                                                                                          ACCEPTED
                                                                                     01-14-00082-CV
                                                                           FIRST COURT OF APPEALS
                                                                                   HOUSTON, TEXAS
                                                                                 2/9/2015 5:01:40 PM
                                                                                CHRISTOPHER PRINE
                                                                                              CLERK

                                NO. 01-14-00082-CV

                                                          FILED IN
                                                   1st COURT OF APPEALS
                       IN THE COURT OF APPEALS         HOUSTON, TEXAS
                                                   2/9/2015 5:01:40 PM
                    FOR THE FIRST DISTRICT OF TEXASCHRISTOPHER A. PRINE
                                                           Clerk

                                   AT HOUSTON



                        MARY LYNN KANTARA GERKE

                                           V.

                          JAMIL “JAMES” KANTARA


                 APPELLANT’S RESPONSE TO NOTICE OF
                 DISMISSAL FOR WANT OF JURISDICTION


TO THE HONORABLE COURT OF APPEALS:

      Appellant files this response to this Court’s notice dated January 27, 2015

regarding its intention to dismiss this matter for lack of jurisdiction.

                                  BACKGROUND

1. On October 28, 2013, Associate Judge Newey signed the Order in Suit to

   Modify the Parent-Child Relationship (“Order”) from which Mary Lynn

   Kantara Gerke now appeals.

2. The Order does not include any written finding that the parties waived their

   right to appeal Judge Newey’s order to the referring court. At the time, Judge

                                           1
   Denise Pratt presided over the referring court.

3. However, prior to trial and entry of the Order, the parties twice waived on the

   record their right to appeal Judge Newey’s decision on final trial.

4. The parties first waived on the record their right to appeal to Judge Pratt on

   November 28, 2011. See Exhibit 1 at pp.5-6.

5. Subsequently, on August 17, 2012, the parties confirmed that they waived their

   right to appeal Judge Newey’s judgment on final trial. See Exhibit 2 at p.

                        ARGUMENT & AUTHORITIES

6. This Court has jurisdiction over this appeal, because the Order does constitute a

   final judgment.

7. Under Section 201.007 of the Texas Family Code, “an associate judge may sign

   a final order that includes a waiver of the right of appeal pursuant to Section

   201.015.” (emphasis added) TEX. FAM. CODE §201.007(a)(16).

8. Section 201.015 allows parties to waive their right to appeal to the referring

   court in writing or verbally on the record. TEX. FAM. CODE §201.015(g).

9. A prior waiver under Section 201.015(g) is sufficient to establish an associate

   judge’s authority to enter a final order under Section 201.007(a)(16). The order

   in question does not have to include a written finding that the parties already

   waived their right to appeal. And the mere fact that an order does not include a

   written reference to the prior waiver does not deprive an associate judge to enter


                                          2
   a final order under Section 201.007(a)(16). See Wells v. Wells, 2010 Tex. App.

   LEXIS 6787, at 2 (Tex. App. –Houston [14th Dist.] Aug. 19, 2010, pet. denied)

   (finding that an order was final under Section 201.007(a)(16) even though the

   order did not include a written reference to a waiver, because the parties had

   already waived their right to appeal approximately one month prior to entry of

   the final order) (attached hereto as Exhibit 3).

10.Because the parties in this matter had already waived on the record their right to

   appeal under Section 201.015(g), Judge Newey had the authority to enter a final

   order in this matter under Section 201.007(a)(16). Therefore, the Order is a

   final judgment and is appealable.

                                        Respectfully submitted,

                                        LAURA DALE & ASSOCIATES, P.C.

                                        /s/ Ashley V. Tomlinson
                                        ASHLEY V. TOMLINSON
                                        1800 St. James Place, Suite 620
                                        Houston, Texas 77056
                                        Tel: (713) 600-1717
                                        Fax: (713) 600-1718
                                        State Bar No. 24075170
                                        E-Service: eserviceavt@dalefamilylaw.com
                                        Non-Service:
                                        atomlinson@dalefamilylaw.com
                                        Attorney for Mary Kantara Gerke




                                          3
                        CERTIFICATE OF SERVICE

I certify that on this 9th day of February, 2015, a true and correct copy of the
foregoing document was served in accordance with the Texas Rules of Civil
Procedure as follows:

      Mr. Wilfried Schmitz
      17040 El Camino Real, Suite 400
      Houston, Texas 77058
      Attorney of record for Mr. Kantara
      Via E-Service

      Douglas York
      3355 W Alabama, Suite 100
      Houston, TX 77098-1863
      Amicus Attorney
      Via E-Service


                                           /s/ Ashley V. Tomlinson
                                           ASHLEY V. TOMLINSON




                                       4
                                 Hearing
                                                                             I
                            November 28, 2011



1                           REPORTER ' S RECORD
                          VOLUME 1 OF 1 VOLUME
2                         CAUSE NO. 2011-46281

3    IN THE MATTER OF                     IN THE DISTRICT COURT
     THE MARRIAGE OF
4    Mary Lynn Kantara Gerke
     AND                                  HARRIS COUNTY , TEXAS
5    Jamil James Kantara



7
8    an

9    ~ K-                                 311TH JUDICIAL DISTRICT


10

11
12                               HEARING

13

14

15        On the 28th day of November ,     2011 ,   the following

16   proceedings came on to be held in the above-titled and

17   numbered cause before the Honorable Robert Newey ,              Judge

18   Presiding ,   held in Houston ,   Harris County ,   Te x as .

19        Proceedings reported by computerized stenotype

20   machine .

21

22
23
24
25




                         EXHIBIT 1
                                               2
                               Hearing
                          November 28 , 2011



1                            APPEARANCES

2

3    Ms . Ma ry Lynn Kantara Gerke
     707 Almond Pointe
4    League City , Texas 77573
     Telephone :  281-332-8858
5    Pro s e

6    Mr . Wilfried Schmitz
     SBOT NO . 17778700
7    WILFRIED SCHMITZ & ASSOCIATES
     17040 El Camino Real
8    Suite 400
     Houston, Texas 77058
9    Telephone :  281-486-5066
     Counsel for Defendant
10

11

12

13

14

15

16

17

18

19

20
21

22
23

24
25
                                                                                         3
                                        Hearing
                                   November 28, 2011



1                                         VOLUME 1
                                            INDEX
2                                          Hearing

3    November 28 , 2011
4    Reporter ' s Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 26   1

5

6
7

8

9
10

11

12

13

14

15

16

17

18

19

20
21

22

23
24
25
                                                                                      4
                                    Hearing
                               November 28 , 2011



1                       THE COURT :       All right .      Court calls

2    Cause No.    2011-46281 ; In the Interest of J                       ,   J   ,

3    J        , and J            K          .
4                       Counsel ,    identify yourself for the record ,

5    please.

6                       MR.   SCH MITZ:     Your Honor ,         I 'm Wilfried

7    Schmitz,    S-c-h-m-i-t-z .       I represent James Kantara.

8                       THE COURT :       Introduce yourself , please.

9                       MS . GERKE :      My name is Mary Lynn Kantara

10   Gerke , G-e-r-k-e; and I ' m pro se.

11                      THE COURT:        And what's set this morning

12   this afternoon?

13                      MR.   SCHMITZ :     Your Honor ,         it ' s

14   Mrs . Gerke ' s motion that the children to confer with the

15   judge; my motion for atto rney fees ,               and mo tion to                   II
16   protective order and a protective hearing .

17                      THE COUHT :       Okay .    How old is the oldest

18   child?

19                      MS. GERKE :       Sixteen and a half.

20                      THE COURT :       Okay .    Is she o n this case?

21                      MR.   SCHMITZ :     Yes ,   your Honor .          Well,
22   she ' s my client ' s cousin .

23                      THE COURT :       I ' m sorry?

24                      MR.   SCHMITZ :     She ' s my client ' s cousin .

25                      THE COURT :       Oh , okay .     So ,    is this a
                                                                                 5
                                  Hearing
                             November 28, 2011



1    custody case?

2                     MS . GERKE :      It ' s a modification case .

3                     THE COURT :       Asking for what?

4                     MS . GERKE :      Asking -- at this point for

5    confer with the children to see what their preferences

6    are as far as primary residence and possession and

7    access , electronic communication , counseling .

8                     THE COURT :       So ,   if this case doesn ' t get

9    resolved ,   who's going to hear it on final?

10                    MR. SCHMITZ :        It doesn ' t   matter to me ,

11   your Honor -- just you or Judge Pratt ,              either one of

12   you .

13                     THE COURT :      I ' m the associate judge .

14   Judge Pratt is the elected judge .               I ' ll be happy to hear

15   it for you ,    but you wLll have to waive your right of

16   appeal to Judge Pratt and agree to appeal only to the

17   Court of Appeals for me to hear it ; other wise ,                you need

18   for her to hear it .

19                     MS . GERKE :     I don ' t    think-- you are fine.

20                     THE COURT :      I ' m sorry?

21                     MS. GERKE :      You are fine .       You or

22   Judge Pratt .

23                     THE COURT :      Are you okay for me hearing

24   it?

25                     MR . SCHMITZ :      Yes ,    your Honor .
                                                                                 6
                                    Hearing
                               November 28, 2011


1                       THE COURT :      Now ,    why are you opposing me

2     interviewing -- and how old is the youngest child?                   How

3     old is J          ?                                                            ;
4                       MR.   SCHMITZ:      J            is just ten .

5     J         is the one who turned 12 since the last

6     modifi cation .    She ' s 13 now.         She turned 12 when

7                       THE COURT:       And you want me to inter v ie w

8     all three of these kids?

9                       MS.   GERKE :    Yes ,    your Honor.

10                      THE COURT :      Why should I       not do that?

11                      MR.   SCHMITZ:      Your    Hono~   this is request

12    of jury trial in this matter.               There ' s no -- no motion

13    for temporary orders .

14                      THE COURT :      Did you request a jury trial?

15                      MS . GERKE:      I requested a confer to

16    determine what their preference is .

17                      THE COURT :      Did you request a jury trial?

18                      MS . GERKE :     No ,    your Ho n or.
                                                                                         I

19                      THE COURT:       Did you?

20                      MR . SCHMITZ :      Yes ,   your Honor .

21                      THE COURT :      If a     jury trial has been

22    requested ,   then it ' s useless to intervie w the childre n

23    because I or Judge Pratt or whoever wouldn ' t               be able to

24    pass on any information to anybody about that interview

25    anyway.


     ~------------------------------------~------------~, 1
                                                                                7
                                  Hearing
                             November 28 / 2011



1                    MS. GERKE:         Your Honor ,   I haven ' t

2    requested that there be a change in the primary

3    residen c e unless the c hi ldre n con fer.        I ' m just asking

4    for temporary orders at this point in time .

5                    THE COURT:         Well ,   I understand that ; but

6    it is ultimate request for a jury trial .

7                    MS.   GERKE :      The question --

8                    THE COURT :        We are not going to change the

9    residence that's been previously establis h ed by court

10   order solely on the preference of the child or the

11   children .

12                   MS. GERKE :        Okay .

13                   THE COURT:         There has to be an emergency

14   or immediate threat to them before we will even co nsider

15   that .

16                   MS. GERKE :        In the alternative ,     I - - I ' ve

17   asked for confer for it to talk to the children about

18   what they would like as far as having additional

19   expanded visitation or co unseling other issues affecting

20   their -- their relationship with both parents.

21                   THE COURT:         Is this case set for trial?

22                   MR.   SCH MI TZ:     Mu ch to our c hagrin ,    I
23   believe my staff saw it and set the trial in February.

24   I am not sure how         court ' s dockets is in February.

25                   THE COURT:         Tammy,   can you see or check
                                                                                8
                                  Hearing
                             November 28/ 2011



1    and see if this case is set on Judge Pratt ' s or on the

2    docket for jury trial?
3                     THE CLERK :      Okay ,     Judge .

4                     THE COURT :      While she ' s doing that , who is

5    presently primary?

6                     MR . SCHMITZ :      My client is ,     your Honor .

7                     THE COURT :      Ok ay .

8                     THE CLERK :      Jury trial when ,      Judge?

9                     THE COURT :      Say it again?

10                    THE CLERK :      When did y ' all say it was for

11   j ury t rial?

12                    MR . SCHMITZ :      I    think we sa w it was set on

13   the court calendar in February .              Called the jury request

14   and

15                    THE COURT :      When did yo u p a y the j u ry fee?

16                    MR . SCHMITZ :      I would be telling the

17   Court -- probably ,     three   --   four weeks or a mont h ago?

18   Two weeks ago?     I   can get the e x act d ate if

19                    THE COURT :      I ' m sorry?

20                    MR . SCHMITZ :      --     the Court wants   --   I can

21   get the exact date .

22                    THE COURT :      It should be on the co mp u t er .

23                    MR . SCHMITZ :      I can call

24                    THE CLERK :      Well ,     February 6th ; but it ' s

25   just on the general docket .
                                                                                  9
                                      Hearing
                                 November 28 , 2011



1                        MR . SCHMITZ :     Has the jury request fee

2    been paid?

3                        THE CLERK :      J ury fee paid on

4    Nove mb er 14th .

5                        So ,   they just paid for i t ,         Judge .

6                        THE COURT :      Okay .     But it ' s t imely paid?

7                        THE CLERK :      Yes , sir .

8                        THE COURT :      All right .      Let ' s dea l   with

9    the protective order first .

10                       MR . SCHMITZ :     Your Honor , before we start

11   this h earing ,     I would like to request by the rule

12   invoke the rule .

13                       THE COURT :      Well ,   I haven ' t    -- I need to

14   hear the argument on the protective order before we take

15   any witness '      testimony .

16                       MR . SCHMITZ :     Okay .      Sure .

17                       Your Honor , on the protective order ,               I

18   have before the Court -- make a long story short -- this

19   case wa s originally a modification case .                   There was
20   original trial date .          It was 2006 ,       a trial bet ween the

21   parties .    The case was -- went up for modi f ication in

22   April -- March -- April of 2010 .                After a long jury

23   trial ,   the --

24                       THE CO URT :     When was th i s jury trial?

25   In 2 010?
                                                                                    10
                                  Hearing
                             November 28, 2011


1                     MR . SCHMITZ:       In 2010 .

2                     THE COURT :       Was that in Galveston County?

3                     MR.   SCHMITZ :     Galveston County .

4                     THE COURT:        Okay .

5                     MR. SCHMITZ :       The jury awarded the            --   it

6    would be the best of the children              --     of all four

7    children that my client be awarded primary                  --   to take

8    care of all children at that time.                  Since that time,       the
9    order was signed in April 15th,              2002 .     Since that time,

10   many things have happened.

11                    My client was given the exclusive right at

12   the consultation to make medical decisions on behalf of

13   the children among other things .              My clie nt has

14   attempted to take the children t o several physicians ,

15   and he ' s always be impeded by " letter writing campaigns "

16   or by whatev er by Mrs. Gerke.              In fact ,    attached to my

17   motion is a letter from Dr. Kitt Harrison -- said that

18   he ' s not even going to go ahead and see the children

19   until he gets some of sort of protective order from

20   this court because Mrs. Gerke ,             since that time ,       has

21   filed numerous comp l a i nts against other medical

22   professionals.     She has been on a " letter wr iting

23   campaign " to those medical professions .                 We can ' t get

24   anybody to see these children with regard to -- with

25   what's actually going on whether it be psychological ,
                                                                          11
                                Hearing
                           November 28 , 2011



1    et cetera -- in some cases , medical providers , such as

2    lead doctors,   et cetera .

3                    THE COURT :      The basis of your protective

4    order is

5                    MR . SCHMITZ :     Judge ,     that she doesn ' t

6    contact them until after Kitt Harrison and the other

7    professional that he decides has a chance to finish his

8    report .   And that ' s all we are asking for .

9                    THE COURT :      That she not con tact wh o?

10                   MR . SCHMITZ:      Kitt Harrison -- unless he

11   asks her to .   No complaints against him ,             no threats

12   against him ,   none of that sort of thing .

13                   THE COURT :      And your response?

14                   MS. GERKE :      Have you received my response ,

15   your Honor?

16                   THE COURT :      When did you file it?

17                   MR. SCHMITZ :      November 22nd .

18                   THE COURT :      Probably not .         If you can

19   provide me with a copy -- or let me see if Mr. Schmitz

20   has it .

21                    Do you have an extra copy of her response,

22   or do you have a copy of your response?

23                   MS. GERKE :      Yes , sir .

24                   THE COURT:       All right .

25                   MS . GERKE :     Your Honor ,     Mr.    Kantara ,
                                                                                 12
                                     Hearing
                                November 28 , 2011



1    according to the court orders ,            is supposed to confer

2    wi th me before he takes the children to a physician,                   a

3    counselor ,      or a psychologist or something li ke that .

4    I ' ve created a list for the kids have actually received

5    all the medical care they need .                What has happened is ,

6    i n some instances , Mr. Kantara ' s -- I work a dis t ance

7    from my home ; and so ,        the appointments wil l       be in the

8    middle of the day .         So ,   I have sent faxes saying that

9    these are my concerns .            The kids -- I 'm unaware of the

10   k ids not being able to receive any medical care as far

11   as psycholog i cal care since the rendition -- or since

12   the last orders .         I requested the kids receive their o wn

13   counselor that ' s independent of Mr . Kantara o r myse lf .

14   Mr . Kantara ha s engaged in t his effort since the last

15   court orders of tr ying to take the kids to his own

16   pr i vat e counselor ; and I guess no w,           he ' s trying to make

17   arrangements fo r an expert because he wants to further

18   exclude me from these kids'            lives .     And this protective

19   order is just a further effort to his -- to bias

20   Mr.    Henderson or Ms . Kennedy or whatever by not allowing

21   me to have my input into what ' s going on with the

22   kids --

23                       THE COURT :      Di d you hire Dr . Harrison?

24                       MR . SCHMITZ :     Well ,    we attempted to --

25   yes,   y ou r   Honor .   We tried also hire Ms . Kennedy at one
                                                                             13
                                   Hearing
                              November 28 , 2011


1    point -- Dr. Kennedy --

2                     THE COURT :    But your protective order is

3    aimed at protecting Dr . Harrison while he does his

4    investigation?

5                     MS . GERKE :   That ' s     right .   Dr. Harrison

6    and anybody else that he refers -- part of the work

7    to --

8                     THE COURT :    Where do you work?

9                     MS. GERKE :    I work in Galveston .

10                    THE COURT :    I   know .     Doing what?

11                    MS . GERKE :   Moody National Bank .

12                    THE COURT :    Doing what?

13                    MS . GERKE :   I ' m -- I ' m an accountant.

14                    THE COURT :    I   mean , both sides in a

15   custody case have a right to hire their o wn e xp ert if

16   they want to .    They pay for them .          Expert does whatever

17   the expert does , and then you have the right to take his

18   deposition to enter into whatever discovery you need to

19   find out whether or not any opinion he renders is valid

20   or invalid or whatever .

21                    Now ,   if he -- Dr . Harrison ,       in this

22   instance ,   wants to talk to you ; then he will make that

23   desire known ,   and you can go talk to him .           Other wi se ,

24   Mr . Schmitz ' s motion is to leave him alone wh ile he ' s

25   doing his investigation .
                                                                                 14
                                Hearing
                           November 28 , 2011



1                    why should I not          gran~   that?    It appears

2    that both of you have this ability to threaten the other

3    wi th grievances against their doctors .             That ' s your

4    right of free speech , but it is not helpful for your

5    kids ; nor is it helpful for the litigation process .                   So ,

6    that ' s my question to you -- if it ' s their expert, why

7    shouldn ' t they be able to have their e xpe rt do his work

8    whatever that looks like before you have an opportunity

9    to talk to him and crJss -examine him .

10                   MS. GERKE :      Mr . Schmitz ' s motion was

11   not -- for Ms . Harrison-- just              Mr. Harrison

12   Mr . Schmitz's motion ls for me to not to speak to any

13   medical care provider --

14                   THE COURT :      Right now ,      I ' m just focusing

15   on Dr . Harrison .

16                   MS. GERKE :      -- Just Dr.       Harrison

17                   THE COURT :      I mean ,    I ' m inclined to grant

18   it as to Dr. Harrison .       He is their e xp ert .

19                   MS. GERKE :      If they are going to have an

20   examine for litigation purposes ,           and he's not their

21   psycho logist or their counselor --

22                   THE COURT :      He ' s   just      he ' s j us t   doing

23   an evaluation from your standpoint ; is that correct , Mr .

24   Schmitz?

25                   MR . SCHMITZ :      That is correct , your Honor .
                                                                                       15
                                    Hearing
                               November 28, 2011



1                      THE COURT :        Okay.       Then ,     he ' s not a

2    treater .    He's an evaluator.             You can hire your own

3    evaluator if you want to.

4                      No ,   I'm serious .          That ' s    the way this type

5    of litigation unfolds.          All right .            I ' ll grant your

6    motion as to Dr . Harrison .            Are you asking for anything

7    further?

8                      MR. SCHMITZ :         Yes ,    your Honor .          Any other

9    medical professionals that he may utilize in his

10   investigation .

11                     THE COURT :        So ,   you want to --

12                     MR. SCHMITZ :         If he           if he decides,       for

13   example,    he wants to-- I don ' t             know         a testing by

14   somebody else require testing and review that test or

15   whatever he decides to do ,           stay out of it .

16                     THE COURT :        Not any of the treaters of

17   h is -- not any of the treaters of the chi ld ren .

18                     MR . SCHMITZ :        Not any of the treaters per

19   se .

20                     MS. GERKE :        Your Honor ,          I don ' t   have any

21   rights to get any sort of evaluation of any sort?                           All

22   of those rights are Mr . Kant a r a ' s ,           so --

23                     THE COURT :        In this l i t i gation you have

24   the right to get whatever evaluation you think you need .

25                     MR.    SCHMITZ :      With regards to the
                                                                            16
                                  Hearing
                             November 28/ 2011



1    children?

2                     THE COURT:       Absolutely.       This is what this

3    is about.     There ' s a difference between an evaluation

4    for litigation purposes and a treater for medical or

5    psychological reasons.

6                     MS.   GERKE:    Okay.

7                     THE COURT:       We ' re talking here only about

8    evaluators.     People wh o come in and tell the court or

9    the jury what their opinion is of whatever the subject

10   matter.     They are not treaters .         They are evaluators.

11                    MS. GERKE:       And if you don ' t     have access

12   to my children during the week to have this done,                I

13   still run into

14                    THE COURT:       Well ,   then ,   I can help you

15   with that .    If they won ' t    make the children available,         I

16   can help you with that .         Now,   what Mr.    Schmitz is

17   ta lking about is that Dr.        Harrison may want to talk to

18   some other doctor to do some other form of testing.                  One

19   of these children apparently has some kind of special

20   medical problem.

21                    MS.   GERKE :    Your Honor,       two of them have

22   special medical problems, and just so that you are

23   aware ,   that the kids have pretty much been tested every

24   year since they were little .           There have been family

25   psychological evaluations,         there have been educational
                                                                             17
                                    Hearing
                               November 28 , 2011



1    evaluations;    there is evaluations everywhere on this

2    entire family
3                     THE COURT :        Nobody has evaluated the

4    evaluators .

5                     Well ,    I ' m going to expand the motion ,        but

6    it does n ot apply to an y doctor who is treating any of

7    these children .        If Dr . Harrison wan ts some form of test

8    done by somebody ,       he ' s going to have to find somebody

9    who ' s not a treater o f these children .

10                    MR. SCHMITZ :        Yes ,   your Honor .    I ' ll draft

11   you a court order .

12                    THE COURT :        Okay.     Wha t   else?

13                    MR . SCHMITZ :       The last thing we have ,       your

14   Honor ,   is our motion to enter attor ney fees and for

15   expert fees .

16                    THE COURT :        What is your client do for a

17   living?

18                    MR . SCHM I TZ :     He ' s an engineer for

19   Lockheed Mar tin .

20                    THE COURT :        And makes ho w much a month?

21                    MR . SCHMITZ :       About 10 , 000 .

22                    THE COURT :        I ' m sorr y?

23                    MR . SCHMITZ :       About 10 ,0 00 a month .

24   Total .

25                    ~ HE   COURT :     A month?
                                                                            18
                                     Hearing
                                November 28, 2011


1                       MR.    SCHMITZ :     A month .

2                       THE COUR T :       And is this a p ost-divorce

3    modification, or were they born without benefit of the

4    marriage?

5                       MR . SCH MITZ:       No ,   this is post -- this is

6    second post-divorce modificat io n .             This second

7    post-divorce modification was filed by Ms. Gerke .

8                       THE COURT :        When was the divorce granted?

9                       MR . SCHMITZ :       Divorce was granted in 2006 .

10                      THE COURT :        Where?

11                      MR. SCHMITZ :        In Galveston .

12                      THE COURT :        Okay .

13                      MR. SCHMITZ :        And the modification

14   was 2010 , April .

15                      THE COURT:         Okay .   Well,   t here was another
16   modifi cation filed little over a year?

17                      MR . SCHMITZ :       Just a little bit over a

18   year -- at that case -- and her basis -- although she

19   hadn ' t   really said so ,    I think the second modification I

20   was involved in was very costly and time consuming.                   It

21   was set for a full jury trial and the whole nine yards.
22                      And I believe, Ms. Gerke is doing this

23   just to complete my clie nt's resources ; and we can ' t

24   continue to go further because she keeps filing these

25   things.      And so ,    we'd like for this to stop at some
                                                                               19
                                    Hearing
                              No vember 28 , 2011



1    point ,    but since she's bringing this up ,           we would like

2    to get some attorney fees or something for it because

3    now we're having to hire another expert.

4                      To give the judge a little education ,             in

5    the 2010 trial ,    there was a court-appointed expert ,             if

6    you wi ll ,   on a --on the children ' s mental health .

7                      THE COURT :       Okay .

8                      MR . SCHMITZ :      That particular

9    court-appointed expert was very expensive -- was paid

10   for.      She ' s in the Children Medical Center; and after

11   that trial,     she testified on behalf of my client.               This
12   is court-appointed -- not that anybody can do anything

13   with her.      She turns around -- and she , Ms . Gerke,            files

14   complaint against this particular doctor .                This

15   particular doctor don't want to              --   because of that

16   complaint .

17                     THE COURT :       Okay .

18                     MR . SCHMITZ :      This has cost us more and

19   more money every time.

20                     THE COURT:        What happened to that

21   complaint?

22                     MR.   SCHMITZ :     Pardon?

23                     THE COURT :       What happened to that

24   complaint?

25                     MR.   SCHMITZ :     They dismissed that
                                                                                20
                                      Hearing
                                 November 28, 2011



1    complaint with that particular doctor .

2                         THE COURT :      Why did t h at cos t    your client

3    anythi n g?

4                        MR . SCHMITZ :      Because that particular

5    expert ,   if you will ,      that particular person will not

6    come for ward anymore .            The modification trial also had

7    a n amicus with her.         We had to pay half of the amicus

8    costs .    And we paid money after money ,              after money ,

9    after money ,      in that case .

10                       T HE COURT :      Okay .

11                       MR.   SCHMITZ :     And so , it just kept going

12   on and on and on.          And this is a year later .           I n that
13   trial -- to let you know about the modificat i on trial ,

14   Ms . Gerke claimed the children wante d to live with her .

15   She had people ,       friends,      testify to that .       She had her

16   witnesses testify to that,             et cetera , et cetera , et

17   cetera .       The jury still found ,          it was in the best

18   i n terest ,    after hearing all t h e ev i de n ce ,     that t h e

19   children live with my client .                 Now , she ' s coming to this

20   court and saying,         well ,    the children want to live with

21   me.

22                       THE COURT :       Were any attor n ey fees

23   assessed against her in that trial?

24                       MR . SCHMITZ :      Only on appeal          only if

25   she ap p ealed .      If she appealed ,         that would be assessed
                                                                                           21
                                      Hearing
                                 November 28/ 2011



1    against her .

2                        THE COURT :        Was that the judge ' s decision

3    or the jury ' s decision?
4                        MR . SCHMITZ :       Jury ' s decisio n.          J u ry ruled

5    that if she appealed the case ,                there will be attorney

6    fees assess .

7                        THE COURT :        But they did n ' t give any

8    attor n ey ' s fees for the defense of the main case .

9                        MR.    SCHMITZ :     For         that ' s correct .          No
10   attorney fees were assessed in the main case - -                        j u st

11   that if it ' s appealed , but it is basical ly the same case

12   we l itigate all over again .              I don ' t     kn o w when it stops .

13                       THE COURT :        I don ' t    know whether it is or

14   it isn ' t .     That ' s a fact or situation that gets -- in my

15   opinion ,      it gets approached as the t rial p roceeds .

16                       MR . SCHMITZ :       Right .       But we need to be

17   able to defend ourselves --and I don ' t                     have a

18   problem          again ,   if she ' s paying for

19                       THE COURT :        I ' ll say to bot h si d es t h at

20   this kind of litigation ,          loser pays .           If you lose ,     you

21   are going to pay the attorney ' s fees for the other side .

22   If she wins you pay her attorney ' s fees .

23                       MR . SCH MITZ :      Yes ,     yo u r Ho n or .

24                       THE COURT :        We ' ll carry the attorney ' s fee

25   request in che time of trial .
                                                                               22
                                   Hearing
                              November 28, 2011



1                       MR. SCHMITZ :      And the expert fees?

2                       THE COURT :     If it ' s your   e~pert,     you pay

3    for him.    If she hires an exper t, she pays for her
4    hers.

5                       MR. SCHMITZ :      Yes,    your Honor .

6                       THE COURT :     Anything else?

7                       MS. GERKE :     May I give you my --

8                       THE COURT :     No ,   you 've already filed it;

9    and it will work its way to our file .

10                      MS . GERKE :    I have requested Court order
11   mediation because I       --
12                      THE COURT :     We require mediation in every

13   case before final trial.
14                      MS. GERKE :     I ' ve sent multiple requests to

15   Mr. Schmitz

16                      THE COURT :     I ' m just telling both of you

17   that we requ ire mediation before trial .              Anything else?

18                      MS . GERKE:     If I withdraw my petition for

19   primary custody and just request the expa nded

20   visitation ,     would that allow for just a bench trial?

21                      THE COURT :     I 'm sorry .     Does it allow

22   for --

23                      MS . GERKE :    Just a bench trial at this

24   point,   not a    jury trial?

25                      THE COURT :     Yeah ,    basically.      There's
                                                                                    23
                                       Hearing
                                 No vember 28 , 2011



1    nothing -- there is no issue for a jury to decide if you

2    make that decision .

3                         MS. GERKE :       Okay .

4                         THE COURT :       All right?         Al l   right .   Thank

5    you very much .

6                         MR.   SCHMITZ :      You said that trial is for

7    February ,     is that going to be moved now to a j ury trial?

8                         THE COURT :       No .     And I don ' t     know because

9    she ' s indicating she may withdraw her request to be

10   appointed primary .

11                        MR. SCHMITZ :        I ' m sorry .      But if she

12   doesn ' t ,   then

13                        THE COURT :       If she does not ,          as far as I'm

14   concerned ,     it ' s on a ju ry docket .

15                        MR. SCHMITZ :        Okay .    Thank you .

16                        MS . GERK E :     Your Honor ,       d i d you make a

17   ruling o n conferring my other iss u es with the

18   children --

19                        THE COURT :       I ' m not going to make that

20   ruling until we kn o w whether or not there ' s going to be

21   a jury trial or not a jury trial .

22                        MS. GERKE :       Okay ,    your Honor .

23                        THE COURT :       I need an e ntry date .

24   December 9th on the protective order .

25                        MR.   SCHMITZ :      Dece mber 9th?
                                                                                 24
                                    Hearing
                               November 28, 2011


1                       THE COURT :       Yes .

2                       MR . SCHMITZ :      9:00a . m.,       your Honor?

3                       THE COURT :       Yes.       There ' s going to be a

4    formal written order prepared.                  You ' ll have a chance to

5    review it .      If you have any problems with it ,              come in

6    and we ' l l   listen to you on December the 9th .

7                       Thank y ' all .

8                       MR.   SCHMITZ :     Thank you ,       your Honor .

9                       Your Honor

10                      THE COURT :       Yeah .      Hold on a minute.

11                      MR . SCHMITZ :      I     think ,   December 9th is

12   supposed to be advance drafting.                  Is that a Friday or

13   Thursday?

14                      THE COURT :       It ' s a    Friday.

15                      MR.   SCHMITZ :     I     think it ' s advance

16   drafting.

17                      THE COURT :       Advance drafting

18                      MR.   SCHMITZ :     Yeah --

19                      THE COURT :       -- takes preference over

20   getting this order in .

21                      MR.   SCHMITZ :     It doesn ' t ,      your Honor ,   but

22   I would ask the Court to wait one week.

23                      THE COURT :       To December 16th?

24                      MR.   SCHMITZ :     Yes ,     your Honor .

25                      THE COURT :       Okay.
                                                                     25
                                Hearing
                           November 28 , 2011



1                   MR.   SCHMITZ :     Thank you.

2                   THE COURT :       December the 16th instead of

3    the 9th.

4                   MR . SCHMITZ:       Tha nk you very much,

5    your Honor .

6                   MS . GERKE :      Thank you v ery much.

7                   (proceedings conclude d)

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                                                                   26
                                 Hearing
                            November 28 , 2011



1    STATE OF TEXAS

2    COUNTY OF HARRIS

3
4        I, Jessica J. Kim, Deputy Court Reporter in and for
5    the 311th District Court of Harris ,    State of Texas , do

6    hereby certify that the above and foregoing contains a

7    true and correct transcription of all portions of

8    evidence and other proceedings requested in writing by

9    counsel for the parties to be included in this volume of

10   the Reporter ' s Record in t he above-styled and numbered

11   cause,    all of which occurred in open court or in

12   chambers and were reported by me .

13       I    further certify that this Reporter ' s Record of the

14   proceedings truly and correctly reflects the exhibits ,

15   if any,    offered by the respective parties.

16       I    further certify that the total cost for the

17   preparation of this Reporter ' s Record is $    \j{~.~and
18   was paid/w ill be paid by

19

20
                                 Jess~ca J . Kim ,  CSR
21                               Texas CSR 8971
                                 Deputy Court Reporter
22                               311th District Court
                                 Harris County , Texas
23                               P . O . BOX 19695
                                 Houston, Texas 77224
24                               Telephone :    832-398-0576
                                 Expiration :    12/31/2013
25
EXHIBIT 2
	
                                                                                                                   Page 1




                                             FOCUS - 1 of 1 DOCUMENT

                LEANNE NICOLE WELLS, Appellant v. DOUGLAS GIBSON WELLS, Appellee

                                                 NO. 14-09-00811-CV

                  COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

                                              2010 Tex. App. LEXIS 6787


                                    August 19, 2010, Memorandum Opinion Filed

SUBSEQUENT HISTORY: Petition for review denied                record reflects that appellant waived her right of appeal to
by Wells v. Wells, 2011 Tex. LEXIS 134 (Tex., Feb. 18,        the referring court in writing at the June 18, 2009 hearing
2011)                                                         before the associate judge. See Tex. Fam. Code Ann. §
                                                              201.015(g) (Vernon Supp. 2009) ("Before the start of a
PRIOR HISTORY: [*1]                                           hearing by an associate judge, the parties may waive the
  On Appeal from the 328th District Court, Fort Bend          right of a de novo hearing before the referring court in
County, Texas. Trial Court Cause No. 09-DCV-169191.           writing or on the record."). Specifically, appellant signed
                                                              an agreed order before the associate judge that states, "I
COUNSEL: For appellants: Michael William Elliott,             hereby waive any right of appeal to the referring court
Richmond, TX.                                                 pursuant to Section 201.015(g) Texas Family Code."
                                                              Moreover, this agreed order reflects that the nature of the
For appellees: David Perwin, Rosenberg, TX; Adam J.           proceeding was a "Final Decree of Divorce." The
Morris, Houston, TX.                                          associate judge signed the order, noting that the divorce
                                                              decree would be entered on July 15, 2009. An associate
JUDGES: Panel consists of Chief Justice Hedges and            [*2] judge "may sign a final order that includes a waiver
Justices Yates and Boyce.                                     of the right of appeal pursuant to Section 201.015." Id. §
                                                              201.007(a)(16) (Vernon 2008).
OPINION
                                                                   Under these circumstances, we conclude that
                                                              appellant waived her right to appeal the associate judge's
MEMORANDUM OPINION                                            order to the referring court. We therefore overrule her
                                                              sole appellate issue and affirm the trial court's judgment.
    In her sole issue on appeal, appellant Leanne Nicole
Wells asserts that the trial court erred in ruling that her       PER CURIAM
appeal of an associate judge's entry of the final divorce
decree to the referring court was untimely. However, the




                                                   EXHIBIT 3
