                                                                                            ACCEPTED
                                                                                       01-14-00082-CV
                                                                             FIRST COURT OF APPEALS
                                                                                     HOUSTON, TEXAS
                                                                                 3/13/2015 12:00:34 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                CLERK

                             No. 01-14-00082-CV

                                                                      FILED IN
                                   IN THE                      1st COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                               3/13/2015 12:00:34 PM
                        FIRST COURT OF APPEALS                 CHRISTOPHER A. PRINE
                                                                        Clerk

                           AT HOUSTON, TEXAS


                     MARY LYNN KANTARA GERKE

                                  Appellant,

                                      v.

                        JAMIL “JAMES” KANTARA

                                  Appellee.


                   Appealed from the 311TH District Court of

                          Harris County, Texas


                           APPELLEE’S BRIEF
________________________________________________________________________

                                    Wilfried P. Schmitz
                                    Texas Bar No. 17778700
                                    17040 El Camino Real, Suite 400
                                    Houston, Texas 77058
                                    Tel: (281) 486-5066
                                    Fax: (281) 486-2041
                                    court_documents@schmitzlaw.com
                                    Attorney for Jamil “James” Kantara

                      ORAL ARGUMENT WAIVED



                                       i
                    TABLE OF CONTENTS

STATEMENT OF ORAL ARGUMENT………………………………………….v


REFERENCE GUIDE……………………………………………………………...v


INDEX OF AUTHORITIES……………………………………………………...vii


STATEMENT OF FACTS…………………………………………………………1


SUMMARY OF ARGUMENT…………………………………………………...13


ARGUMENT AND AUTHORITIES.……………………………………..……..14


Reply to Issue I:………………………………………………………….………..13

   I.   Response to Brief of Appellant’s Issue No. 1: The
        trial court’s final “Order in Suit to Modify Parent-
        Child Relationship” did not violate Mary’s due
        process rights………………………………………………………...14

        Ia. –Ic. Mary Failed To Preserve Error……………………………..14

        I.1    The Court Did Not Modify Items 1, 2, 3, 4,
        5, 8, 13 and 14……………………………………………………….16

        I.1a. Item 1 – The Court did not Modify Mary’s
        right to receive information from the other
        conservator of the children but only stated the
        method of information transmittal…………………………………..16


        I.1b. Items 2, 3, 4, 5 and 8 - Removal of the after
        consultation requirement and insertion of

                                     ii
         communication through OurFamilyWizard
         requirement did not modify the 2010 Order………………………...18

         Ie. Changing Beginning and Ending Times of
         Mary’s Week-end Visitation Did Not Modify the
         2010 Order and If It Did, the Issue Was Tried By
         Consent………………………………………………………………22

         1.1c. Removal of Mid-Week Visitation……………………………..25


Reply to Issue II:…………………………………………………………………..13


   II.   Response to Brief of Appellant’s Issue No. II: The
         trial court did not abuse its discretion when it
         ordered Mary to pay $50,000.00 in attorney fees
         and if it was error, it was invited error………………………………25

         IIa. Response to Brief of Appellant’s Issue No.
         11a: The trial court did not abuse its discretion
         when it ordered Mary to pay $50,000.00 in
         attorney fees…………………………………………………………27

         IIb. Response to Brief of Appellant’s Issue No.
         IIb: The evidence is legally and factually sufficient
         to support a finding that Mary’s suit was frivolous
         or designed to harass James…………………………………………32

         IIc. Response to Brief of Appellant’s Issue No.
         IIc: The evidence is legally and factually sufficient
         to support the court’s finding that $50,000 is a
         reasonable amount in attorney’s fees………………………………..27

         IId. Response to Brief of Appellant’s Issue No.
         IId: The trial court’s alleged errors regarding the
         fourteen modifications did not affect the attorney
         fees determination…………………………………………………...34



                               iii
     III.   There is no requirement attorney fees awarded
            under Tex. Fam. Code §156.005 be reasonable………………..……36




PRAYER………………………………………………………………………….37


CERTIFICATE OF COMPLIANCE……………………………………………...38


CERTIFICATE OF SERVICE………………………………………………........39


APPENDIX 9 – Order for Counseling


APPENDIX 10 – Jamil “James” Kantara’s Response to
    Mary Lynn Gerke’s Motion for Relief from the
    Order to Carry Secondary Insurance and for the
    Court to Select a Preferred Provider and Order XXXX
    to Counseling and Request for Attorney Fees


APPENDIX 11 – Temporary Order on Mary Lynn Kantara
    Gerke’s Motion for Relief from the Order to Carry
    Secondary Insurance and for the Court to Select
    A Preferred Provider and Order XXXX to Counseling


APPENDIX 12 – Letter to Mary Gerke regarding Health
    Insurance Premiums


APPENDIX 13 – Motions Filed by Mary Gerke




                                     iv
                       Waiver of Oral Argument

Appellee waives any request for oral arguments.




                       Reference Citation Guide

The Parties


Appellant, Mary Lynn Kantara Gerke                 “Mary”
      Petitioner in trial



Appellee, Jamil “James” Kantara                    “James”
      Respondent and Counter-petitioner in trial



The Record on Appeal


Clerk’s record                              “CR __” (page number)
      (filed February 26, 2014)

Reporter’s Record Vol 1                     “RR1 __” (page number:line)
      (filed February 24, 2014)

Reporter’s Record Vol 2                     “RR2 __” (page number:line)
      (filed February 24, 2014)

Reporter’s Record Vol 3                     “RR3 __” (page number:line)
      (filed February 24, 2014)

Reporter’s Record Vol 4                     “RR4 __” (page number:line)
      (filed February 24, 2014)

                                        v
Reporter’s Record Vol 5                “RR5 __” (page number:line)
      (filed February 24, 2014)

Reporter’s Record Vol 6                “RR6 __” (page number:line)
      (filed February 24, 2014)

Reporter’s Record Vol 7                “RR7 __” (vol: page number)
      (filed February 24, 2014)

Reporter’s Record Vol 8                “RR8 __” (vol: page number)
      (filed February 24, 2014)

Reporter’s Record Vol 9                “RR9 __” (vol: page number)
      (filed February 24, 2014)

Reporter’s Record Vol 10               “RR10 __” (vol:page number)
      (filed February 24, 2014)

Reporter’s Record Vol 11               “RR11 __” (vol:page number)
      (filed February 24, 2014)

Reporter’s Record Vol 12               “RR12 __” (vol:page number)
      (filed February 24, 2014)

Reporter’s Record Vol 13               “RR13 __” (vol:page number)
      (filed February 24, 2014)

Reporter’s Record Vol 0                “RR0 __” (vol: page number)
      (filed October 30, 2014)




                                  vi
                         Index of Authorities

Cases


Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812 (Tex. 1997)……………………………………………………...30

Bailey v. Rodriguez,
351 S.W.3d 424 (Tex. App.--El Paso 2011)………………………………………28

Cunningham v. Parkdale Bank,
660 S.W.2d 810 (Tex. 1983)…………………………………………………......15

Davis v. Huey,
571 S.W.2d 859 (Tex. 1978)……………………………………………………...29

Diamond v. Soucie,
239 S.W.3d 428 (Tex. App.—Dallas 2007, no pet.)……………………………...30

Farish v. Farish,
921 S.W.2d 538 (Tex. App.-- Beaumont 1996, no writ)………………………….27

Flowers v. Flowers,
407 S.W.3d 452 (Tex. App.--Houston [14th Dist.] 2013)………………...20, 21, 24

Greene v. Young,
174 S.W.3d 291 (Tex. App.--Houston [1st Dist.] 2005)………………………….24

Hirczy v. Hirczy,
838 S.W.2d 783 (Tex. App. – Corpus Christi 1992, writ denied…………………15

Holley v. Holley,
864 S.W.2d 703 (Tex. App.—Houston [1st Dist.] 1993, writ denied)………...28, 29

In re A.B.P.,
291 S.W. 3d 91 (Tex. App.—Dallas 2009, no pet.)………………………………30



                                     vii
In re B.L.D.,
113 S.W.3d 340 (Tex. 2003)……………………………………………………...16

In re D.S.,
76 S.W.3d 512 (Tex. App.—Houston [14th Dist.] 2002, no pet.)……………...….28

In re Hanker,
2013 Tex. App. LEXIS 7705 (Tex. App.--Houston [1st Dist.] June 25, 2013)......31

In re TMT Trailer Ferry, Inc.,
577 F.2d 1296 (5th Cir. 1978)……………………………………………………..31

In the Interest of Pecht,
874 S.W.2d 797 (Tex. App.--Texarkana 1994, no writ)………………………….28

Mansions in the Forest, L.P. v. Montgomery County,
365 S.W.3d 314 (Tex. 2012)……………………………………………………...16

Mattox v. Jackson,
336 S.W.3d 759 (Tex. App.--Houston [1st Dist.] 2011)………………………….29

McGuire v. McGuire,
4 S.W.3d 382 (Tex. App.—Houston [1st Dist.] 1999, no pet.)……………………28

McMahon v Zimmerman,
433 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2014)………………………….31

Protect Envtl. Servs. v. Norco Corp.,
403 S.W.3d 532 (Tex. App.—El Paso, 2013, pet denied)………………………...31

Pirtle v. Gregory,
629 S.W.2d 919 (Tex. 1982)……………………………………………………...16

Primrose Operating Co. v. Nat’l Am. Ins. Co.,
382 F.3d 546 (5th Cir. 2004)………………………………………………………31

Ragsdale v. Progressive Voters League,
801 S.W.2d 880 (Tex. 1990)……………………………………………………...31



                                       viii
Smith v. Patrick W.Y. Tam Trust,
296 S.W.3d 545 (Tex. 2009)……………………………………………………...31

Sterling v. Alexander,
99 S.W.3d 793 (Tex. App.--Houston [14th Dist.] 2003. pet. denied)……………..33

Tittizer v. Union Gas Corp.,
171 S.W.3d 857, (Tex. 2005)……………………………………………………..27

Walker v. Packer,
827 S.W.2d, 833 (Tex. 1992)……………………………………………………..28

Wolters v. White,
659 S.W.2d 885 (Tex. App.—San Antonio 1983, writ dism’d)…………………..27

Worford v. Stamper,
801 S.W.2d 108 (Tex. 1990)……………………………………………………...28




Statues


Tex. Fam. Code §106.002………………………………………...13, 26, 27, 31, 36


Tex. Fam. Code §153.073………………………………………………...16, 18, 19


Tex. Fam. Code §153.132………………………………………………….5, 14, 19


Tex. Fam. Code §153.312………………………………………………...22, 23, 25


Tex. Fam. Code §156.005…………………………………….13, 26, 27, 31, 33, 36




                                    ix
Rules


Tex. R. App. P. 33.1(a)(1)(A)……………………………………………………..15


Tex. R. App. P 38.1(h)…………………………………………………………….33




                          x
TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS:


       Comes now, Jamil “James” Kantara (“James”) and submits this his

Appellee’s Brief. Appellant is Mary Lynn Kantara Gerke (“Mary”).




                            STATEMENT OF FACTS

       On May 11, 2011, Appellant, Mary, filed her suit for modification (RR4_

71:16-17) against James seeking to modify a prior modification order dated April

15, 2010 (hereinafter the “2010 Order”).1 2

       Trial began in October 2012 and ended in August 2013. On October 28,

2013, the Court entered its order (hereinafter the “2013 Order”).3 This is an appeal

from the 2013 Order. 4

1.     An Overview Of The Parties’ Co-parenting From The Date Of The 2010
       Order Through The Date Of Trial.

       a.      Consultation Regarding the Children’s Medical Providers

       Consultation between the parents regarding the children’s medical providers

was impossible. Mary was an impediment to obtaining medical providers for the

children. (RR8_75:24-76:6) The acrimony between Mary and James was so

1
  Brief of Appellant Appendix 3
2
  Note: Mary filed her Petition to Modify one year after the 2010 Order.
3
  Brief of Appellant Appendix 2
4
  James agrees at the time the trial court entered its judgment in this case, only three of
  the children were still the subject of this suit. Presently, only two of the children are
  under the age of eighteen and subject to the Order.
                                           -1-
horrific, it was affecting the pediatrician’s ability to provide healthcare for the

children. (RR6_29:21-30:22) James was unable to take the children to counselors

or psychologists without Mary bombarding the counselor or psychologist with

derogatory comments about James. (RR4_46:18-47:2) When James communicated

to Mary about the children’s medical appointments, Mary referred to James as Mr.

Munchhausen. (RR7_22:22-25) James was unable to obtain counseling for JK4

because of Mary’s interference. (RR4_45:19-47:20)



      b.     Complaints Filed Against the Children’s Medical Providers

      When James sought medical evaluation or treatment for his children,

complaints were filed against the children’s medical providers. (RR7_83:5-84:4)

Many of the children’s medical providers refused to provide treatment for the

children after receiving complaints or strongly worded letters from Mary.

           i. Dr. Linda Ewing-Cobb with the UT Medical Group made an

             assessment on JK4, the youngest child, regarding his special needs.

             (RR4_46:10-11) Mary filed a complaint against Dr. Ewing-Cobbs

             with the Medical Board. (RR4_61:18-62:6) (RR5_21:10-22:4) Dr.

             Ewing-Cobb refused to further treat the children after Mary filed a

             complaint against her. (RR4_45:21-46:18)




                                    -2-
     ii. Dr. Michael Monmouth, JK2’s orthopedist, informed James a

          complaint was filed against him after JK2’s successful surgery.

          (RR3_54:22-55:6)    Mary denies she filed the complaint, but she

          suspects the complaint was filed by her boyfriend, Dr. Gerber.

          (RR7_29:23-30:12)

iii.      Dr. Martha Kennedy, a noted child psychologist, would not see or

          treat the children after receiving strong-language emails from Mary.

          (RR3_84:22-85:20)

iv.       Dr. Hope Moser, a Ph.D. nurse practitioner, refused to provide any

          more assistance to the children because she felt she was being

          harassed and abused and her professional and personal capacity was

          being attacked. (RR8_5:20-8:11)

 v.       Dr. Kit Harrison, a child psychologist hired by James to evaluate the

          children, wasn’t going near the children to evaluate them unless James

          sought specific court protection from Mary. (RR6_63:1-6)



c.        Mary’s Interference with the Children’s Education

     i.   Mary complained about and had the elementary school diagnostician

          removed from the children’s care. (RR3_93:21-94:14)




                                 -3-
 ii.   Mary attempted to make changes to the children’s school schedules

       even though James had the exclusive right to make educational

       decisions. (RR3_19:13-21:6)

iii.   Mary interfered with James’ exclusive educational rights by telling

       school officials they are required to confer with Mary before making

       decisions regarding the children. (RR3_34:3-11)

iv.    Mary threatened James to go to court if James changed the school the

       children attended. (RR3_36:14-37:12)


d.     Mary’s Harassment of James.

  i.   Mary told the children’s school James was not feeding the children.

       (RR7_11:12-12:16)

 ii.   Mary called the police and told them James had weapons in the house

       (RR6_80:13-22) because she felt he may have weapons in the house.

       (RR6_81:7-21)

iii.   Mary told the child’s physician JK1 was not being fed. (RR6_85:25-

       86:2)

iv.    Report made to CPS James was abusing the children. (RR7_13:13-

       14:2)

 v.    Report made to CPS James was sexually abusing his daughter

       (RR7_14:18-25).
                             -4-
       vi.    Report made to CPS James had a history of psychological and

              physical violence. (RR5_104:1-3)

       vii.   Mary did not recall reporting to school personnel the children had

              hygiene problems, but Mary sent shampoo and other hygiene items to

              the school nurse for the children. (RR7_15:20-16:24)

      viii.   Mary refused James permission to obtain the children’s passports

              claiming “good cause.” (RR3_66:2-15) When questioned why, Mary

              responded because James is of Lebanese descent. (RR5_74:11-15)

2.     Mary’s Requested Relief: An Overview

       Mary, in her appellate brief, lists only nine (9) of her requested

modifications.5      Mary fails to remember all the modifications she requested.

Mary’s Fourth Amended Petition to Modify Parent-Child Relationship lists the

following contested issues.6    7



        9.2   Rights and Duties –

              Mary requested the following independent rights regarding the

              children under Tex. Fam. Code §153.132:

              (i)     right to designate the primary residence of the children;

              (ii)    right to receive child support for the support of the children;

5
  Brief of Appellant Pages 4, 5
6
  Brief of Appellant Appendix 5 Pages 3-7
7
  Please note some of Mary’s issues were already encompassed in the 2010 Order and
were not contested and Mary’s requested changes have been summarized for brevity.
                                        -5-
      (iii)   right to consent to medical, dental and surgical treatment

              involving invasive procedures;

      (iv)    right to consent to psychiatric and psychological treatment; and

      (v)     right to make educational decisions;



9.3.1 Non-Primary Conservator -

      Mary requested in the event she is not named as the conservator with

      the right to designate the primary residence of the children:

      (i)     She be granted expanded possession order with exchanges at

              school, including weekends and holidays which includes

              overnight mid-week possession.

9.4   Electronic Access –

      Mary requested unrestricted communications by electronic means

      with the children.

9.5   Passports and Foreign Travel –

      Mary requested removal of the passport provision and the children’s

      travel be limited to the United States.

9.6   Mary requested alternating weeks of summer possession.

9.8   Mary requested Court ordered counseling for all the children.




                               -6-
10.   Support -

      Mary requested termination of her child support obligation.

      10.1 Mary requested if she is named primary conservator, James pay

      child support; and

      10.3 Termination of her obligation to carry secondary health

      insurance on the children.

11.   Permanent Injunctions -

      Mary requested the following permanent injunctions against James:

      11.1 Enjoining James from obtaining passports for the children and

            from international travel with the children.

      11.3 Enjoining James from entering JK3’s bathroom when JK3 is

            present without JK3’s express permission.

      11.4 Enjoining James from biting the children.

      11.6 Require James to provide healthcare EOBs within ten (10) days

            of receipt.

      11.7 Enjoining James from punishing the children for reporting any

            concerns related to incidents with either parent to the other

            parent, or any counselor, teacher, CPS worker or other

            professional.




                             -7-
            11.8 Enjoining James from forcing the children to wait for him after

                  school or activities at his friends’ house.

            11.9 Enjoining James from changing the children’s schools.

      13.   Unreimbursed Healthcare Expenses of the Children -

            Confirmation of unreimbursed healthcare expenses in the amount of

            $1,549.93.

      14.   Costs Related to Violation of Court Orders -

            Mary requested James pay any past or future costs incurred by Mary

            related to violations of and/or failure to follow the Court’s order.

      15.   Amicus Fees -

            Mary requested James pay the amicus fees and costs.

      16.   Attorney’s Fees -

            Mary requested James pay her attorney fees.

      17.   Costs -

            Mary requested James pay her costs including any out-of-pocket

            expenses.

      In addition to the above, Mary requested additional specific modifications

during trial. (4RR_66:16-69:5) Specifically, Mary requested:

      a.    Summer vacation be split with 35 days to be divided into three parts

            to the non-primary parent;


                                    -8-
         b.     Electronic communication between the kids and both parents contain

                common parental controls and cell phones always allowed number

                and GPS;

         c.     James to bear the cost of JK4’s counseling with Dr. Brandon or in the

                alternative, usage of the preferred insurance providers and that the

                parents alternate taking JK4;

         d.     Clarity regarding usage of preferred providers and providing other

                parent with information and EOBs; and

         e.     Parties split the children tax exemption.

3.       The 2013 Temporary Modification Orders: An Overview

         a.     Counseling

         Mary states the Court ordered counseling for the children over the objection

of James.       Mary has misinformed this Court.            Mary refers to an Order of

Counseling dated April 9, 2013.          The Order was issued on the Court’s own

initiative under T.R.C.P. 204.4.8 (CR10) The Order provided James was to select

the psychologist or counselor to examine and evaluate and treat the children.

Neither party could call the counselor as a witness at trial and the psychologist nor

counselor’s records were protected from discovery. Each party was to pay one-

half of the cost.


8
    Appellee’s Brief Appendix 9
                                        -9-
       James selected Dr. Michael Brandon who had been treating JK4 for over six

months. Mary objected to the continued use of Dr. Brandon because he was not a

preferred provider under James’ medical plan. James explained to Mary, Dr.

Brandon’s total fees would be approximately equal to the insurance deductible

amount owed under his insurance. 9 CR15 The Court subsequently approved

counseling by Dr. Brandon.10 (CR27)

       b.     Secondary Health Insurance

       Mary states the Court relieved her of her obligation to carry secondary

health insurance on the children only after a contested hearing. This statement is

true as phrased but what Mary omits is the fact James had already agreed to release

her from her obligation to carry secondary health insurance as long as Mary

reimbursed his cost of the children’s health insurance premium. 11 CR21 The only

issue was what percentage of the cost of the children’s health insurance premium

was Mary going to pay. James wanted full reimbursement; Mary wanted to pay

nothing. The Court divided the cost of the children’s health insurance premium

between the parties.




9
   Appellee’s Brief Appendix 10
10
   Appellee’s Brief Appendix 11
11
   Appellee’s Brief Appendix 12
                                   - 10 -
4.      The Final Trial

        Mary, in her appellate brief, insinuates the Court granted the majority of

Mary’s requested relief and denied the majority of James’ requested relief. A

quick review of Mary’s requested relief will debunk this myth perpetrated by

Mary.

        The Court denied the following modifications requested by Mary:

        1.    the right to designate the primary residence of the children;

        2.    the right to collect child support from James;

        3.    the right to consent to medical, dental, or psychological treatment of

              the children;

        4.    the right to make educational decisions on behalf of the children;

        5.    expanded possession order with the children;

        6.    overnight mid-week possession;

        7.    unrestricted communication with the children by electronic means;

        8.    removal of the passport provision and enjoining James from applying

              for passports for the children;

        9.    limiting the children’s travel to the United States;

        10.   alternating weeks of summer possession of the children between the

              parties;

        11.   restricting summer vacation of the non-primary parent;


                                      - 11 -
         12.    continuing counseling for all the children;

         13.    permanent injunctions against James;

         14.    confirmation of unreimbursed health care expenses of the children;

         15.    require the children’s electronic communication contain parental

                controls and cell phones always allowed number and GPS;

         16.    parties to split the tax exemption for the children;

         17.    James pay 100% of the amicus fees; and

         18.    James pay attorney fees and costs.

5.       Attorney Fees: An Overview

         At the conclusion of the trial, Judge Newey told Mary on the record she had

been an obstructionist almost from the day following the hearing in the previous

case in Galveston. (RR8_136:19-137:5) The Court reiterated its obstructionist

finding in its Findings of Fact 8 12. Mary has made it abundantly clear to James she

is going to continue her obstructionist actions until she gets what she wants.

(RR8_88:2-14)

         At trial James’ counsel testified James had incurred attorney fees and

expenses in the amount of $103,811.93. (RR8_34:19-25) The court found in its

Additional Findings of Fact 4 and 5 Mary had frivolously filed her suit for




12
     Brief of Appellant Appendix 7
                                        - 12 -
modification and the suit for modification was designed to harass James 13. The

Court in its Additional Conclusions of Law 2 awarded reduced attorney fees under

Tex. Fam. Code §156.005 and §106.002 in the amount of $50,000.00, which the

court found to be reasonable and necessary. 14


                     SUMMARY OF THE ARGUMENT

         Reply to Issue I: The trial court’s final Order in Suit to Modify Parent-Child

Relationship did not violate Mary’s due process rights. Mary alleges fourteen

points of error with regard to modifications. Mary failed to preserve error on

thirteen of those points and thus waived error. In addition, if the court finds Mary

did not waive error, ten of Mary’s alleged modifications were not modifications

but merely clarifications to the previous Order.


         Reply to Issue No. 2: The trial court did not abuse its discretion when it

ordered Mary to pay $50,000.00 in attorney fees and if it was error, it was invited

error.




13
     Brief of Appellant Appendix 8
14
     Brief of Appellant Appendix 8
                                      - 13 -
                                      Argument & Authorities

I.        Response to Brief of Appellant’s Issue No. 1: The trial court’s final
          “Order in Suit to Modify Parent-Child Relationship” did not violate
          Mary’s due process rights.

          Ia. –Ic. Mary Failed To Preserve Error

          Mary argues the trial court made fourteen modifications 15 to the 2010 Order

which violated Mary’s due process rights, have no support in the pleadings, and

were not tried by consent. Mary failed to preserve error with respect to 1-11 and

13 -14.

          At the conclusion of the trial, the Court awarded James sole managing

conservatorship of the children. At the motion for entry of judgment/motion for

reconsideration, counsel for Mary pointed out there were no pleadings on file to

remove the parties as joint managing conservators. (RR9_15:16-19) The Court

sustained the objection and retained the parties as joint managing conservators;

however, the Court granted James additional exclusive rights regarding the

children. The Court asked counsel for Mary which rights she was specifically

worried about under TFC §153.132. (RR9_10:23-24) Counsel for Mary replied the

right to consent to marriage and enlistment, the right to represent the children in

legal actions, and the right to service and earnings of the children. (RR9_10:25-


15
     Brief of Appellant Pages 10-13
                                          - 14 -
12:6) Mary failed to specifically object there were no pleadings on file to support

the modified rights, thus waiving any error. In addition, Mary did not object to

alleged modifications 1, 2, 3, 4, 5, 8, 10, 11, 13 or 14. Appellee concedes Mary

did preserve with respect to alleged modification 12 regarding Mary’s mid-week

possession by specifically pointing out there were no pleadings on file requesting

Mary’s mid-week visitation be terminated.

       Mary cites Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812-813 (Tex.

1983) for the proposition the trial court erred in entering relief which was not pled

for.   Mary failed to preserve error, if any, because, unlike the appellant in

Cunningham, Mary did not specifically present her complaint to the trial court.

The Rules of Appellate Procedure require, as a prerequisite to presenting a

complaint for appellate review, the record must show that “the complaint was

made to the trial court by timely request, objection, or motion that stated the

grounds for the ruling that the complaining party sought from the trial court with

sufficient specificity to make the trial court aware of the complaint.” Tex. R. App.

P. 33.1(a)(1)(A); Hirczy v. Hirczy, 838 S.W.2d 783, 785 (Tex. App.--Corpus

Christi 1992, writ denied).

       In an effort not to mislead this Court, James acknowledges Mary filed a

Motion for New Trial, which generally stated the Court modified rights and duties

under Chapter 153 of the Texas Family Code. Mary failed to identify which


                                    - 15 -
modifications for which there no pleadings to support the relief granted. Mary’s

failure deprived the Court the ability to cure the alleged defect.

         A party should not be able to neglect to complain about an error at trial and

then surprise his opponent on appeal. Mansions in the Forest, L.P. v. Montgomery

County, 365 S.W.3d 314, 317 (Tex 2012), citing In re B.L.D., 113 S.W.3d 340,

350 (Tex. 2003) and Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982).

         This Court should deny Mary’s appeal regarding alleged modifications 1-11

and 13-14 for failure to preserve error.



         I.1     The Court Did Not Modify Items 1, 2, 3, 4, 5, 8, 13 and 14.

         I.1a. Item 1 – The Court did not Modify Mary’s right to receive
               information from the other conservator of the children but only
               stated the method of information transmittal.

         Tex.
         Fam.
         Code             2010 Order16                    2013 Order17
1      §153.073 Both parties had the right to      Mary has the right to
                receive information from any       receive information from
                other conservator of the           any other conservator of
                children concerning the health,    the children concerning
                education and welfare of the       the health, education and
                children                           welfare of the children at
                                                   the option of Jamil
                                                   “James” Kantara



16
     Brief of Appellant Appendix 3
17
     Brief of Appellant Appendix 2
                                      - 16 -
         During the two and one-half year interval between the 2010 Order and the

commencement of trial in 2013, James sent Mary over 2,000 pages of emails

informing Mary of the children’s health, education, and welfare. (RR8_98:23-

99:10) This amount averaged over 2 emails a day, 7 days a week, and 365 days a

year. The parties continually argued whether James was providing Mary sufficient

timely information concerning the children. In order to stop the bickering, the

court ordered James to provide information to Mary through OurFamilyWizard 18

and inform Mary in a timely manner of significant information concerning the

health, education and welfare of the children. 19 The court did not modify Mary’s

rights under the 2010 Order to: (i) access the children’s medical, dental,

psychological, and educational records; (ii) consult with physicians, dentists, or

psychologist of the children; (iii) consult with school officials concerning the

children’s welfare and educational status including school activities; (iv) attend

school activities; (v) be designated in the children’s records as the person to be

notified in case of emergency; (vi) consent to medical and dental treatment during

an emergency involving immediate danger to the health and safety of the children;



18
     Brief of Appellant Appendix 2 page 26
19
     Brief of Appellant Appendix 2 page 4
                                             - 17 -
and (vii) to manage the estate of the children to the extent the estates have been

created by Mary or her family. 20

       The trial court did not modify Mary’s right to receive information from

James concerning the children but only required the information be posted on

OurFamilyWizard. It is important to note neither party is appealing this method of

information exchange. The 2013 Order simply states James may, at his option,

provide redundant information concerning the children to Mary outside of

OurFamilyWizard.



       I.1b. Items 2, 3, 4, 5 and 8 - Removal of the after consultation
             requirement and insertion of communication through
             OurFamilyWizard requirement did not modify the 2010 Order



       Tex.
       Fam.
       Code             2010 Order21                    2013 Order22
2    §153.073 Both parties had the right to      Mary only has the right
              confer with the other parent to    to confer with the other
              the extent possible before         parent to the extent
              making a decision concerning       possible before making a
              the health, education and          decision concerning the
              welfare of the children            health, education, and
                                                 welfare of the children at
                                                 the option of Jamil
                                                 “James” Kantara

20
   Brief of Appellant Appendix 2 Pages 3 and 4
21
   Brief of Appellant Appendix 3
22
   Brief of Appellant Appendix 2
                                        - 18 -
3   §153.073 James had the exclusive right        James awarded exclusive
             after consultation with Mary to      right with option to
             consent for the children to          consult with Mary
             medical and dental care not
             involving an invasive procedure
4   §153.132 James had the exclusive right        James awarded exclusive
             after consultation with Mary to      right with option to
             consent to medical, dental and       consult with Mary
             surgical treatment involving
             invasive procedure
5   §153.132 James had the exclusive right        James awarded exclusive
             after consultation with Mary to      right with option to
             consent to psychiatric and           consult with Mary
             psychological treatment of the
             children
8   §153.132 James had the exclusive right to     James awarded exclusive
             make decisions regarding the         right to make decisions
             children’s education after           regarding the children’s
             consultation with Mary               education (i.e. no
                                                  obligation to consult with
                                                  Mary)



      The conflict between James and Mary has gone on for nine and a half years.

(RR8_87:14-21)      The prior modification 2010 Order granted James certain

exclusive rights with regard to the children but conditioned those rights upon

James consulting with Mary. In addition, the 2010 Order gave each parent the

right to confer with the other parent to the extent possible before making a decision

concerning the health, education, and welfare of the children.

      James sent Mary over 2,000 pages of emails consulting with and informing

Mary of issues regarding the children’s health, education, and welfare.


                                    - 19 -
(RR8_98:23-99:10)           Mary responded by making derogatory comments about

James. (RR8_65:12-13) Mary seldom communicated with James in a productive

fashion. (RR8_124:23-125:8) Mary or her boyfriend filed numerous complaints

against the children’s medical providers, school officials, and James.23 James tried

every type of communication possible in an effort to effectively communicate with

Mary. (RR8_125:1-8) James testified without court intervention, the conflict will

not stop. (RR8_87:14-21)

         The parties are not communicating effectively regarding scheduling the

children’s      medical     appointments     (RR3_89:10-91:17),   making   educational

decisions on behalf of the children (RR3_19:4-21:6, RR3_24:9-23), and choosing

medical providers for the children. (RR2_94:10-95:10) Mary even complains the

communication between the parties is poor. (RR7_71:15-23)

         Looking at the record, it was plain to see consultation between the parents

without a stated method was not working, so the Court provided a method of

consultation between the parents, which was the use of OurFamilyWizard.

         Appellee is well aware of the recent Flowers decision regarding notice

pleadings and trial by consent. Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.

Houston [14th Dist.] 2013). Flowers is distinguishable in two important respects.




23
     See Appellee’s Statement of Facts
                                         - 20 -
      First, in Flowers, the Court completely removed the requirement for

consultation prior to Ms. Flowers exercising her exclusive rights contained in the

original order.    In the instant case, the Court ordered James to utilize the

notification and communication facilities of “OurFamilyWizard” to consult with

Mary. The Court did not remove the consultation requirement but only stated

which method should be used.                 Mary does not appeal the use of

“OurFamilyWizard.”

      Second, in Flowers, the original order did not condition Ms. Flowers’

requirement of consultation with Mr. Flowers. In the instant case, James was only

required to confer with Mary to the extent possible before making a decision

concerning the health, education, and welfare of the children. There is so much

“bad blood” between Mary and James, the Court simply fashioned a method

wherein the parties could confer with one another to the extent possible.

      Lastly, the parties tried the issue of method of consultation by consent.

Mary claimed James was not consulting her before making decisions regarding the

children.     Mary and the Amicus Attorney both questioned James regarding

communication with Mary. (RR8_98:23-102:2, RR8_123:4-16, RR8_123:23-

125:8)      The Amicus specifically asked James what was the best method of

communication between James and Mary. (RR8_124:6-8) James stated he was at a




                                    - 21 -
loss what to do. (RR8_125:1-8) James stated further without court intervention,

the conflict would continue. (RR8_87:14-21)

      Mary argues it was abuse of discretion for the court to provide James has the

right to consent to medical, dental, and surgical procedures on behalf of the

children with the option to consult with Mary. James is still required to consult

with Mary prior to consenting to medical procedures just like the 2010 Order, but

the 2013 Order requires the consultation go through “OurFamilyWizard.” The trial

court specifically addressed Mary’s concerns regarding the children’s medical

information by requiring James to post the information on OurFamilyWizard.

(RR9_7:5-10:2)

      Even if the Court finds the requirement of consultation through

“OurFamilyWizard” is a modification, the issue was tried by consent and neither

party is appealing this method of consultation.

      Ie.   Changing Beginning and Ending Times of Mary’s Week-end
            Visitation Did Not Modify the 2010 Order and If It Did, The Issue
            Was Tried By Consent

     Tex.
     Fam.
     Code             2010 Order                         2013 Order
13 §153.312 Mary’s weekend periods of             Mary’s weekend periods
            possession during the school          of possession during the
            term ended at the time school         school term end at 6:00
            resumes after the weekend.            p.m. on Sunday.



                                    - 22 -
14 §153.312 Mary’s weekend periods of               Mary’s weekend periods
                   possession that do not occur     of possession that do not
                   during school term end at 8:00   occur during the school
                   a.m. on the following Monday     term end at 6:00 p.m. on
                   1SCR_13                          Sunday CR_37


         Since the 2010 modification order, the children’s well-being suffered when

the children were at Mary’s house on a school night. The Court found in its

Finding of Fact 5 the conduct of Mary had negatively affected the children and

continuation of Mary’s mid-week possession would harm the children.24

         The issue of Mary’s weekend possession schedule was tried before the

Court. (RR8_125:9-126:11) The children do not have peace at Mary’s house. The

children’s homework was not completed when Mary returned the children to

school after her weekends. (RR4_36:18-24) The children came to James’ house

upset, complaining, even crying after Mary’s possession of the children.

(RR4_57:21-58:17)

         Mary referred to JK1 as simple and simple minded (RR6_19:3-14). JK2 was

missing school, exhausted, stressed out, and fatigued. (RR6_26:7-12) JK4 requires

structure and stability and became upset and started crying after Mary told him (i)

he is autistic (RR8_11:21-22) and he should be a plumber (RR8_23:11); and (ii)

witnessed his older siblings being thrown out of Mary’s house. (RR8_12:2-20)

(RR8_13:2-11)
24
     Brief of Appellant Appendix 7
                                      - 23 -
      With respect to the Sunday return time of the children, the Court did not

significantly lessen Mary’s possession time but basically switched the pick-up and

delivery time. The Court adjusted Mary’s pickup and return time from Fridays at

6:00 p.m. until the children returned to school on the following Monday to Fridays

when the children are dismissed from school until 6:00 p.m. on Sunday. This

change was implemented so Mary could begin her weekend possession with the

children earlier and the children could settle down, relax, and have some peace on

school nights.

      Appellee agrees a trial courts’ judgment must conform to the pleadings;

however, if issues are not raised by the pleadings and are tried by express or

implied consent of the parties, these issues will be treated as if they had been raised

by the pleadings. Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.--Houston

[14th Dist.] 2013). To determine whether the issue was tried by consent, the Court

must examine the record not for evidence of the issue, but rather for evidence of

trial of the issue. Greene v. Young, 174 S.W.3d 291 (Tex. App.--Houston [1st

Dist.] 2005).

      With respect to the pickup and return time of the children, Appellee does not

believe the Court modified the 2010 Order but merely adjusted the times for the

benefit of the children.      Assuming arguendo this Court finds there was a

modification, Appellee would argue the parties tried the issue by consent.


                                     - 24 -
         1.1c. Removal of Mid-Week Visitation


     Tex.
     Fam.
     Code             2010 Order25                2013 Order26
12 §153.312 Mary had right to possession of Mary no longer has
            the children from 5:00 p.m.     Wednesday period of
            until 8:00 p.m. every           possession
            Wednesday


         With respect to the removal of Mary’s three-hour mid-week possession,

Mary testified James didn’t think the children should have mid-week visitation

with Mary. (RR5_28:16-18) Although there is some evidence the parties argued

over whether Mary should have overnight mid-week possession of the children,

Appellee concedes after a thorough search of the record, Appellee cannot point this

Court to a reference wherein the parties specifically tried Mary’s three-hour mid-

week possession other than Mary’s testimony.


II.      Response to Brief of Appellant’s Issue No. II: The trial court did not
         abuse its discretion when it ordered Mary to pay $50,000.00 in attorney
         fees and if it was error, it was invited error.

         At the conclusion of the trial, the trial court ordered Mary to pay $50,000.00

in attorney fees and costs.




25
     Brief of Appellant Appendix 3
26
     Brief of Appellant Appendix 2
                                      - 25 -
         The trial court filed its Findings of Fact and Conclusions of Law on March

27, 2014.27 The Court found counsel for James requested and proved attorney fees

and expenses in the amount of $108,811.93 and $50,000.00 were reasonable and

necessary and in the best interest of the children. Conclusion of Law 15 granted

judgment in the amount of $50,000.00 in attorney fees against Mary and in favor

of James’ counsel. On October 10, 2014, counsel for Mary represented to the

Court she had not received notice the Court issued its Findings of Fact and

Conclusions of Law. (RR0_5:15-17) Based upon counsel’s representation, the

parties agreed to extend the deadline for counsel for Mary to submit her requested

additional findings. (RR0_4:21-5:14)

         On October 30, 2014, the Court entered its Additional Findings of Fact and

Conclusions of Law28 which were requested by Mary. Conclusion of Law 9

provides counsel for James:

         “… is granted judgment for reasonable and necessary attorney’s fees,
         expenses and costs in the amount of $50,000.00 pursuant to Tex. Fam. Code
         §106.002 and Tex. Fam. Code §156.005.”


         The doctrine of invited error provides that a party cannot complain on appeal

 about an action or ruling which she requested the trial court to do or make.




27
     Brief of Appellant Appendix 7
28
     Brief of Appellant Appendix 8
                                      - 26 -
 Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005).                    Mary is

 complaining about a ruling, which she specifically requested.

       Mary cannot claim the Court granted judgment against her pursuant to Tex.

 Fam. Code §106.002 and Tex. Fam. Code §156.005 when she herself requested

 the ruling. Likewise, Mary cannot complain the $50,000.00 in attorney fees are

 not reasonable and necessary when she herself requested the specific ruling.

       IIa.   Response to Brief of Appellant’s Issue No. 11a: The trial court
              did not abuse its discretion when it ordered Mary to pay
              $50,000.00 in attorney fees.
              and
       IIc.   Response to Brief of Appellant’s Issue No. IIc: The evidence is
              legally and factually sufficient to support the court’s finding that
              $50,000 is a reasonable amount in attorney’s fees.



       At the conclusion of the trial, the court awarded James attorney fees in the

 amount of $50,000.00 pursuant to Tex. Fam. Code §106.002 and §156.005 which

 the court found to be reasonable and necessary. 29 30

       Texas Family Code §106.002 and §156.005 allow for the award of

 attorney’s fees. The trial court has discretion to render judgment for attorney’s

 fees and costs in any suit affecting the parent-child relationship. Farish v. Farish,

 921 S.W.2d 538, 546-47 (Tex. App.--Beaumont 1996, no writ); Wolters v. White,

29
  Brief of Appellant Appendix 7 (Findings of Fact and Conclusions of Law)
30
  Brief of Appellant Appendix 8 (Additional Findings of Fact and Conclusions of
Law)
                                       - 27 -
659 S.W.2d 885, 887-88 (Tex. App.—San Antonio 1983, writ dism’d); In the

Interest of Pecht, 874 S.W.2d 797, 803 (Tex. App.--Texarkana 1994, no writ).

      Generally, unless the complaining party can demonstrate a clear abuse of

discretion, orders arising from a suit affecting the parent-child relationship will

not be disturbed on appeal. Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990); In

re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A

court abuses its discretion when it acts arbitrarily, unreasonably, or without regard

to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.

App.—Houston [1st Dist.] 1999, no pet.) In determining whether an abuse of

discretion has occurred, the appellate court views the evidence in a light most

favorable to the trial court’s decision and indulge every legal presumption in favor

of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st

Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly,

it abuses its discretion. Walker v. Packer, 827 S.W.2d, 833 (Tex. 1992). An

allegation of legal or factual insufficiency is not treated as an independent ground

of error in this context because the appropriate standard of review is abuse of

discretion. In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.]

2002, no pet.).

      An abuse of discretion does not occur where the trial court bases its

decisions on conflicting evidence. Bailey v. Rodriguez, 351 S.W.3d 424, 426 (Tex.


                                   - 28 -
App.--El Paso 2011) citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). In

making its decision, the appellate court may not substitute its judgment for that of

the trial court unless the trial court’s decision was so arbitrary it exceeded the

bounds of reasonableness. Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.--

Houston [1st Dist.] 2011). Abuse of discretion does not occur as long as some

evidence of a substantive and probative character exists to support the trial court’s

decision. Holley v. Holley, 864 S.W.2d 703 (Tex. App.--Houston [1st Dist.] 1993,

writ denied).

         Counsel for James testified he had been licensed to practice law in Texas

since 1984 and has been Board Certified in Family Law since 2000. He further

testified he charges at the rate of $350.00 per hour, said fee being customary in

Harris County for attorneys with his experience but may be on the low side, that it

was necessary for James to hire him, he began representing James in this case in

2011, and this case required an inordinate amount of time because of all the

frivolous motions filed by Mary. (RR8_33:23-35:20) (RR8_35:24-36:9-14) His

attorney fee records were offered, proved, and admitted into evidence as R-60

without objection. (RR10_3-27) (RR11_3-27) (RR12_3-29) Lastly, he testified

Mary filed over 57 motions (RR13_3-5) which he offered, proved and admitted

into evidence as R-9031. (RR13_R-90) Mary cross-examined counsel for James at


31
     Appellee’s Brief Appendix 13
                                    - 29 -
length but did not question the hourly rate, whether the work was performed, or the

reasonableness of the fees despite having the opportunity to do so.

      The reasonableness and necessity of the fees is a fact question. Diamond v.

Soucie, 239 S.W.3d 428, 431 (Tex. App.—Dallas 2007, no pet.). Factors to guide

a trial court in determining whether the fees are reasonable and necessary include:

(1) the time and labor required, the novelty and difficulty of the questions

involved, and the skill required to perform the legal services properly; (2) the

likelihood the acceptance of the particular employment will preclude other

employment; (3) the customary fees charged in the locality for similar legal

services; (4) the amount involved and the results obtained; (5) the time limitations

imposed by the client or the circumstances; (6) the nature and length of the

professional relationship; (7) the experience, reputation, and ability of the lawyer

performing the services; and (8) whether the fee is fixed or contingent on results

obtained or uncertainty of collection before the legal services have been rendered.

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997);

Diamond, 239 S.W.3d at 431. The court need not receive evidence on each of

these factors, but may look at the entire record, the evidence presented on

reasonableness, the common knowledge of the participants as lawyers and judges,

and the relative success of the parties. In re A.B.P., 291 S.W. 3d 91, 98 (Tex.

App.—Dallas 2009, no pet.) Clear, direct, uncontroverted evidence of fees will be


                                    - 30 -
taken as true as a matter of law when such evidence is reasonable and credible and

where the opposing party had the means and opportunity to disprove the testimony

but failed to do so. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547-48

(Tex. 2009) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882

(Tex. 1990)).

      Judges can draw on their common knowledge and experience as lawyers and

as judges in considering the testimony, the record, and the amount in controversy

in determining attorney’s fees. McMahon v Zimmerman, 433 S.W.3d 680 (Tex.

App.—Houston [1st Dist.] 2014) (citing Protect Envtl. Servs. v. Norco Corp., 403

S.W.3d 532, 543 (Tex. App.—El Paso, 2013, pet denied)               see also In re

Guardianship of Hanker, 2013 Tex. App. LEXIS 7705 (Tex. App.--Houston 1st

Dist. June 25, 2013), no pet.) (holding that trial judge may “draw on her

knowledge of the case, review of the court file, and her experience in other …

proceedings in determining whether a requested fee is reasonable”). Trial courts

are considered experts on the reasonableness of attorney’s fees. McMahon at 693

(citing Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir.

2004) (holding that trial courts are experts on reasonableness of attorney’s fees; In

re TMT Trailer Ferry, Inc., 577 F.2d 1296, 1304 (5th Cir. 1978).


      The trial court did not abuse its discretion when it awarded James attorney

fees pursuant to Tex. Fam. Code §106.002 and §156.005. Likewise, the trial court

                                    - 31 -
did not abuse its discretion when it found the sum of $50,000.00 was a reasonable

and necessary attorney fee in this matter.

       IIb.     Response to Brief of Appellant’s Issue No. IIb: The evidence is
                legally and factually sufficient to support a finding that Mary’s
                suit was frivolous or designed to harass James.

       At the conclusion of the trial, the court found the modification suit filed by

Mary was frivolous and designed to harass James.

       The conflict between James and Mary has been going on for nine and a half

years and without court intervention, the conflict will continue. (RR8_87:14-21)

Since the 2010 modification, Mary has been attempting to drain James’ resources

through endless litigation and ultimately force James to relinquish custody. Even

if Mary could establish her suit was not frivolous, it does not foreclose the

possibility the suit was designed to harass James.

       The trial court found there was overwhelming evidence Mary had been an

obstructionist regarding the welfare of the children since the prior modification

proceeding.32 (RR8_136:21-137:5) Mary or her boyfriend filed numerous

complaints against the children’s medical providers, filed complaints with CPS and

the police against James, interfered with the children’s educational decisions, and

embarked on a general campaign to harass James.33 As further proof of Mary’s


32
   Brief of Appellant Appendix 7 (Finding of Fact and Conclusion of Law –Finding of
Fact 4)
33
   See Appellee’s Statement of Facts
                                       - 32 -
continual harassment of James, three days after James told Mary he was thinking

about changing one of the children’s schools, Mary filed her Motion to Modify.

(RR7_32:10-22)

     The Court’s award of attorney fees pursuant to Tex. Fam. Code §156.005 is

not a sanction and the Court need not provide specifics to justify the finding

Mary’s modification suit was frivolous or for the purpose of harassing James.

Additionally, Mary fails to make any argument or cite any authority in her brief

requiring the Court to file specific findings supporting its finding her suit was filed

frivolously and for the purpose of harassment of James. Therefore, Mary has

waived this issue on appeal. TEX. R. App. P. 38.1(h): Sterling v. Alexander, 99

S.W.3d 793, 798-99 (Tex. App.--Houston [14th Dist.] 2003, pet. denied).

     Mary fails to take responsibility for her past actions.         History suggests

Mary’s motion to modify was consistent with an overall pattern of harassing

behavior directed at prolonging litigation and draining James’ resources. The trial

court had the opportunity to view the witnesses and hear all the evidence before

making its determination. Mary is now asking this court to substitute its opinion

for that of the trial court. The evidence is legally and factually sufficient to sustain

the court’s finding Mary’s suit was filed frivolously and for the purposes of

harassing James.




                                     - 33 -
         IId. Response to Brief of Appellant’s Issue No. IId: The trial court’s
              alleged errors regarding the fourteen modifications did not affect
              the attorney fees determination.

         At the conclusion of the trial, after hearing the testimony and reviewing the

billing records of counsel for James, the trial court awarded James the sum of

$50,000.00 as reasonable and necessary attorney fees.34

         Mary argues paralegal and legal assistant’s billings were included in the total

attorney fee request. Mary argues counsel for James failed to offer testimony

regarding his paralegal and legal assistant’s qualifications and, therefore, said

amounts should be reduced from the total fee award.           Mary admits if the total

amount of legal assistant and paralegal fees were subtracted from the total amount

requested, James’s attorney fees would total $78,062.93 35. Since the trial court

only awarded James $50,000.00 in attorney fees, this issue is without merit.

         Lastly, Mary argues the attorney fee award is presumably based on the

fourteen modifications, which Mary is appealing. There is no evidence in the

record to support Mary’s presumption. Mary fails to consider the majority of the

trial was centered on her change of custody request to become the primary

conservator of the children. Mary’s change of custody request affected all fourteen

points, which she is now complaining of as well as many others. The Court denied

Mary’s request to change custody and many of the other additional modifications

34
     Brief of Appellant Appendix 7 and 8
35
     Brief of Appellant Page 40
                                           - 34 -
she was requesting. 36 The court became so disillusioned with Mary’s behavior, it

found Mary to be an obstructionist and that her suit was filed frivolously and for

the purpose of harassment of James.

       Mary argues the court granted the majority of her requested modifications so

James’ attorney fees should be reduced. Mary fails to remember the following:

       (i)     The court denied her change of custody request;

       (ii)    JK4 had been in counseling with Dr. Brandon six months prior to the

               court entering its order for counseling37;

       (iii)   James agreed to relieve Mary of her secondary health insurance

               obligation so long as she reimbursed him for the cost of the insurance

               premium prior to Mary seeking a court order38; and

       (iv)    James has no intention of taking the children to the Middle East.

       No matter how Mary spins it, the overriding requested modification is

Mary’s request to change custody, which James successfully defended. It was

within the court’s discretion to grant James attorney fees and it was not an abuse of

discretion for the court to find $50,000.00 in attorney fees as reasonable and

necessary for James to defend this case.




36
   Brief of Appellant
37
   Appellee’s Reply Brief Appendix 9
38
   Appellee’s Reply Brief Appendix 10, 12
                                       - 35 -
         III.    There is no requirement attorney fees awarded under Tex. Fam.
                 Code §156.005 be reasonable.

         Tex. Fam. Code §106.002 39 provides a court may render a judgment for

reasonable attorney fees and expenses under Title 5 of the Family Code. Tex.

Fam. Code §156.00540 provides the court may assess attorney fees as costs if the

court finds a modification suit was filed frivolously or designed to harass a party.

         The legislature, when drafting Tex. Fam. Code §156.005, could have put in a

reasonable requirement for attorney fees, but did not. Appellee has researched this

issue and is unable to point this court to any cases wherein the reasonableness of

attorney fees under Tex. Fam. Code §156.005 was specifically appealed.

         Appellee argues if the trial court finds a modification suit was filed

frivolously or for the purpose of harassment and if (i) it is within the discretion of

the trial court to award attorney fees under Tex. Fam. Code §156.005; and if (ii)

there is competent testimony regarding the total amount of the attorney fees; and if

(iii) there is no requirement for proof of reasonableness, a trial court’s award of

attorney fees pursuant to Tex. Fam. Code §156.005 cannot be disturbed as an

abuse of discretion based on reasonableness of the fee award.




39
     Brief of Appellant Appendix 1
40
     Brief of Appellant Appendix 2
                                     - 36 -
                             Conclusion and Prayer

      For all the foregoing reasons, Jamil “James” Kantara respectfully requests

this court to overrule Appellant’s issues and affirm the trial court’s judgment.

                                        Respectfully submitted,
                                        Wilfried P. Schmitz & Associates, P.C.


                                              /s/ Wilfried Schmitz
                                        BY: _________________________
                                            Wilfried P. Schmitz
                                        Texas Bar No. 17778700
                                        17040 El Camino Real, Suite 400
                                        Houston, Texas 77058
                                        Phone: (281) 486-5066
                                        Email: Court_Documents@schmitzlaw.com
                                        Attorney for Jamil “James” Kantara




                                    - 37 -
                         Certificate of Compliance

      Pursuant to TRAP 9.4(i)(3), I hereby certify that this brief contains 7,392

words as determined by the word processor function excluding exempted items as

listed under TRAP 9.4 (i)(1).



                                              /s/ Wilfried Schmitz
                                      BY: _________________________
                                            Wilfried P. Schmitz
                                      Texas Bar No. 17778700
                                      17040 El Camino Real, Suite 400
                                      Houston, Texas 77058
                                      Phone: (281) 486-5066
                                      Court_Documents@schmitzlaw.com
                                      Attorney for Jamil “James” Kantara




                                  - 38 -
                            Certificate of Service

       This is to certify that a true and correct copy of the foregoing Appellee’s
Brief has this 13th day of March, 2015, been sent pursuant to T.R.A.P. 9.5 (b)(1)
by electronic mail, to the following:

                                 Ashley Tomlinson
                         1800 Saint James Place, Suite 620
                                Houston, TX 77056
                          atomlinson@dalefamilylaw.com


                                  Douglas York
                            3355 W. Alabama, Suite 100
                               Houston, Texas 77098
                              york@douglasyork.com




                                         /s/ Wilfried Schmitz
                                        Wilfried P. Schmitz




                                    - 39 -
APPENDIX 9
,.


                                         NO. 2011-46281                                  ~               ~

     IN THE INTEREST OF                          §       IN THE DISTRICT COURT                Gil
                                                 §
                                                 §
                                                 §       BARRIS COT.JNTY TEXAS
                                                 §
                                                 §
                                                 §
                                                 §       311TB JUDICIAL DISTRitp'         I LED
                                                                                          Chris Daniel
                                                                                          Dlatrlct Clerk
                               ORDER FOR COUNSELING                                       APR 0 I 2013
                                                                                1'1me:     Hllltla eountJ.llliBI

            The Court finds this case is brought under Title V ofthe Texas FatllijJ.,Ccde 'R!t~
     Comt further finds it has authority under T.R.C.P. 204.4 on its own initiative to appoint a
     psychologist or couoselor to make any and all appropriate mental e¥aminations and/or

     treatment of                                                           and - - - ·
     ~er collectiveiyreferred to as "the children.").
            IT IS ORDERED Iamil "lames'' Kantara is ORDERED to schedule appointments
     fur the children~ a licensed psycho1ogist or counselor. IT IS FURTHER ORDERED
     the psychologist or coUDSelor selected by Iamil "James" Kantara is authorized to
     interview, examine and eva4Jate and treat the cbi1dren as the psychologist or counselor
     determines in her/his medical opitrion is reasonable and necessary. The psychologist or
     counselor selected by Jamil "James" Kantara shall be a preferred provider under the
     parties' current heahh plan covering the children. Each party is ORDERED to pay oru>
     half (1/2) oftbe psychologist or counselor's fees not covered by insurance within &~ .30
     days ofpresentmmt of the bill by the psychologist or oounselor to that party.
            IT IS ORDERED Jamil "James" Kantara and Mary Lynn Kantara Gerke shall
     cooperate with the psychologist or counselor and neither party shall harass, annoy, or
     intimidate the psychologist or counselor orally or in writing.          IT IS FURTHER
     ORDERED each party shall transport the children to their scheduled appointments during
     their periods ofpossession Unless otherwise directed by the psychologist or coUDSelor.
             IT IS ORDERED the psychologist or couoselor shan not testify fur either party in
     this matter and the records of the psychologist or counselor are protected :ftom discovery



                                                                                                    10
  and/or disclosure pummnt to T.R.E. 510{b)(1)(2) unless otherwise ordered by this Court.
         IT IS ORDERED neither party may communicate with, question, ta1k to, inquire
  about,. or discuss any mattm or issues with the children regarding cotiuseling sessions
  other than times of appointments.
         IT IS ORDERED neither party may coJJDTI1Jilicate with, question, ta1k to, inquire
  about, or discuss any matters or issues with the psychologist or counselor except fur
  ~uting appointments and payment of fees unless both parties are present, ~.1£17
--riTE ca.N1"'££Qr.('    ;::r:-~~J' ~H ;:r-M'f"F~I0."£7d U~ ~
         SIGNEDon                ~ q                         ,2013.                 /,




                                                      j




                                                                                             11
•


    AGREED TO AS TO FORM:

    Wilftied P. Schmitz & Associates, P.C.


    By:._~lJ~.l~~~c.A__---:---~­
           Wilfiied P. Schmitz
           State Bar No. 17778700
           17040 El Camino Rea], Suite 400
           Houston, Texas 77058
           Phone: (281} 486-5066
           Fax: (281} 486-2041
           Attorney mr Jamil "James" Jesus Kantara



    By:   'P...£Kw~
           Muy L~KantaraGeiPiose
           707 Almond Pointe
           League City, Texas 77573
           Phone: (281}332-8858
           Fax: (281) 290-0004



    Law Offices o Douglas Ray Yolk, P.C.




                  ar No. 24028243
                   . Alabama, Suite 100
           Ho        Texas 77098
           Phone: (713) 479-5555
           Fax: (713) 586-5585
           Amicus Attorney




                                                     12
APPENDIX 10
                                       NO. 2011-46281

IN THE INTEREST OF                             §          IN THE DISTRICT COURT .
                                               §
                                               §
                                               §          HARRIS COUNTY TEXAS
                                               §
                                               §
                                               §
CHILDREN                                       §            lllTH JUDICIAL.DISTRICT


JAMIL "JAMES" KANTARA'S RESPONSE TO MARY LYNN KANTARA GERKE'S
MOTION FOR RELIEF FROM THE ORDER TO CARRY SECONDARY INSURANCE
     AND FOR THE COURT TO SELECf A PREFERRED PROVIDER AND
                ORDER           TO COUNSELING
                AND REQUEST FORATI'ORNEY FEES



        COMES NOW Jamil "James" Kantara.        (h~eina.fter   "James") and files his Response to
Mary Lynn Kantara Gerke ·s Motion for Relief From the Order to Carry Secondary lruuranpe
and for the Court to Select a Preferred Provider and Order             to Counseling and Request
for Attorney Fees and would show the Court the fullowing:
        1.       Mary Lynn Kantara Gerke (hereinafter ·•'Mary") states in her Motion she was
asked by this Court to research psychologists· with experience in autism who are preferred
providers on James' insurance plan. Mary states James bas refused to consider other equally
qualified health providers who are preferred providers on his insurance plan. James carefully
reviewed the list provided by Mary. Some of the providers did not specialize :iri autism and
others were not acceptable after review by James.
        2.       Mary agrees in her Motion Dr. Michael Brandon is a good doctor but does not
_take their :b.eahh insurance. She states inlier November 13, 2012 email to James Dr. Brandon
seems qualified, appears co~ent, and it is too late to change for               sake. {See Exhibit
"A").              has now been seeing Dr. Brandon for over six -months and              · and ·Dr.
Brandon have developed a strong and trusting relationship. It is in W             best interest fur
             to continue counseling with Dr. Michael Brandon. The parties have been paying Dr.
BrandQn $75.00 per office visit and sharing that expense equally. Dr. Brandon has further·
offered to ·reduce his rate to $60.00 per session. From a financial standpoint, the yearly cost



                                                                                                 15
between . using Dr. Brandon versus using a preferred provider, after paying the $650.00
deductible,   ~   almost equal (See Exhibit ..B").
       3.         Mary has requested the Court fur relief :from carrying secondary heahh :insurance
for the children. She states: ''Ms. Kantara Gerke bas tried to secure agreement through a Rule.
11 agreement, however Mr. Kantara has refused to sign the agreement necessitating a ~-"
The truth of the matter is Jaines sent Mary a Rule 11 Agreement agreeing to release Mary ft-om
her obligation to maintain health insurance fur the. children provided she would reimburse James
$191.27 per month to cover the cost of the children's health insurance. (See Exhibit "C"). To
date. Mary has not responded.
       4.          For the above reasons, James prays the Court, after hearing arguments of counsel:
                   (i)     Deny Mary Lynn Kantara Gerke's Motion for Relieffrom the Order to
                           Carry Secondary Insurance or, in the alternative, order Mary L}'Ilil
                           Kantara Gerke to reimburse Jamil "James" Kantara the cost of the
                           children's heahh insurance in the amount of$191.27 per month beginnlng
                           May 10, 2013;
                   (ii)    Deny Mary Lynn Kantara Gerke's. Motion for the Court to Select a ·
                           Preferred Provider and Order 0         -    to CoU17Seling; and
                   (iii)   Award James Kantara his· reasonable attorney fees.


                                                 Respectfully submitted,

                                                 WILFRIED P. SCHMITZ &ASSOCIATES, P.C.



                                                 By:        ltJ   e.   5e4 ..
                                                       Wilfiied P. Schmitz
                                                       State Bar No. 17778700
                                                                                r
                                                       17040 El Camino Real, Suite 400
                                                       Houston, Texas 77058
                                                       Telephone: (281) 486-5066
                                                       Fax: (281) 486-2041
                                                       Attorney for Jamil Kantara




                                                     -2-.


                                                                                                   16
                                      Certificate ofServiee

          this is to certify a true and correct copy of the furegoing ·Jamil "James, Kantara ·s
  Response to Mary Lynn Kantara Gerke's Motion for Relief From the Order to Carry Secondary
  Insurance and for the Court to Select a Preferred Provider. and Order        to Counseling
· and Request for Attorney Fees was forwarded to all parties and/or counsel of record on this
  q-14-      day of May, 2013, via facsimile pursuant to T.R.C.P. 21(a). hand delivery and/or
  certified mail, retmn receipt requested to the fOllowing:

                                       Mary Gerke, Pro Se
                                       707 Almond Pointe
                                    LeagUe City, Texas 77573
                                      Fax: (281) 290-0004

                                       Mr. Douglas York
                              Law Offices ofDouglas Ray York, P.C.
                                  3355 W. Alabama, Suite 100
                                     Houston, Texas 77098
                                      Fax: (713) 586-5585.
                                        Amicus Attorney



                                             WJJ:fried. P. Schmitz      .




                                               -3-


                                                                                             17
James
From:                 Mary Lynn· Kantara [marykantara@gmail.com]
Sent                  Tuesday, November13, 201211:42AM .             ·
To:                   jameskantara@comcast.net; james.kantara@lmco.com
Subject:              RE: Counseling for••IL

or. Brandon seems qualified and appears competent. I think it is too late to change for
._. . . . . .~sake as you have already taken him for session. My concern is that once again~
 you did not Tollow the Court orders prior to putting all this in place.


-----Original Message-----
From: James Kantara [mailto:jameskantara@comcast.net]
Sent: Monday, November 12, 2012 2:54 PM
To: Mary Kantara Gerke; Mary Kantara Gerke; Mary Kantara Gerke; Mary Kantara Gerke
cc: James Kantara
Subject: Re: Counseling ~or .......

Do you object iT Dr. Brandon is best    ~or   tlllll• but not part       ~   Aetna and/or American
National's network?


From: Mary Kantara Gerke
To: James Kantara
To: James Kantara
Sent: Nov 12, 2912 9:45 AM
Subject: RE: Psychiatrist for • • • •

I haven,t met with Dr. Brandon yet. I'll let you know.             I understand you are taking . . . . . .~
~or an appointment with Dr. Brandon today. Is Dr.
Brandon a pre~erred provider on·the insurance?



From: James [mailto:JamesKantara@comcast.net]Sent: Monday, November 12, 2812
7:26 AM
To: "Mary Kantara'; 'mary_kantara@hotmail.com' j 'mary.kantara@gmail.com'Cc:
'James'
Subject: RE: Psychiatrist for   •••1
Dr. Brandon wants to meet         today.        His availability is at 5:15pm today at his
Friendswood,s office. I,d like to take                so they can visit.



From: James [mailto:JamesKantara@comcast.net]Sent: Sunday, November 11, 2912
2:48 PM
To: 'Mary Kantara'; mary_kantara@hotmail..com; mary.kantara@gmail.comCc:
'James·                   ·
Subject.: RE: · Psychiatrist for • • •

What is your input and/or opinion about Dr. Brandon?


                                                    1


                                          Exhibit "A"                                                18
From: James [mailto:JamesKantara@comcast.net]Sent: Wednesday~ November 97-,
2912 6:35 PM
To: 'Mary Kantara'; 'mary_kantara@hotmail.com'; 'mary.kantara@gmail.com'Cc:
'James'
Subject: RE: Psychiatrist for • • • •


This is Dr. Brandon"s contact information:
159 W. Shadowbend Lane, Friendswood, TX 77546. He cim be reached at
409-599-8177 or 281-338-2992. I established contact with him and I recommend you do the same
so we can make the decision to get          started.

Please let me know.

James



(7rom:. James [mailto:JamesKantara@comcast.net]Sent: Wednesday, November 97,
2912 4:17 AM
To: 'Mary Kantara'; 'mary_kantara@hotmail.com'; 'mary.kantara@gmail.com'Cc:
'James Kantara'
Subject: RE: Psychiatrist for I     tl •


Dr. Michael Brandon is an experienced counselor that may be a valuable coun.selor for
I   .U t   What opinion do you have and what information you may have about him and his
credentials? Dr. ~randon has an office in Friendswood.

Please let me know.

James

Sent via BlackBerry from T-Mobile




                                               2


                                                                                          19
James
From:                        Mary Lynn Kantara [marykantara@gmail.com]
Sent:                        Wednesday, April24, 2013 8:36AM
To:                          'James'; 'James Kantara'
Subject:                     RE: Dr. Brandon's hourly fees


That's really nice of Dr. Brandon. However, I've done the research like the judge asked me to do and have found quite a
few preferred providers in close proximity who have experience with autism, learning differences, anxiety and the like,
who are licensed in psychology and some who are also licensed in school psychology. Most of the providers have the
same contracted rate which results in a capay amount of less than $12 per visit.

I do not have the resources to not maximize the medical benefits for our kids. I have no problem staying with Dr.
Brandon, so long as you are agreeable to follow the court order of paying the difference over the preferred provider
co pay.

For you to continue to pay Mr. Schmitz to oppose every opportunity for compromise is only detrimental to our kids and
could easily pay for the very things you are opposing. It just doesn't make any sense and I really don't think it's being
lost on the judge or the amicus anymore.

The reality is Mr. Schmitz is the only one happy about this litigation, has only encouraged extended conflict and is
smiling all the way to the bank with money that could be invested in our kids and their future. That's so sad for our kids.




From: James [mailto:JamesKantara@comcast.net]
Sent: Tuesday, April23, 2013 9:02PM
To: 'Mary Lynn Kantara'; 'mary kantara'; 'mary kantara'
Cc: 'James'
Subject: Dr. Brandon's hourly fees

Mary,

Dr. Brandon offered to lower his counseling fees for             from $75 to $60 per session. Not to mention that
changing counselor for            is not in our son's best interest since he has already built a trusting relationship with Dr.
Brandon in the last six months of so, our yearly cost for Dr. Brandon's sessions will only be about $1,200 (for an
estimated 20 sessions/year * $50/session). From a financial stand point, switching • A I ato an Aetna preferred
provider will be subject to the upfront $650 deductible for the first 6 sessions or so before our out-of-pocket co-
insurance cost goes into effect. This means that our cost savings for the year will be negligible to non-existent, even
likely to end up being more cost effective for us than switching to an Aetna preferred provider.

This should greatly help address your financial concerns while keeping Dr. Brandon, the best counselor in the area for


James




                                                       Exbibit "B"                                                20
APPENDIX 11
                                                   Cause No. 2011-46281

 .IN THE INTEREST OF                                    §             IN THE DIS1RICT COURT OF
                                                        §
                                                        §
                                                        §             311 tb JUDICIAL DISTRICT
                                                        §
                                                        §
                                                        §
 CHILDREN                                               §             HARRIS COUNTY. TEXAS



~.LYNNKANTAIIAG.ERKE'SMOTIONJ10RREI.IEFJIIOMTBEOIIDER
   TO CARRY SECONDARY INSURANCE AND FOR THE COURT TO SELECT A PREFERRED
                PROVIDER AND ORDER j        TO COUNSELING



          On June 3, 2013, the Court c:onsidered .Mary Lynn KantQI'a Gerke's Motion for Relieffrom the
 Order to Carry Secf!ndary Insurance andfor the Court to Select a Prefem!d Provider and Order                to
 Cormseling. After reviewing the Motion and responses and hearing arguments, it is ORDERED:
          Mary Lynn Kantara. Gerke's Mary Lynn KantOI'a Gerke's Motion/or Relieffrom the Order to Ct117)1
 Secondary Insurance is granted in part and denied in part
          Mary Lynn Kantara Gerke is released from her obligation to maintain seconduy health insurance
                          T\o\c.   Cow\     ~\I-ll)~ -l~~ t.on4)-\\~t.!J o.. ~o..\~in" l\k e~~ ••u{ '\~ 1t'\ \-M.
 after June 30, 2013.'%~~';_ ~~.:!;;, ne,+'; U\'''\r:" t"~:t:Tk\:~~~~!.\"'"'r:~"'~:':O.c~o.rt'\.od h'l
          Mary Lynn Kantara Gerke is ORD~D to reim~ Jarif:i Karitafa the sum of $76.40 per month
 for partial reimbursement of the cost of the children's health insurance premimn with the first payment
                         ;.d,   ,l,Q\ ~
                                                                                                           due~~ ~
                                                                                                                 c. ~
                                                                                                                      f      r ·f            .I.
  on the S"' day or5"'1i~lle\'li&g canceJhwoa and aassatiea ef El.t~:~&ena for 1iAe ehild:ren's st.etulal'¥~ ~
                                                                                                                                      #•

                                                                                                                                    "' r-
 -heekh inst11'8ftee with Ms.l&ritara Gerlie's      s~~apJayep..and a like payment due on tbe 5th day of each monthKJ'~ ~ ~
 thereafter until further ordered ofthe Court.                                                      ,... "'  .                     lf y::..
                                                                                                 (' ~ ft
          Mary Lynn Kantara Gerke's Motion for the Court to Select a Preferred Provider and Order! ::s s:
                                                                                                                  ..     .,~
                                                                                                                                   ft.'...    "
                                                                                                                                              ~
                                                                                                                                              $It
            to   Counseling is granted in part and denied in part.                                                a"fif -                     F
          • • • • •11-shall continue in counseling with Dr. Michael Brandon. The ftequency, dura.tion,'l }                   ?l r            f'
  and all other specifics of said counseling shall be per the recommendations of Dr. Michael Brandon. Eacht              ~~~                 i-
                                                                                                                             ;,/~
  party is ORDERED to pay :;:::r-~~2) of the fees not covered by insurance within 30 days of presentmentt f~
                                                                                                                  :-{.
                                                                                                                                   ; f'
  oftbe bill·&;· ;g,. RFIRdeAoto          party.                                                                  ~      r   -;j   J.        t
                                                                                                                  ::;"' ..r~
                                                                                                                  ~·I"" .,t.                 fa
                                                                                                                  --~-        F.
                                                                                                                  ~ 1 _... !" $:.
                                    JUL 0 8 2013                                                                 - -·:r'1                    ~
          SIGNED on -=----------...;20_.                                                                         c;J"' ~ )
                                                                                                                 'u-a.~
                                                                                                                 ~ i"'~ '} Cl..
                                                                                                                 ~~~~
                                                        Pagel of2
                                                                                                                 J:          ~~
                                                                                                                 ;:~\t
                                                                                                                 ~~
                                                                                                           2~    .
I




    APPROVED AS TO FORM:



    f..,{ • £ ~.J:I,AL_
    Mary Lynn Kantara Gerke, pro se
    707 Almond Pointe
    League City, TX 77573
    Tel: (281) 332-8858
    Fax: (281) 290-0004



    Mr. Wilfred Schmitz, Attorney for Jamil K.anta.ra
    State Bar No. 17718700
    17040 El Camino Real, Suite 400
    Houston. Texas 77058
    Phone: 281        6-5066
    Fax:       8 -      l



    Mr.              ork, Amicus Attorney
    State Bar. o. 24028243
    33S5 W labama, Suite J00
    Hous , TX 71098-1863
    Phone 713-479-SSSS
    Fax 713-586-5585




                                                   Page2 of2

                                                               28
APPENDIX 12
                   VviLFRIED P. SCHMITZ&:ASSOCIATES, P.C.
                                         ATrOBNEYS.ATLA.W
                                   17040 :EL c~o BEAL. SUlTE 400 ·
                                      ·. HOUSTON. TEXAS 770.SS
                                                                                   Telephone {281) 486-5066
                                                                                   Facsimile {281) 480-2041
                                                                              e-mail wilfried@Schmitzlaw.com




 Aprilll, 2013



 Ms. Mary Gerke                                              Via Fax
 707 Almond Pointe
 League City, Texas 77573


 RE:      Cause No. 2011-46281; In the lntel'est of
                                                                              11    •w             •
          District Court ofHarris County, Texas.


 Dear Ms. Gerke:

  I am in receipt of your proposed Rule 11 Agreement. My client is agreeable to releasing you
· from yo:o;r obligation of maintaining secondary health :insurance.on the children if   you
                                                                                         are willing
  to r_eimbmse Mr. Kantara $191.27 per month tor    the cost ofheillth insurance for the children on
  his insurance pbm as shown on the attached..

 If yOu are ·agreeable, please sign the attached Rule 11 Agreement.

  Sincerely, ·

   w. f.· :5U.:.r;:
  Wilfiled P. Schmitz

· ·WPS:me
   EncJosures

  cc:   Mr. DoUglas York_




                                             Exhibit "C"                           ·.
     Lockheed Martin
                             Partidpant    Partidpant +   Extra Coverage Cost for children
   HealthWorks Medical
                          . only (James)     Children
   Coverage during 2013
                                                              Weekly Cost   Monthly CoSt
 Health Coverage          $       31.29    $     67.58    $         36.29   $      157.26
 Dental                   $        7.10    $     14.20    $          7.10   $       30.77
 VISion                   $        0.68    $      1.43    $          0.75   $        3.25
Total                     $       39.07    $     83.21    $         44.14   $      191.27




                                                                                             22
APPENDIX 13
                            Motions Filed by Mary Gerke


2011-11-10   Motion to Confer

2011-12-05   Mary's Motion for Temporary Orders

2011-12-15   Mary's Motion to Dismiss Motion to Compel

2011-12-21   Mary's Motion to Quash Mary Gerke's Deposition

2011-12-27   Mary's Motion to Compel Financial Information

2011-12-27   Mary's Motion to Compel RFD

2011-12-28   Mary's Motion for Children to Testify

2012-01-17   Mary's Motion to Quash Amended Deposition on Written Questions for Employment
             Records

2012-01-18   Mary's Emergency Motion for Court Ordered Counseling

2012-01-23   Mary's Motion for Contempt on Financial Disclosure

2012-01-24   Mary's Motion to Extend Discovery and Continuance

2012-01-31   Mary's Motion to Compel Discovery

2012-02-13   Mary's Motion on Apportionment of Amicus Fees

2012-02-14   Mary's Motion for Temporary Orders

2012-02-19   Mary's Motion to Compel HIPPA Compliance

2012-02-29   Mary's Amended Motion to Compel Discovery

2012-04-09   Mary's Motion for Protective Order for Gerber

2012.04-09   Gerber's Motion for Protective Order

2012-04-09   Mary's Motion for Protective Order on Letter Rogatory

2012-04-12   Mary's Motion to Compel Date for Harrison to Complete Exam

2012-04-16   Mary's Motion for Appropriateness of Dr. Kennedy's Fees

2012-04-23   Mary's Motion to Compel Production to Hope Moser

2012-04-25   Mary's Motion to Compel Date Certain for Harrison's Deposition
                                                                              ~   ..   EXHIBIT.
                                                                              l
                                                                              J... . /f-1o
2012-04-27   Gerber's Motion to Deny Letter Rogatory

2012-05-02   Gerber's Motion for Special Exception to Motion for Spoliation

2012-QS-02   Mary's Motion for Spoliation of Evidence

2012-05-20   Mary's Motion to Compel Fourth RFP and     2nd   Set of Interrogatories

2012-05-22   Mary's Motion to Determine Appropriateness of Hope Moser's Fee

2012-05-22   Mary's Request for Entry Upon James' Property

2012-06-07   Mary's Objection to Filing Business Record of Dr. Harrison

2012-06-12   Mary's Motion to Compel Harrison's Production

2012-06-25   Mary's Emergency Motion to Stay Order

2012-06-27   Mary's Motion for Review of Harrison's Evaluation

2012-Q7-08   Mary's Motion to Exclude Harrison's Report and Testimony

2012-08-05   Mary's Motion to Strike Kassidi Turnpaugh

2012-08-05   Mary's Motion to Strike 2nd and 3nt Amended RFD and Amended Counterpetition

2012-08-Q9   Mary's Motion for James to Pay Amicus Fees

2012-QB-09   Mary's Motion to Determine Scope of Confidentiality

2012-Q8-12   Mary's Motion to Strike Kit Harrison

2012-08-12   Mary's Amended Motion to Pay Amicus Fees

2012-08-14   Mary's Motion for Partial Summary Judgment

2012-Q8-14   Mary's Motion to Send Parties Back to Mediation

2012-08-23   Mary's Motion to Compel Production

2012-08-23   Mary's Amended Motion to Strike Kit Harrison

2012-10-28   Mary's Motion to Determine Arrearage of Medical Payments

2012-11-05   Mary's Motion to Examine Harrison's File

2012-11-10   Mary's Motion to Confer with the Children

2011-11-22   Mary's Motion to Recuse Wilfried P. Schmitz
2012-11-29   Mary's Motion to Compel

2013-01-02   Mary's Emergency Motion to Reset Pre-Trial Conference

2013-Q1-22   Mary's Emergency Motion to Enforce Visitation

2013-01-14   Mary's Motion for Witnesses Testifying Out of Order

2013-01-14   Mary's Motion to Strike Dr. Kennedy

2013-01-14   Mary's Motion to Strike Kit Harrison

2013-01-14   Mary's Motion to Strike Joanne Therese

2013-01-14   Mary's Motion to Strike Sherrie Me.ister

2013-02-13   Mary's Motion on Apportionment of Amicus Fees

2013-05-14   Mary's Motion for Sanctions

2013-05-28   Mary's Motion Prohibiting Homeschooling

2013-05-28   Mary's Amended Motion for Relief from the Order to Carry Secondary Insurance
