                                                                               ACCEPTED
                                                                           05-15-00554-CV
                                                                FIFTH COURT OF APPEALS
                                                                           DALLAS, TEXAS
                                                                     12/14/2015 3:09:54 PM
                                                                                LISA MATZ
                                                                                    CLERK

                        No. 05-15-00554-CV
                              IN THE
                                                        FILED IN
                                                 5th COURT OF APPEALS
                   FIFTH COURT OF APPEALS             DALLAS, TEXAS
                         at Dallas, Texas        12/14/2015 3:09:54 PM
                                                        LISA MATZ
              ––––––––––––––––––––––––––––––––––––        Clerk

       IN THE INTEREST OF J.A.C. AND Z.C.C., CHILDREN
              ––––––––––––––––––––––––––––––––––––
            Appealed from Cause No. 416-54259-2014 in the
           416th Judicial District Court of Collin County, Texas
________________________________________________________________
                  APPELLANTS’ REPLY BRIEF
________________________________________________________________

                                   Grady Reiff
                                   State Bar No. 24074941
                                   greiff@fullenweider.com
                                   Randall B. Wilhite
                                   State Bar No. 21476400
                                   rwilhite@fullenweider.com
                                   FULLENWEIDER WILHITE, P.C.
                                   4265 San Felipe, Ste. 1400
                                   Houston, Texas 77027
                                   713.624.4100
                                   713.624.4141 Facsimile
                                   service@fullenweider.com
                                   ATTORNEYS FOR APPELLANTS,
                                   J.A.C. AND Z.C.C.


              ORAL ARGUMENT NOT REQUESTED
                                             ABBREVIATIONS
Reporter’s Record .................................................................................................. RR

Clerk’s Record ..................................................................................................... CR 1

Supplemental Clerk’s Record ..................................................................... Supp. CR

       All other abbreviations in Appellants’ Reply Brief remain the same as in
their Appellants’ Brief.




         1
         For clarity’s sake, or lack thereof, there are two Clerk’s Records—each
marked as Volume 1 of 1—and filed on May 26, 2015. However, each Volume 1
of 1 has different filings that compromise all of the Clerk’s Record on appeal.

                                                           ii
                                          TABLE OF CONTENTS

                                                                                                                  Page
ABBREVIATIONS ................................................................................................ ii

TABLE OF CONTENTS ....................................................................................... iii

INDEX OF AUTHORITIES.................................................................................. iv

OBJECTION TO USE OF APPELLEE’S TRIAL EXHIBIT NO. 3 AND
  CERTAIN UNSUBSTANTIATED FACTUAL ASSERTIONS IN
  APPELLEE’S BRIEF ........................................................................................ 1

APPELLEE’S CONTENTIONS ............................................................................ 4

    Claimed Collateral Attack on an Acknowledgment of Paternity ...................... 4

    Public Policy ...................................................................................................... 6

PRAYER ................................................................................................................. 7

CERTIFICATE OF COMPLIANCE ...................................................................... 8

CERTIFICATE OF SERVICE ............................................................................... 8




                                                            iii
                                     INDEX OF AUTHORITIES

                                                        Cases

                                                                                                                  Page
Columbia Med. Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238
  (Tex. 2008)............................................................................................................6

State of Texas v. Shumake, 199 S.W.3d 279 (Tex. 2006) .......................................... 6

Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899
   (Tex. App.—Dallas 2005, pet. denied) ................................................................. 1

                                                      Statutes

Tex. Fam. Code §160.103 ..........................................................................................6

Tex. Fam. Code §160.302 ......................................................................................4, 5

Tex. Fam. Code §160.308 ..................................................................................4, 5, 6

Tex. Fam. Code §160.311 ..........................................................................................5

Tex. Fam. Code §160.602 ......................................................................................6, 7

Tex. Fam. Code §160.637 ......................................................................................6, 7

                                                        Rules

Tex. R. App. P. 9.4.....................................................................................................8

Tex. R. Evid. 202 .......................................................................................................5




                                                           iv
   OBJECTION TO USE OF APPELLEE’S TRIAL EXHIBIT NO. 3 AND
     CERTAIN UNSUBSTANTIATED FACTUAL ASSERTIONS IN
                     APPELLEE’S BRIEF

      Appellants object to the use of Appellee’s trial exhibit number 3, Deposition

of Nathan Cramer, in the Reporter’s Record for the April 13 hearing as it was only

offered, and not admitted, into evidence at the hearing. (RR, Exhibit List, p.4).

Neither Appellants, Appellee, nor the trial court referred to the exhibit during the

hearing; agreed its interpretation was an issue for the trial court to determine;

published the exhibit; nor did the trial court reference Mr. Cramer’s deposition in

its findings of fact and conclusions of law. An exhibit that is merely offered but not

admitted may not be considered by the appellate court except in narrow

circumstances, which do not exist here. See, e.g., Travelers Indem. Co. of Rhode

Island v. Starkey, 157 S.W.3d 899, 904 (Tex. App.—Dallas 2005, pet. denied)

(holding that if attorneys for both parties and trial court treated exhibit only offered

into evidence as if it was also admitted, i.e., referred to exhibit, agreed its

interpretation was issue for court to decide, published exhibit for court, lodged no

objections to its reference, and trial court based its findings of fact and conclusions

of law on exhibit, then exhibit is admitted for “all practical purposes”). As such,

Appellee’s exhibit number 3 was not properly before the trial court or this Court,

and Appellants object its use and to the following unsupported factual assertions in

Appellee’s Brief:


                                      Page 1 of 8
       1.     “CRAMER acknowledged his paternity on the birth certificates.”

              Citing RR Ex. 3 at 16:23-17:15. (Appellee’s Brief, p.2).

       2.     “CRAMER continued as an active father following the second

              divorce.” Citing RR Ex. 3 at 26:11-17. (Id., p.5).

       3.     “CRAMER admitted that BENN’s suit on behalf of J.A.C. and Z.C.C.

              to terminate CRAMER’s parental rights and adjudicate MASSEY as

              the children’s father was purely based upon financial reasons.” Citing

              RR Ex. 3 at 45:6-13, 46:5-9. (Id., p.6).

       4.     “[A]s well as prior acknowledgements of CRAMER’s paternity by

              BENN and CRAMER.” Citing RR Ex. 3 at 16:23-17:15. (Id., p.7).

       5.     “CRAMER and BENN acknowledged CRAMER as the father of

              J.A.C. and Z.C.C. by signing the children’s birth certificates

              identifying CRAMER as the father . . . .” Citing RR Ex. 3 at 17:12-15.

              (Id., p.18-19).

       Appellants further object to the following factual assertions as each is

unsubstantiated by the reporter’s record reference:

       1.     “CRAMER and BENN acknowledged CRAMER’s paternity of J.A.C.

and Z.C.C. by signing the boys’ birth certificates with CRAMER as the father and

giving the boys CRAMER’s last name in May of 2001. Citing RR Ex. 4 at 16:23-

17:15. (Id., p.7).


                                      Page 2 of 8
      2.     “The 2008 Georgia divorce decree between BENN and CRAMER

also adjudicated CRAMER’s paternity with respect to J.A.C. and Z.C.C., based on

prior acknowledgements of paternity including the South Carolina agreement and

Decree, and the May 2008 sworn settlement agreement.” Citing RR Exs. 1, 2.

(objection made to emphasized language).

      3.     “For over thirteen years, from the signing of the birth certificates . . .

.” Citing CR 4. (Id., pp.7-8).

      4.     “CRAMER was present at the birth of the children, testified that he

believed he signed the birth certificates acknowledging his paternity to J.A.C. and

Z.C.C. . . . .” Citing Supp. CR 6-7; RR 16:23-17:15. (Id., pp.16).




                                     Page 3 of 8
                        APPELLEE’S CONTENTIONS

      Appellee’s Brief, in essence, offers two arguments to support Mr. Massey’s

position.

      Claimed Collateral Attack on an Acknowledgment of Paternity.             In

Appellee’s Brief, Mr. Massey asserts that at least one acknowledgment of paternity

exists, which prevents J.A.C. and Z.C.C. from maintaining their suit as it

constitutes an impermissible collateral attack against such an acknowledgment

under Section 160.308(c). (Appellee’s Brief, pp. 9-22). To support this claim, Mr.

Massey relies upon the unsubstantiated contention that Mr. Cramer signed

Appellants’ birth certificates and has generally acknowledged his (mistaken)

fatherhood, including in two divorce proceedings, during Appellants’ lives.

      Mr. Massey has imposed a mental framing on this case that is not the correct

one. He presumes that so long as Mr. Cramer is shown to have signed any

document acknowledging his paternity, then J.A.C. and Z.C.C. are precluded from

maintaining their case. Mr. Massey’s argument only applies, however, if the

acknowledgement(s) of paternity, which he says are (1) J.A.C. and Z.C.C.’s birth

certificates allegedly signed by Mr. Cramer, (2) a 2008 notarized settlement

agreement, and (3) the South Carolina and Georgia divorce decrees, comport with

the acknowledgment of paternity laws of this or another state. Tex. Fam. Code

§§160.302(a)(1)-(5) (setting forth requirements of an acknowledgement of


                                   Page 4 of 8
paternity under Texas law); §160.311 (“A court of this state shall give full faith

and credit to an acknowledgment of paternity . . . that is effective in another state if

the acknowledgment . . . has been signed and is otherwise compliant with the law

of the other state.”). Neither of the latter documents satisfy the requirements under

Section 160.302(a)(1)-(5).

      As for J.A.C. and Z.C.C.’s birth certificates, there is no evidence of them in

record, much less of Mr. Cramer having signed them, but assuming, arguendo,

their signed birth certificates were before the trial court, the trial court did not take

judicial notice of South Carolina law regarding its legal requisites of an

acknowledgment of paternity nor was any evidence provided by Mr. Massey

regarding the same to substantiate his argument the birth certificates constitute, in

legal effect, acknowledgements of paternity under South Carolina law. Id.

§160.311; see Tex. R. Evid. 202 (“Determination of Law of Other States”). The

record is likewise devoid of any evidence that the South Carolina and Georgia

divorce decrees or the 2008 notarized settlement agreement comport with the legal

rules and requirements of acknowledgments of paternity in those states. 2




      2
          The same is true for all the other factual assertions Mr. Massey makes,
baseless or not, as there is no evidence to support any or all of those assertions
constituting an acknowledgement of paternity under the laws of any state. Tex.
Fam. Code §160.311; see Tex. R. Evid. 202.

                                      Page 5 of 8
      As such, the trial court had no basis to conclude that Mr. Cramer has ever

executed an acknowledgement of paternity under Texas, South Carolina, Georgia,

or any other state’s parentage laws and that J.A.C. and Z.C.C. therefore lack

standing to maintain their suit under Section 160.308(c).

      Public Policy. Mr. Massey also raises the claim of public policy to preclude

J.A.C. and Z.C.C.’s suit despite the Legislature’s meticulous and comprehensive

design to allow it. (Appellee’s Brief, pp. 22-26). The construction of Sections

160.602(a)(1) and 160.637(b) and the evidence in the record plainly allow J.A.C.

and Z.C.C. to maintain their parentage determination, along with the unambiguous

mandate that:

      (a)   [C]hapter 160 governs every determination of parentage in this
            state.

      (b)   The court shall apply the law of this state to adjudicate the
            parent-child relationship. The applicable law does not depend
            on:

            (1)    the place of the birth of the child; or

            (2)    the past or present residence of the child.

Tex. Fam. Code §160.103.

      Mr. Massey’s argument ignores the plain meaning of the words chosen and

objective of Chapter 160 and violates this Court’s primary objective—to ascertain

and give effect to the Legislature’s intent. E.g., State of Texas v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006). Such an interpretation would correspondingly cause

                                     Page 6 of 8
this Court to interpret Chapter 160 in a manner that renders numerous parts of its

statues “meaningless or superfluous.” E.g., Columbia Med. Center of Las Colinas,

Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). His theory also wrongfully denies

Appellants’ their lawful right to maintain this suit.

                                      PRAYER

      The plea to the jurisdiction should be reversed, and J.A.C. and Z.C.C. should

be given the opportunity to prove that Mr. Massey is their biological father as

provided under Sections 160.602(a)(1) and 160.637(b).

                                            Respectfully Submitted,

                                            FULLENWEIDER WILHITE, P.C.
                                            4265 San Felipe, Ste. 1400
                                            Houston, Texas 77027
                                            713.624.4100
                                            713.624.4141 Facsimile
                                            service@fullenweider.com

                                            By:/s/ Grady Reiff
                                                Grady Reiff
                                                State Bar No. 24074941
                                                greiff@fullenweider.com
                                                Randall B. Wilhite
                                                State Bar No. 21476400
                                                rwilhite@fullenweider.com
                                                ATTORNEYS FOR APPELLANTS,
                                                J.A.C. and Z.A.C.




                                      Page 7 of 8
                      CERTIFICATE OF COMPLIANCE

       Under Tex. R. App. P. 9.4(i)(3) as amended effective December 1, 2012, I
certify there are 1,290 words within this document exclusive of those contained in
the caption, table of contents, index of authorities, issues presented, statement of
the case, signatures, proof of service, and certificate of compliance, as tabulated by
the computer program used with preparing this document.
                                          By: /s/ Grady Reiff
                                            Grady Reiff



                         CERTIFICATE OF SERVICE
      I certify a true and correct copy of the foregoing Appellants’ Brief was
served on each attorney of record or party under the Texas Rules of Civil and
Appellate Procedure on this the 14th day of December 2015.

                                          By: /s/ Grady Reiff
                                            Grady Reiff




                                     Page 8 of 8
