at all other times not specifically designated in this Possession
Order for the other conservators.
(d)     General Terms and Conditions
        Except as otherwise expressly provided in this Possession Order, the terms and conditions
of possession of the child that apply regardless of the distance between the residence of a parent and
the child are as follows:
        I.      Surrender of Child by JENNIFER ELAINE NOWELL and JOHN AUBRY
NOWELL- JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL are ORDERED
to surrender the child to an off-duty Sheriff s deputy with the Hunt County Sheriff s Office at the
beginning of each period ofTARA BROOK TYNDALL and ZACH WILLIAMSON'S possession
at the west end of the CSRP-Hunt County Court, Hunt County Health & Juvenile Detention Center
(former Hunt County Criminal Justice Center), 2500 Johnson Street, Greenville, Texas 75401 or
Aunt Char's Kid Zone, Greenville Sports Complex, #2 Leo Hackney Blvd., Greenville, Texas 75401.
        2.      Return of Child by TARA BROOK TYNDALL and ZACH WILLIAMSON -
TARA BROOK TYNDALL and ZACH WILLIAMSON are ORDERED to return the child to
JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL, at the end of each period of
JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL'S possession, at the west end
of the CSRP-Hunt County Court, Hunt County Health & Juvenile Detention Center (former Hunt
County Criminal Justice Center), 2500 Johnson Street, Greenville, Texas 75401 or Aunt Char's Kid
Zone, Greenville Sports Complex, #2 Leo Hackney Blvd., Greenville, Texas 75401.
        3.      Personal Effects - Each conservator is ORDERED to return with the child the
personal effects that the child brought at the beginning of the period of possession.
        4.      Inability to Exercise Possession - Each conservator is ORDERED to give notice to
the other conservators on each occasion that the conservator will be unable to exercise that


BRIDGE TEMPORARY ORDERS/27290                                                                   Page 3
conservator's right of possession for any specified period.
         5.     Written Notice - Written notice shaH be deemed to have been timely made if received
or postmarked before or at the time that notice is due.
         6.     The Sheriff s deputy has the authority to end the visit ifhe or she feels that continuing
the visit is not in the best interest ofthe child.
         7.     The Sheriff s deputy has the authority to change the location of the visit.
         8.     TARA BROOK TYNDALL shall remit the amount ofTWENTY-FIVE AND NO
100THS ($25.00) DOLLARS to the Sheriffs deputy supervising the visit at the beginning time of
each visit.
         9.     ZACH WILLIAMSON shall remit the amount of TWENTY-FIVE AND NO
100THS ($25.00) DOLLARS to the Sheriffs deputy supervising the visit at the beginning time of
each visit
         This concludes the Possession Order.
2.       Duration
         The periods of possession ordered above apply to the child the subject of this suit while that
child is under the age of eighteen years and not otherwise emancipated or until further order of this
Court.
7.       Information Regarding Parties
         Information regarding each party is as follows:
         GREAT-AUNT. JOINT MANAGING CONSERVATOR:
         Name:                                       JENNIFER ELAINE NOWELL
         Social Security number:                     xxx-xx-x
         Driver's license number:                    xxxxx
         Issuing state:                              Texas
         Current residence address:                  clo Mr. Tommy Spradling, Sr.
                                                     6204 Live Oak Street, Greenville, Texas 75402
         Mailing address:                            clo Mr. Tommy Spradling, Sr.
                                                     6204 Live Oak Street, Greenville, Texas 75402
         Home telephone number:                      903-268-2389
         Name of employer:                           Unknown
         Address of employment:                      Unknown
         Work telephone number:                      Unknown

         GREAT-UNCLE, JOINT MANAGING CONSERVATOR:

BRIDGE TEMPORARY ORDERS/27290                                                                      Page 4
     Name:                        JOHN AUBRY NOWELL
     Social Security number:      xxx·xx-x
     Driver's license number:     xxxxx
     Issuing state:               Texas
     Current residence address:   c/o Mr. Tommy Spradling, Sr.
                                  6204 Live Oak Street, Greenville, Texas 75402
     Mailing address:             c/o Mr. Tommy Spradling, Sr.
                                  6204 Live Oak Street, Greenville, Texas 75402
     Home telephone number:       903·268·2389
     Name of employer:            Unknown
     Address of employment:       Unknown
     Work telephone number:       Unknown

     MOTHER:
     Name:                        TARA BROOK TYNDALL
     Social Security number:      xxx-xx-x
     Driver's license number:     xxxxx
     Issuing state:               Texas
     Current residence address:   Unknown
     Mailing address:             Unknown
     Home telephone number:       Unknown
     Name of employer:            Unknown
     Address of employment:       Unknown
     Work telephone number:       Unknown
     FATHER:
     Name:                        ZACH WILLIAMSON
     Social Security number:      Unknown
     Driver's license number:     Unknown
     Issuing state:               Unknown
     Current residence address:   Unknown
     Mailing address:             Unknown
     Home telephone number:       Unknown
     Name of employer:            Unknown
     Address of employment:       Unknown
     Work telephone number:       Unknown

8.   Required Notices
     EACH PERSON WHO IS A PARTY TO TmS ORDER IS ORDERED TO NOTIFY
EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY

BRIDGE TEMPORARY ORDERS127290                                                     PageS
CHANGE IN THE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS,
HOME TELEPHONE NUMBER, NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT,
DRIVER'S LICENSE NUMBER, AND WORK TELEPHONE NUMBER. THE PARTY IS
ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN ANY OF THE
REQUIRED INFORMATION TO EACH OTHER PARTY, THE COURT,AND THE STATE
CASE REGISTRY ON OR BEFORE THE 60TH DAY BEFORE THE INTENDED
CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF THE
CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS
ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY
AFTER THE DATE THAT THE PARTY KNOWS OF THE CHANGE.
       THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE
COURT, AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON,
BY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT
OR ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.
       FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE
EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE
CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN FURTHER
LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A
FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP
TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY
JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
       Notice shall be given to the other party by delivering a copy of the notice to the party by
registered or certified mail, return receipt requested. Notice shall be given to the Court by delivering
a copy of the notice either in person to the clerk of the Court or by registered or certified mail
addressed to the clerk at Hunt County District Clerk, P.O. Box 1437, Greenville, Texas 75403-1437.
Notice shall be given to the state case registry by mailing a copy of the notice to State Case Registry,
Contract Services Section, MC046S, P.O. Box 12017, Austin, Texas 78711-2017.
        NOTICE TO ANY PEACE OFFICER OF THE STATE OF TEXAS: YOU MAY USE
REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY


BRIDGE TEMPORARY ORDERS/27290                                                                     Page 6
SPECIFIED IN THIS ORDER. A PEACE OFFICER WHO RELIES ON THE TERMS OF
A COURT ORDER AND THE OFFICER'S AGENCY ARE ENTITLED TO THE
APPLICABLE IMMUNITY AGAINST ANY CLAIM, CIVIL OR OTHERWISE,
REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE OF
THE OFFICER'S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT
RELATE TO CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR
ENFORCEMENT AN ORDER THAT IS INVALID OR NO LONGER IN EFFECT
COMMITS AN OFFENSE THAT MAY BE PUNISHABLE BY CONFINEMENT IN JAIL
FOR AS LONG AS TWO YEARS AND A FINE OF AS MUCH AS $10,000.
9.      Warnings to Parties
       WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD
SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CIDLD MAY RESULT IN
FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING CONTEMPT OF
COURT. A FINDING OF CONTEMPT MAYBE PUNISHED BY CONFINEMENT IN JAIL
FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A
MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
       FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE
PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN
THE PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.
       FAILURE OF A PARTY TO PAY CIDLD SUPPORT DOES NOT JUSTIFY
DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A
CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A
CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT -ORDERED CIDLD SUPPORT
TO THAT PARTY.
10.    Mutual Temporary Injunction
       The Court finds that the entry of the following temporary injunction while this case is
pending is in the best interest of the minor child.
        The temporary injunction granted below shall be effective immediately and shall be binding
on the parties; on their agents, servants, employees, and attorneys; and on those persons in active


BRIDGE TEMPORARY ORDERS/27290                                                                Page 7
concert or participation with them who receive actual notice of this order by personal service or
otherwise. The requirement of a bond is waived.
       IT IS ORDERED that TARA BROOK TYNDALL is enjoined from:
       I.      Disturbing the peace of the child or of another party.

        2.      Withdrawing the child from enrollment in the school or day-care facility where the
child is presently enrolled.

       3.      Hiding or secreting the child from another party.

    4.   Making disparaging remarks regarding JENNIFER ELAINE NOWELL and JOHN
AUBRY NOWELL, or JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL'S,
family in the presence or within the hearing of the child.

       5.      Removing the minor child from the possession of JENNIFER ELAINE NOWELL
and JOHN AUBRY NOWELL.

        6.     Removing the child beyond a geographical area identified by the Court, acting directly
or in concert with others.

      7.     Removing the minor child from the supervision and possession of an off-duty Hunt
County Sheriffs Deputy officer.

        IT IS ORDERED that ZAeH WILLIAMSON is enjoined from:

        1.     Disturbing the peace of the child or of another party.

        2.      Withdrawing the child from enrollment in the school or day-care facility where the
child is presently enrolled.

        3.      Hiding or secreting the child from another party.

    4.   Making disparaging remarks regarding JENNIFER ELAINE NOWELL and JOHN
AUBRY NOWELL, or JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL'S,
family in the presence or within the hearing of the child.

        5.      Removing the minor child from the possession of JENNIFER ELAINE NOWELL
and JOHN AUBRY NOWELL.

        6.     Removing the child beyond a geographical area identified by the Court, acting directly
or in concert with others.


BRIDGE TEMPORARY ORDERSI27290                                                                  Page 8
/


          7.     Removing the minor child from the supervision and possession of an off·duty Hunt
    County Sheriffs Deputy officer.

    11.     Service of Writ
            TARA BROOK TYNDALL and ZACH WILLIAMSON waive issuance and service of
    the writ of injunction, by stipulation. IT IS ORDERED that TARA BROOK TYNDALL and
    ZACH WILLIAMSON shall be deemed to be duly served with the writ of injunction.

    12.     Duration
            These Bridge Orders shall continue in force until the signing of the final order or until further
    order of this Court.
    SIGNED on June 2, 2011.



                                                    JUDGE PRESIDING

    APPROVED AS TO FORM ONLY:

    The Law Offices of Morgan and Gotcher
    P. O. Box 556
    2610 Stonewall Street
    Greenville, Texas 75403·0556
    Tel: (903) 455·3183
    Fax: (903) 454·4654




    B>f~~ Holly H. Gotcher, .C.
          State Bar No. 08738100
          Attorney for JENNIFER ELAINE NOWELL and JOHN AUBRY NOWELL

    Frederick C. Shelton
    P.O. Box 1335
    Greenville, Texas 75403
    Tel: (903) 454·1000
    Fax: (903) 454·1027




     BRIDGE TEMPORARY ORDERS/27290                                                                      Page 9
BY:-M~~~----
  Fr derick
  State Bar
  Attorney for TARA BROOK TYNDALL and ZACH WILLIAMSON




BRIDGE TEMPORARY ORDERS/27290                           Page 10
                                      $10,00 CASH TENDER

SUBPOENA DUCES T E C U M C I V I L                      CAUSE NO. 76.122^/V>>
                                                                                     " '0 i
                                                                            :
CLERK OF THE COURT                                      ATTORNEY F0fe 'RESPONDEN4s?- /                    Q


Ms. Stacey Landrum                                      Holly H. Gotcher^    ' j - '.',v y
District Clerk                                          Attorney at Law    *""\00 '        i r
                                                                                    " - 'cn ,
P.O. Box 1437                                           P.O. Box 556          " <  ,^ '
                                                                                                 u
Greenville, Texas 75403                                 GreenviUe, Texas 75403-0556 ~'^ Ty

                                     THE STATE OF TEXAS
                                   SUBPOENA DUCES TECUM

         IN T H E I N T E R E S T O F K        T        W                 , MINOR C H I L D

TO A N Y SHERIFF. CONSTABLE, OR B Y A N Y OTHER PERSON W H O IS NOT A PARTY
AND IS NOT LESS T H A N EIGHTEEN YEARS OF AGE, OF T H E STATE OF TEXAS.
GREETING:

        YOU ARE HEREBY C O M M A N D E D TO S U M M O N :

       Tara Brook Tyndeil
       Hunt County Sheriffs Department
       2801 Stuart Street
       Greenville, Texas 75401;

                                                                                                     th
to be and personally appear Tuesday, February 28, 2012 at 9:00 a.m. before the 196 Judicial
                                                                                rd
District Court located at 2507 Lee Street, Hunt County Courthouse, 3 Floor, Greenville, Hunt
County, Texas, then and there to testify and the truth to speak on behalf o f J E N N I F E R E L A I N E
N O W E L L and J O H N A U B R Y N O W E L L concerning the above styled and numbered cause, now
pending in said Court, and there to remain from day to day, and from term to term, until discharged
by said Court.

Contempt. Failure by any person without adequate excuse to obey a subpoena served upon
that person may be deemed a contempt of the court from which the subpoena is issued or a
distnct court in the county in which the subpoena is served, and may be punished by fine or
confinement, or both.

        The terms "documents," "writings," and "records" are used in this exhibit in their customary
broad sense and include without limitation the following items, regardless o f origin or location,
whether printed, recorded, filmed, or reproduced by any other mechanical process or written or
produced by hand; magazines and sexually explicit materials; whether or not claimed to be
privileged against discovery on any ground; and whether an original, master, or copy, namely:


SUBPOENA DUCES T E C U M                                                                                      i
microfilm, microfiche, any letters, correspondence, telegrams, rnailgrams, messages, message forms,
electronic transmissions, e-mails, memorandums, notes, records, purchase orders, change orders,
financial records, log books, diaries, minutes, contracts, change proposals, charts, graphs, invoices,
shipping receipts, time cards, work orders, memorandums o f telephone or personal conversations,
negotiations, conferences, interoffice communications, reports, analysis, studies, tape records,
computer runs, and any codes necessary to comprehend such runs, books, pamphlets, indexes,
photographs, drawings, specifications, statements and any writings of any nature, however produced
or reproduced, including all drafts, and non-identical copies o f such documents.

You are requested to produce the following documents and information relative to:

       A.
               Date o f Birth:              ; and

       B.      Tara Brook Tyndeil
               Date o f Birth: October 14, 1984; and

       C.      Zach Williamson
               Date of Birth: September 26, 1974;

including, but not limited to:

        1.     A l l Income Tax Returns forthe years 2005, 2006,2007, 2008,2009,2010 and 2011,
               including all supporting documents and attachments;

       2.      A l l payroll records showing the gross pay, including commissions, deferred bonus,
               and/or severance pay, withholding deductions, and net pay for all compensation paid
               f r o m any and all employers for the period from January 1, 2005 to the date o f
               production o f the records;

       3.      All original or official written health insurance plan and/or medical reimbursement
               plans for the period from January 1, 2005 to the date o f production o f t h e records;

       4.      W-2's from all employers for the period from January 1, 2005 to the date o f
               production o f the records;

       5.      A l l diaries, notes, memoranda, journals, calendars, including electronic diaries, notes,
               memoranda, journals, documents, calendars, other written logs, letters and
               correspondence, including electronic writings, all drawings, graphs, charts,
               photographs, tape or electronic recordings, and audio/video recordings which you
               contend supports the claim of marriage of Tara Brook Tyndeil and Zach Williamson
               for the period from January 1, 2005 to the date o f production o f t h e records;




SUBPOENA D U C E S T E C U M
            Entire personnel file from your most recent employer including, but not limited to:

                   date o f employment;
                   job title and responsibilities;
                   working hours per week (including overtime);
                   any absences from work;
                   dates and hours o f sick leave and vacation time;
                   earnings per week/month;
                   name of supervisor;
                   name o f person having custody o f personnel and employment records;

            A l l applications, diaries, notes, memoranda, journals, calendars, including electronic
            diaries, notes, memoranda, journals, documents, calendars, other written logs, letters
            and correspondence, including electronic writings, all drawings, graphs, charts,
            photographs, tape or electronic recordings, and audio/video recordings that constitute
            or contain matters relevant to any government benefits received by
                          , Tara Brook Tyndeil. and/or Zach Williamson for the period from
            January 1, 2005 to the date o f production o f the records;



            A l l applications, diaries, notes, memoranda, journals, calendars, including electronic
            diaries, notes, memoranda, journals, documents, calendars, other written logs, letters
            and correspondence, including electronic writings, all drawings, graphs, charts,
            photographs, tape or electronic recordings, audio/video recordings, supporting
            documentation requested by the Human Service Department to substantiate any
            request for services and/or benefits, and any other documentation submitted with any
            request for services or benefits with the Human Service Department to include, but
            not be limited to, the following benefits:

            a.     Medicaid;
            b.     Medicare;
            c.     SNAP Food Benefits (Food Stamps);
            d.     TANF;
            e.     CHIPS;
            f.     Section 8 Housing;
            g.     WIC;
            h.     any other government aide requested by and/or benefits received by
                                   , Tara Brook Tyndeil, and/or Zach Williamson;

      9.    AH marriage licenses for Tara Brook Tyndeil, and/or Zachary Scott Williamson;

      10.   Proof of all informal marriages, including, but not limited to: any and all Declarations
            and Registrations o f Informal Marriage pursuant to Section 2.402 o f the Texas


SUBPOENA D U C E S T E C U M
               Family Code; and, any and all recordings of Certificate or Declaration o f Informal
               Marriage;

        11.    A copy of your Texas Driver's License,

        12.    A copy o f your Social Security Card- you may redact all but the last 3 characters of
               the card for privacy purposes;

        13.    A copy of any and all motor vehicle titles and records;

        14.    A l l FASFA and other financial aide records with regard to the furthering o f t h e
               parties' higher education;

                                                  1
         5.    A copy o f all banking institutions signature cards.

       HEREIN FAIL NOT, and make due return hereof, showing how you have executed the same.

                                                                                         rd
       ISSUED A N D GIVEN UNDER M Y H A N D at Greenville, Texas this the 23 day January,




                                               BY:
                                                      Holly H . Gotcher, P,
                                                      Attorney o f Record for
                                                      J E N N I F E R E L A I N E N O W E L L and J O H N
                                                      AUBRY NOWELL


                                             RETURN

                             rd
       Came to hand the 23 day o f January, 2012 at                o'clock p.m., and executed on the
                                          o'clock p.m., in Hunt County, Texas, by delivering to Tara
Brook Tyndeil at Hunt County Sheriffs Department, 2801 Stuart Street, GreenviUe, Texas 75401,
Hunt County, Texas, in person, a true copy o f this Subpoena, and tendering said witness in Hunt
County, Texas in person, a true copy o f this Subpoena, and tendering said witness the sum of $ 10.00.




                                               Sheriff, Constable, Citizen o f Hunt Countv, Texas
                               ACCEPTANCE OF SERVICE

       The undersigned witness named in the Subpoena acknowledges receipt of a copy hereof and
hereby accepts and waives service o f such Subpoena.



Date:
                                           (Signature o f Witness)




                                                             See
                                                           Affidavit



SUBPOENA D U C E S T E C U M
                                            AFFIDAVIT OF SERVICE

     TH
 196 J U D I C I A L DISTRICT C O U R T
 HUNT COUNTY
 STATE OF TEXAS

CAUSE #76,122 - IN T H E INTEREST OF K                T         W                 MINOR CHILD

          I , DEBBIE S M I T H , B E I N G D U L Y SWORN DEPOSE A N D S A Y ;
T H A T I A M A U T H O R I Z E D B Y W R I T T E N ORDER OF T H E SUPREME C O U R T OF T H E STATE OF T E X A S T O
SERVE CITATIONS A N D OTHER NOTICES. I AM A C O M P E T E N T PERSON M O R E T H A N 18 YEARS OF A G E
OR OLDER A N D NOT A PARTY T O NOR INTERESTED IN T H E O U T C O M E OF T H E A B O V E S T Y L E D A N D
N U M B E R E D CAUSE, i R E C E I V E D T H E D O C U M E N T S S T A T E D B E L O W ON J A N U A R Y 24,2012 A T 3:30 P.M
INSTRUCTING FOR S A M E T O BE D E L I V E R E D UPON T A R A B R O O K T Y N D E L L .

DELIVERED TO:                                 TARA BROOK T Y N D E L L

EXECUTED A T :                                HUNT C O U N T Y S H E R I F F ' S D E P A R T M E N T ,    2801    STUART
                                              S T R E E T , G R E E N V I L L E , T E X A S 75401

DOCUMENTS D E L I V E R E D :                 S U B P O E N A D U C E S T E C U M C I V I L AND $10.00 W I T N E S S F E E
                                              ATTACHED (CHECK)

DATE AND TIME DELIVERED:                      F E B R U A R Y 8, 2012 A T 5:39 P . M .

M A N N E R OF D E L I V E R Y :              PERSONALLY DELIVERING T H E DOCUMENT(S) TO T H E
                                              P E R S O N A B O V E . (HAND D E L I V E R E D )

FEES:     $

I SOLEMNLY A F F I R M U N D E R T H E PENALTIES OF PJ?                                  'NTENTS OF T H E FOREGOING
PAPER IS TRUE A N D CORRECT E X E C U T E D BY:



                                                          D f r B B I E S M I T H - SCH#I 139 EXPIRES: 07/31/14
ADDRESS OF PROCESS SERVER:                                P.O. BOX 9057, G R E E N V I L L E , T X . 75404



                                              VERIFICATION

ON THIS D A Y D E B B I E S M I T H APPEARED BEFORE ME, A N O T A R Y PUBLIC, A N D BEING D U L Y SWORN BY
ME STATED T H A T H E / S H E HAS PERSONAL K N O W L E D G E OF T H E FACTS SET FORTH IN T H E FOREGOING
A F F I D A V I T A N D D E C L A R E D T H A T T H E PACTS C O N T A I N E D THEREIN ARE TRUE A N D CORRECT G I V E N
M Y H A N D A N D SEAL OF OFFICE T H I S               °\   D A Y OF F E B R U A R Y , 2012




                 EPHAN IE fi.STUBBLgflELD                           PUBLIC F O R f p STATE OF T
                                                                                              TEEXAS
                     Notary Public
                   STATE OF TEXAS
                My Comm. Exp. G-30-2012
   CiUk                                                                                                                      00213033-


                                                       TIE STATE OF TEXAS

                                                               No. C-0213033
                TARA BROOK TYNDELL
            VS. ZACHARY WILLIAMSON, ET A L




                                          of JEFFERSON COUNTY, TEXAS

  To: J O H N N O W E L L
      SERVE WHEREVER HE MAYBE                      ftH'ND

  bv -serving at




  Respondent in the hereafter styled and nurak ?d cause:


          You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who
  „ ued th,s e,auon h> 10:00 a.m. on the Monday next following the expiration of twenty days after Y O U were served tins ci tat, on and
  ? X               J
                      f     n^      T ^ f ? ^ u t * " ' ^ ^ ^ ^ B e t ^ y m a i l i n g s ™ to: District Clerk's Office. 1001
                                                        5




    , a n * 2 floui B « u m o m I X 7 / / U i , or by bnngmg it to the office. Our office address fe 1! 49 Pearl St. and we are located on
   h e ^ o n d t l o o r o f the ongmal courthouse building. The case is presently pending before the 317th Family District Court o f
  t e f l o n t ounty smmg ,n BeaumonL Texas, is cause number C-0213033 and was filed on the 2nd dav o f August, 2011. The style o f


           TARA BROOK T Y N D E L L                                                                                              PLAINTIFF
           VS.
           ZACHARY WILLIAMSON, E T A L

                                                                                                                             RESPONDENT
           O R I G I N A L P E T I T I O N FOR D I V O R C E



          -KS'sssSkSrA"™'**""""""" '"• ""'*• - » ' -
 ISSUED and G I V E N under my hand and the ,eai of said court at office, this the 27th day of May, 2015.



                                                                  JAMIE S M I T H , D I S T R I C T C L E R K
                                                                  JEFFERSON C O U N T Y , T E X A S



                                                                                                                   ...   „, Deputy
 I'OPPS. T O N Y A C O N N F I . L
2b 1 s C A L D E R A V E , SUITE 400
BEAT IMONT, T X 77702 0000
                                                                                        m:Lmc>r.s.ERyiCH
        C-0213033                                  3 1 7 t h JUDICIAL DISTRICT COURT
        TARA BROOK TYNDELL
        ZACHARY WILLIAMSON, ET AL
        Executed vvlien etipy was delivered:                                                                                                       -
        Thiys.a iruc copy ofthe origmal citation, was delivered to defendant _ -                                                                       HQi]                '^"'i i>1 , on the £ 2 ? ' / day of

                                                                                                                                                                                               , Officer



    ADDRESS FOR SERVICE:
    JENNIFER NOWELL
    SERVE WHEREVER SHE MAY Ub FOUND


    . 0
                                                                                            O F F I C E R ' S RETURN
                     ii ihc
    \ ,\mc}\, \\w-i on   tnc                7 } j? day
                                                   any of     I'l         lc
                                                                                                              and executed in
                                        , luxaj* hv delKi-rmg to each at the within named defendants m person,
                                                                                                        perso a true copy of this Citation
    wirfi the date of delivery endorsed i hereon, together with th                           1 6
                                                                   accompanying copy of the Citation at the following times, and places, to-w
                                                                                                                                               Place, Course and.Distance from Courthouse


    And not executed as to the defendants),

    The diligence used in finding said defendant!s> being:


    and ihc cause or failure lo execute tins process vs:


    : m d     x h c
                          '"formation feeeivtd its to the whercabouis of .said defendants; being:

FEES;
Serving Petition and Copy $
Total                                          %
                                                                                                                                                                                    Officer
                                                                                                                                                                               County, Texas

                                                                                                                                         By;                                          Deputy

                                                                                                                                         Affiant

,   t                                                                                                                                              C O N S T A B L E . Oft n     F P . O P H F COURT
                                                                                                                                                                                         T




sjgu^d tinner penally oi perjury and contain the following statement:
        M >   n   a   n   W       M                                                     m    v     d i i t s   o   f   b j r t i l
'                             '           —     "                   ---        -       • -                                           «                    ,              and my address is
                                      (First, Middle, Last)

(Street, City, Zip)    """         """""
I DECLARE [ IN DER PENALTY OF PERJURY TF y'T THF FORGOING IS TRUE A N D CORRFC

Executed in                                         , County, State of             — ~ _ _ > on the                                  ^         day of.


                                                                                                                                     DeciaranEAuthoim-d Process Server


                                                                                                                                     (Id it expiration of certification)
      CU IUK                                                                                                                                                                                                                    D0213033-00039


                                                                                            THE STATE OF TEXAS

                                                                                                                           No. C-0213033
                                        TARA BROOK TYNDELL
                                    VS. ZACHARY WILLIAMSON, ET A L

                                                                                                                                   CITATION

                                                                       317th J U D I C I A L DISTRICT COURT
                                                                        of JEFFERSON COUNTY, TEXAS

  To: J E N N I F E R N O W E L L
      SERVE W H E R E V E R S H E M A Y B E F O U N D

  bv serving :it




  Respondent in the hereafter siykd and numbered cause:

                              Y     U                                           empl       y an
  •                  A    ,, ° ,              ^To'nf'a m °
                                                               Y   U
                                                                     >'n
                                                                           T   e M
                                                                                       °
                                                                                     nua   Vnext
                                                                                                      m
                                                                                                          °™ -     y
                                                                                > ' do not ftie a written answer with the clerk who
                                                                                                                                   U       y       0   U   o r   o u r a t t 0 P n e



 '    S S
      .     t
                U
               " i  C d   , h , S       1 1
                                               J           - ',° * ° -                                        f o l i o w i n
                                                            8 ^ expiration of twenty days after you were served this citation and
 pennon, a default judgment may be taken gainst you. Said answer may be filed by mailing same to; District Clerk's Office 001
 Pearl fcu 2 floor Beaumont, I A 7 77U1. or by bringing tt lo the office. Our office address is 1149 Peari St and w e a r j ^ d                                                                                                            o   n


   he second floor ot the Png.mil courthouse building. The case is presently pending before the 317th f a m i l y S i    Com of
     fcrson County s.tung m Beaumom, Texas, fa cause number C-0213033 and was filed on the 2nd day               g                  of                                                                            ofL Sl^tyic

                               i'ARA BROOK T Y N D E L L                                                                                                                                                                          PLAINTIFF
                              VS.
                              Z A C H A R Y W I L L I A M S O N , ET A i

                                                                                                                                                                                                                             RESPONDED
                              O R I G I N A L P E T I T I O N FOR D I V O R C E


 division                           o   ^      ~   ^



 with a u t h o r i t y ^               consent to     l h e   cbilk t d ^ t S -                  a   h   n    w       ,   j   M
                                                                                                                                   *   ,       !
                                                                                                                                                       * ^ r m u u a . o n of paternity and the appointment             of a conservator

 ISSUED and G I V E N under my hand and ihe seal o f said court at office, this
                                                                                                                                                                                       •27th day o f May, 2015.



                                                                                                                                                   J A M I E S M I T H , DISTRICT CLERK
                                                                                                                                                   JEFFERSON COUNTY, TEXAS


                                                                                                              BY
                                                                                                                                                                                                                          Deputy
TOi.PS, 1 0 N Y A C O N N E I 1
2615 CALDER A V E , SUITE 400
B E A U M O N T , TX 77702 0000
                                                                                                                                           'JRN OF SERVrCI
       C-0213033                                         317th JUDICIAL DISTRICT COURT
       TARA BROOK TYNDELL
       ZACHARY WILLIAMSON, ET A l .
       Lxecuied when copy was dehvered:
      This J§ a true copy ot ihc original citation, \*as dchvcied to defendant
                                                                                                                                                                                                                               the czLJ.. day of

                                                                                                                                                                                                                                           Officer
                                                                                                                                                                                                                             , County, Texas
                                                                                                                                                                                                                        .„.„__„,„          , Deputy
      ADDRESS FDR SERVICE:
      JENNIFER NOWELL
      SERVE WHEREVER SHE MAY BE FOUND




                                                                                                                       OFFICER'S RETURN
      Cttme to hand on the                        ? i day of _ „ i}j£^
                                                                 . 20 j £ , at                            AZm., and executed •»                                  Jli^STjj^o'ciock
„         Zf£ft£fJrQ.
        > h ti ,t , ,                   ,                oum
                                                  -V >'', - "' «       8
                                                                        le   x!   i,y
                                                                                          J e , | / e n n       t o    e       h   o   f
                                                                            within named defendants in person, a true copy of ihis Citation    t i i e



j     vntn .he date ot delivery endorsed thereon, together with the accompanying copy ofthe Citation at the foilow.ng times and places, io-w,t:
l|       Um
       ^ ^TA                    b       r\       \ \ \     x       \t
                                                                              D a t e /
                                                                                          Z    l m e
                                                                                                       n    _          ,_                                                        Place, Course and Distance from Courthouse
       ^-^^IiIJ^^lIL.                                                         „                             7-15 _ _                                                                   3_j7f4\                           fio f-
                                                                                                                                                                                                                              ur                             _

      And nut executed as to the deiendantfsj.

      The diligence used in finding said defendants) being:

      and ihe cause or failure to execute this p i o c e « is


              die mfotman'on received .ts to the whereabouts of said dcfendani(s) being;

      FEES:
      Serving Pennon and Copy S
     Tout                                            %
                                                                                                                                                                                                             _..„       , Officer
                                                                                                                                                                                                            ., County, Texas


                                                                                                                                                                                                              „         ^ Deputy

                                                                                                                                                                          AfEani


                       ^            "        ^       ^             ^                                                                                                               —                 - e,Rm n nnr r r r m r 1 I H I . I •
     ,=nut ,„ ,1u> be verified. If the return „ ^
                 reu       re                                                                   cd bv a r * r s o n 1 ,                                  T '7                r     P
                                                                                                                                                                                        '° IT"" * «-» **       f    e
                                                                                                                                                                                                                                     return. T i c stgnaure
                                                                                                                                                                                                                                    retu             a   b
     ,gncJ under penalty or perjury d e „ „ , a ,          l l n                  n                         ffi^ffl^                                                             " "        °'               ° *        «««•          ™     * » =

     "My name is                                                                                                                       < * ru- ,
                                                                                                                 m >               dalC                  b i r t i ! 18
                                ~(Ti^iiiiUc;                       U^tJ"*-"                                                '                      0 t
                                                                                                                                                                          - —               —    —»           my address is
     fSticet, City, Zip)                                                '~~~~                    ~~               "™———                                      — — —                     ——        .                       _
     « DECLARE UNDER PENALTY O f PERJURY
                           County, State o f T H A T T H E FORGOING
                                                            |       IS TRUE A N D CORRECT,
                                                                                                                           t o n           t     ) c

                                                                         yo!
     Executed in


                                                                                                                                                                                                 Process Serv.


                                                                                                                                                                    (Id ff expiration of certification i
10.     Division of Community       Property

        Petitioner believes Petitioner and Respondent w i l l enter into an agreement for the division

ol'their estate. If such an agreement is made, Petitioner requests the Court to approve the agreement

am! divide their estate in a manner consistent with the agreement. If such an agreement is not made,

Petitioner requests the Court to divide their estate in a manner that the Court deems just and right,

as provided by law.

//.      Prayer

        Petitioner prays that citation and notice issue as required by law and that the Court grant a

divorce and ult other relief requested in Ihis petition.

        Petitioner prays for general relief.

                                                Respectfully submit led,


                                               SMITH § S H I P L E Y LAW       r   ^
                                               Attorneys at Law                           g7
                                               2750 IH-10 East, Sk
                                               Beaumont, Texas 77701
                                               Tel; (409) 8994046
                                               Fax; (409) 899-2648



                                                By i . y O
                                                   ;           —-S"-/'     :


                                               B R U C E N . SMITH
                                               State Bar No. 1$543300
                                               Attorney for Petitioner
                                                                                                                                                                                                                                                DC213033—00039

                                                       THE STATE OF TEXAS

                                                              No. C-0213033
                TARA BROOK TYNDELL
            VS. ZACHARY WILLIAMSON, ET A L

                                                               CITATION

                                         317th JUDICIAL D I S T R I C T COURT
                                          of JEFFERSON COUNTY, TEXAS
  To: JENNIFER NOWriX
      S E R V E W H E R E V E R SHE M A Y BE FOt

  by serving at




  Respondent in the hereafter styled and numbered cause:




                                                                                                                             1 C e              $           , s       1   1   4   9   p c a r I   & t          a   n   d
 the second floor of the original courthouse builditw          ^L17-                           ,,                   °"               7 ,             *                                                  -                        wc are located on




          T A R A BROOK T Y N D E L L                                                                                                                                                                                                                PLAINTIFF
          VS.
          Z A C H A R Y W I L L I A M S O N . ET A i

                                                                                                                                                                                                                                            RESPONDENT
          ORIGINAL PETITION FOR DIVORCE

          Tiie court has the authority in this suit to enter any iudemem ofdwrw*                                          HtccAiHn..                  *u
                                                               J       g                                                d , S ! > 0 , V , n 8       t h e   m     a       m   a       e
 division o f p r o p e r winch m\\ be binding on you.                                                                                                                            S        ™* Providing for the

         The court has the authority in this suit to enter any judgment or decree m the child'-, i n f ™ wh;,h „,!<i »    «•
                                                                                                                                                                                                            W , ! I        b t    b , n d , n    u   OE
you, including the termination ofthe parent-child relation/lib the d e t e r m i n a t i o n n f >  f u                     S P >
                                                                   P       d   a   u   ,   i   m    a   t   ]   o   n
with authonty to consent to the child's adoption.               '       '           ofpawrnity and the appointment o f a conservator


ISSUED and G I V E N under my hand and the seal of said court at office, this the 27th day of May, 2015.



                                                                       JAMIE S M I T H DISTRICT (TrRK.
                                                                       JEFFERSON COUNTY, TEXAS


                                                         BY
                                                                                                                                                                                                                                       Deputy
TOUPS, T O N Y A C O N N E L L
2615 CALDER A V E , SUITE 4<
B E A U M O N T , T X 77702 0000
10.     Division of Community       Property

        Pensioner believes Petitioner and Respondent will enter into an agreement for the division

of their estate. If such an agreement is made. Petitioner requests the Court to approve the agreement

and divide their estate in a manner consistent with the agreement. If such an agreement is not made,

Petitioner requests the Court io divide their estate in a manner that the Court deems just and right,

as provided by law.

/ /.     Prayer

        Petitioner prays that citation and notice issue as required by law a i d that the Court grant a

divorce mid ail other relief requested ia this petition.

        Petitioner prays for general relief.

                                                Respectfully submitted,


                                                                                   :
                                               SMITH § SHIPLEY LAW            .;       '   _      /
                                               Attorneys at Law                            g."
                                               2750 IH-10 East, Sle. 200                     t'
                                               Beaumont, Texas 77701
                                               Tel: (409) 899-1046                           ^
                                               Fax: (409) 899-2648                           ~


                                                    /
                                               B R U C E N. SMITH
                                               Slate Bar No. 18543300
                                               Attorney for Petitioner
                                               NO,

     IN T H E M A T T E R O F                                   IN T H E D I S T R I C T C O U R T
     THE MARRIAGE O F

     TARA BROOK T Y N D E L L
     AND                                                                JDICIAL D I S T R I C T
     ZACHARY WILLIAMSON

     AND IN T H E I N T E R E S T O F
     K     T       W                          A
                                                          §     JEFFERSON COUNTY, TEXAS
     CHILD

                                       ORIGINAL PETITION F O R D I V O R C *
 /.            Discovery       Level

               Discovery in this case is intended to he conducted under level 2 of rule 190 ofthe Texas
 Rules o f Civil Procedure.

2.              Parties

               This suit is brought by TARA BROOK T Y N D E L L , Petitioner. The last three numbers o f
 1 A   R   A
               BROOK T Y N D E L L ' s driver's license number are      The last three numbers of T A R A

BROOK T Y N D E L L ' s Social Security number are

               ZACHARY W I L L I A M S O N is Respondent.

               JENNIFER A N D JOHN NOWELL. maternal great-aunt and greai- uncle of tiie child subject
ofthis suit.

 3.             Domicile

               Petitioner has been a domiciliary of Texas for the preceding 4x-month period and a resident

of this county for the preceding ninety-day period.

4.              Jurisdiction

                          th
               The 196 Judicial District Court of Hunt County, Texas has continuing jurisdiction ofthe

ehild the subject ofthis suit. The proper request to transfer this matter is this date being made,

5.             Service

               Process should be served on Zachary Williamson where ever he maybe found.
