                                                                                               ACCEPTED
                                                                                           03-14-00117-CV
                                                                                                   6459633
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                     8/12/2015 11:05:42 AM
                                                                                         JEFFREY D. KYLE
                                                                                                    CLERK
                               NO. 03-14-00117-CV

NASH JESUS GONZALES and                §                       FILED IN
                                              IN THE COURT OF APPEALS
                                                              3rd COURT OF APPEALS
GONZALES & GONZALES, P.C.,             §                           AUSTIN, TEXAS
    Appellants                         §                      8/12/2015 11:05:42 AM
V.                                     §      THIRD               JEFFREY D. KYLE
                                                       JUDICIAL DISTRICT
                                                                       Clerk
                                       §
MARISSA ANN GONZALES                   §
    Appellee                           §      AUSTIN, TEXAS

      APPELLEE MARISSA ANN GONZALES’ REPLY TO APPELLANTS’
                 RESPONSE TO MOTION TO DISMISS

TO THE HONORABLE COURT:

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

Appellants’ Response to Appellee’s Motion to Dismiss and respectfully shows the

Court as follows:

      In the trial court Nash sought a residency restriction limiting the residency of

the children to Travis County. Nash complains in this appeal that the residency

restriction should have been limited to Travis County or New York (but in any

event not to the State of Texas as found by the jury). He claims there was no

evidence supporting a restriction to the State of Texas.         If Nash’s appeal is

successful, on remand a jury would consider a residency restriction of Travis

County or New York.

      Simultaneously, Nash seeks an order from the Collin County District Court

restricting the children’s residency to Collin County, where the parties all currently

                                                                                Page 1
live. Collin County is not Travis County and is not New York. The conflict

created by Nash’s SAPCR suit filed while this appeal is pending is that simple.

        Nash argues in his response that Marissa has ignored other issues in the

appeal. To the contrary, Marissa clearly states in her motion that there is no longer

a controversy in the Court of Appeals “with regard to the geographic restriction of

the children and such issue should be dismissed as moot.” Marissa also states the

contradictory relief sought by Nash “divests this Court of jurisdiction over that

issue.” Marissa is only asking the Court of Appeals to consider Nash’s waiver and

contradictory position with regard to the geographic restriction because it is the

only geographic restriction that Nash seeks to alter in the Collin County SAPCR

suit.

        Nash also argues that Marissa misunderstands the relief requested in this

Court as a rendition of judgment.     The Motion to Dismiss does not mention or

even contemplate a rendition of judgment. In any event, that is not the relevant

analysis to the jurisdictional issues before this Court.    The relevant analysis is

Nash’s affirmative request for relief in the district court that moots any relief that

would otherwise come from this Court. The relevant analysis is also the focus on

the contradictory outcomes of the ultimate relief sought by Nash- which is a

geographic restriction to Travis County on the one hand and Collin County on the

other. He asks for both and both are not possible.
                                                                                Page 2
      Nash argues his request for the Collin County restriction compliments his

request for the Travis County restriction.        If anything, a restriction in Collin

County compliments the jury’s finding that the restriction should be limited to the

State of Texas, but at a minimum it highlights the conflict created by his SAPCR

suit. If Nash is successful in this appeal and the case is remanded, the end result

will be a judgment limiting the residency restriction to either Travis County or

New York. There is no possibility of a judgment restricting the parties to Collin

County on remand. Contrary to Nash’s statement in his Response, a retrial would

occur in Travis County, where the judgment at issue was rendered, and a jury

would not consider Collin County as an option. Nash’s very point in this appeal is

that the only evidence supporting a geographic restriction in the trial court was for

Travis County or New York.          There certainly was not evidence presented to

support Collin County.

      Another possibility, not discussed by Nash, is this Court will affirm the

judgment of the trial court (as requested by Appellee) thus establishing the

geographic restriction as the State of Texas.        The point is, regardless of this

Court’s decision, an order from the Collin County District Court limiting the

geographic restriction to Collin County clearly contradicts any possible geographic

restriction that could result from this appeal.


                                                                                Page 3
      Nash argues that merely requesting that the geographic restriction be

modified in his SAPCR suit does not divest this Court of jurisdiction. To the

contrary, Nash is essentially asking a district court to modif3r the very order that he

is simultaneously asking this Court to review. Put simply, Nash is attempting to

take two bites at the apple by appealing the order while simultaneously seeking

modification of the same order in a new and separate district court suit. This

necessarily divests this Court ofjurisdiction.

      For the reasons discussed above, Appellee Marissa Ann Gonzales

respectfully requests that the Court grant her Motion to Dismiss.

                                 Respectfully submitted,

                                 SAVRICK, SCHUMANN, JOHNSON, MCGARR,
                                 KAMINSKI & SHIRLEY, LLP


                                                           tifl
                                 C     ilson Shirley III
                                 State Bar No. 00795647
                                 Jessica Marcoux Hall
                                 State Bar No. 24046348
                                 The Overlook at Gaines Ranch
                                 4330 Gaines Ranch Loop, Suite 150
                                 Austin, Texas 78735
                                 512-347-1604 Phone
                                 512-347-1676 Facsimile
                                 Email:        wilson@ssj miaw. corn
                                 Email:       jessica(ssjmlaw.com

                                 ATTORNEYS FOR APPELLEE
                                 MARISSA ANN GONZALES


                                                                                 Page 4
                       CERTIFICATE OF SERVICE

     I certify that a true and correct copy of this Motion for Substitution of
Counsel has been served on the following via the Efile system on this 12
                                                                      th
                                                                         day of
August, 2015:

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


                                          4es ica Marcoux   all




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