                                                                                ACCEPTED
                                                                            01-15-00224-CV
                                                                 FIRST COURT OF APPEALS
                                                                         HOUSTON, TEXAS
                                                                     12/15/2015 12:15:41 PM
                                                                      CHRISTOPHER PRINE
                                                                                     CLERK

                     Appellant's Brief

                Appeal No. 01-15-00224-CV
                                                            FILED IN
                                                     1st COURT OF APPEALS
                  In the Court of Appeals                HOUSTON, TEXAS
                                                    12/15/2015 12:15:41 PM
                First District Court of Texas        CHRISTOPHER A. PRINE
                                                             Clerk
                      Houston, Texas

          __________________________________

           TODD DAVID ROGERS, APPELLANT

                             V

            GINA MARIE ROGERS, APPELLEE

           __________________________________
            Trial Court Case No 12-DCV -199022
              The Honorable James Shoemake
    434 Judicial District Court, Fort Bend County, Texas
       th

       _________________________________________


                  APPELLANT'S BRIEF
                       Walter P. Mahoney Jr
                       State Bar No.: 12844600
                       3668 Burke
                       Pasadena, Texas 77504
                       (281) 998-9450
                       (281) 998-9430
                       ATTORNEY FOR APPLICANT

                       ORAL ARGUMENT REQUESTED




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Identity of Parties and Counsel

        The following is a list of all parties and all counsel in this matter:

Appellant: Todd Rogers

Trial Court Attorney for Appellant:

Walter P. Mahoney, Jr., 3668 Burke , Pasadena, Texas 77504

Appellee : Gina Marie Rogers

Trial Court attorney for Appellee: Marlene Zimmeister 106 Gunther Street , Sugar Land, Texas

77478

Trial Court Judge: The Honorable James Shoemake , 434th Judicial District Court , 1422 Eugene

Heiman Circle , Richmond, Texas 77469




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Table of Contents

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

Table of Contents.................................................................................................ii

Table of Authorities............................................................................................iii

Statement of the Case...........................................................................................5

Statement of Jurisdiction......................................................................................7

Issues Presented...................................................................................................5
        Issue Number One....................................................................................5
        Issue Number Two....................................................................................5


Statement of Facts.................................................................................................6

Argument and Authorities
     Issue Number One Restated......................................................................6
     Argument and Authorities.........................................................................6-8
     Issue Number Two Restated......................................................................8
     Argument and Authorities.........................................................................8-9



Prayer...................................................................................................................9

Certificate of Service............................................................................................10




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                                              Table of Authorities

 Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238 (Tex. 1985), cert. denied, 476 U. S. 1159, 106
S.Ct. 2279, 90L.Ed. 721 (1986) ………………………………………………..................6, 18

Grandinetti v. Grandinetti , 600 S.W. 2d. 371 (Tex. App. -Houston{14th} 1980 no writ)...........9

Hughes v. Hughes No-12-07-00313-CV (Tex. App. Tyler {12th Dist.} 2009)…..........................9

Lenz v. Lenz , 060602 TXSC, 01-0232 (Tex. 2002)..............................................………………....7

In Re Stephanie Lee, No. 11-073 (Tex. 2013) ………………………………..........…..7

In Re L.R.P., 98 S W 2d 312 (Tex. App.-Houston {1st Dist. } 2003, pet. dism'd)..........8

Villasenor v. Villasenor, 911 S.W2d 411 (Tex. App.-San Antonio1995 no writ. ).........9

Worford .v Stamper, 801 S.W.2d 108 (Tex. 1990)...........................................................8

Statutes

Texas Family Code Section 105.002 ( c ) (D) ………..............................……………........….13

Texas Family Code 151.001…………………………..…………….....…….…..........….14




                                                         iii




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TO THE HONORABLE JUDGES OF SAID COURT:

          Comes now Todd Rogers who file this Appellant’s Brief and who would show unto this Court as
follow:

                                            STATEMENT OF THE CASE

This is an appeal from a jury trial and a subsequent Court Trial on the issues that were not decided by

the jury. The sole question presented to the jury was which parent should establish the primary physical

residence for the minor children the subject of the lawsuit. The jury verdict designated the father and

the remaining issues were submitted to the trial Court. The Appeal is being prosecuted without the

benefit of the Reporter’s Record because the Appellant feels the error of the Trial Court can be

established based upon the Clerks record alone. This Appeal follows.

                                       Statement of Jurisdiction
This Court has jurisdiction over a direct appeal from the 43th District Court of Ft Bend County,
Texas


                                            Issue Number One



          The trial court erred in its allocation of rights and duties as a matter of law by giving both

parents the right to make educational decisions for the children.



                                            Issue Number Two



          The trial court erred by entering an order that allowed the Appellee to avoid her responsibility

to support her children by entering an order that created a basis of alternative method of achieving


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credit for funds not actually paid.



                                   STATEMENT of the FACTS



          This is an appeal from a divorce case that was tried to a jury. The only issue that the jury was to

decide was which parent would establish the primary physical residence of the children. That issue was

submitted to the jury and they reached a verdict whereby they indicated that the primary physical

residence of the children should be established by Appellant.1 When it came time to enter a judgment,

on the jury’s verdict the trial court issued an order that delegated the rights of each of the parents with

regard to the children. Under the terms of that rendition the trial court gave Appellant and Appellee the

right to make educational decisions for the children and in so doing negated the effect of the jury’s

verdict.2

                                      Issue Number One Restated



          The trial court erred in its allocation of rights and duties as a matter of law by giving both

parents the right to make educational decisions for the children.



                                       ARGUMENT AND AUTHORITIES



The Texas Family Code defines what issues a litigant is entitled to have submitted to a jury.

Under section 105.002 (C) a person is entitled to the benefit of a jury verdict on the issue of establishing

the primary physical residence of the children. In this case the court entered a judgment that gave

Appellant the right to establish the primary physical residence of the children but in addition he

gave the Appellee the independent right to make educational decisions for the children. In doing that he

is allowing her to make the decision where the children will attend school, setting up a direct conflict

with the right of the Appellant to establish the primary physical residence of the children. This court will

only disturb the decision from the court below when there is an abuse of discretion. An abuse of


1   Cr Supplemental Clerks Record page 47
2   CR decree Supplemental Clerks Record page 47

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discretion occurs when a court acts without regard to guiding principles of law. When the legislature

gives a litigant an absolute right to a jury verdict on establishing the primary physical residence part and

parcel of that right is the right to make educational decisions for the children especially the location

where the children will attend school. When the court gives both of the parents right to make

educational decisions be it either exclusive or independent then there is an immediate conflict if the

parents are at loggerheads in making the decision of where the children will attend school. The right to

establish the primary physical residence of the children has got to encompass some basic rights that

include at the very least the ability to determine where the children attend school. If that were not the

case and both parents have the right to make educational decisions the non-primary parent would be

able to select a school district beyond the living area where the custodial parent has established the

primary physical residence of the children. If this were to happen then the school district where the

children were to attend, based upon the right to establish the primary physical residence, will be in

conflict with a decision by a parent who has the right to make educational decisions for the child. The

effect is that if the court gives the noncustodial parent the right to make education decisions along with

the custodial parents the Court has abused its discretion by failing to rule. The children are left in a

position without a resolution and the school district is unable to know who is correct or in charge. It also

will have the effect of negating the jury verdict if the non-custodial parent exercises her authority from

the trial Court. 3

         This is a significant portion of the trial Court’s responsibility in dissolving the marriage. This is no

different than what the Texas Supreme Court has said is prohibited when the Legislature defines a

parent’s rights under provisions in the Texas Family Code. 4 With Stephanie Lee it was the right to entry

of a judgement upon the entry of a Mediated Settlement Agreement. In this case it is a jury verdict on

the right to establish the primary physical residence of the child. When a court acts contrary to guiding

principles of law the court abuses its discretion and the decision should be reversed. A trial Court abuses

its discretion when it acts arbitrarily and without regard to guiding principles of law. 5 Appellant

contends by making a decision to give both parents the right to make educational decisions he has failed

3 Lenz v. Lenz , 060602 TXSC, 01-0232 (Tex. 2002)
4 In Re Stephanie Lee No. 11-0732. (Tex.2013)
5 Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238 (Tex. 1985), cert. denied, 476 U. S. 1159, 106 S.Ct. 2279,

90L.Ed. 721 (1986)

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to render a judgement that judicially determines all the issues before the court and acted in a fashion

that is arbitrary and unreasonable. 6



                                        Issue Number Two Restated



The trial court erred by entering an order that allowed the Appellee to avoid her responsibility to

support her children by entering an order that created a basis of alternative method of achieving credit

for funds not actually paid.

                                    ARGUMENT AND AUTHORITIES

         This Court will not disturb an order for child support on a direct appeal unless the complaining

party can demonstrate a clear abuse of discretion. 7 This translates into a review that looks at whether

or not the Trial Court acted without regard to guiding principles of law or in a fashion that is arbitrary

and capricious. 8 In this particular appeal this Court is being asked to reverse the judgement of the lower

court without regard to the evidence presented in that court. Appellant contends that on the face of the

clerk’s records this case should be reversed because the trial court has entered an order that is contrary

to guiding principles of law and constitutes an abuse of discretion. The air that is demonstrated on the

face of the court record is the nature of the order for periodic child support. The trial court gives the

appellee an opportunity to opt out of paying periodic support for the children by giving her a credit or

sums of money that were part and parcel of the division of the community estate at the time of the

divorce. If this type of arrangement is allowed to discharge an obligation for support carried to its logical

wrong conclusion a party in a divorce action would be able to negate their entire support obligation by

claiming that the other party owed them money as a result of the court prior property division. In fact, if

this methodology for payment is allowed to exist one of the litigants could take the position that at the

time of the property division the court allocated certain death to each of the parties and because the

custodial parent didn’t pay the child support obligate the thing the prior credit obligations allocated in

6 Supplemental Clerk's record p 47
7 Worford v, Stamper, 801 S.W.2d 108 (Tex. 1990)
8 In Re L. R. P., 98 S.W.3d 312 (Tex. App, - Houston {1stDist.} 2003, pet. Dism’d)


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the decree the noncustodial parent could avoid paying child support by paying other creditors. This type

of an arrangement is contrary to guiding principles of law because it enables parents to avoid providing

periodic support for children to the custodial parent. 9 When a court acts contrary to guiding principles


of law or in a fashion that is arbitrary and unreasonable that court abuses its discretion. When the court

enters an order that enables one of the parents to avoid their obligation or periodic support for the

children that order is contrary to guiding principles of law which mandate that both parents support the

children.10 Once financial ability to pay is demonstrated, there is a statutory mandate to order payment

from the non-custodial parent to the custodial parent. 11 in this lawsuit the trial court made such an

order but a bomb making the order issued a counter demanding order that enabled and enables the

parent to avoid periodic payments. Appellant contends that providing this type of an Avenue of

satisfying the periodic child support obligation to the appellee the court is active in violation of the

provisions of the Texas family code and contrary to guiding principles of law. Such actions constitute and

rise to the level of an abuse of discretion that would warrant the reversal of the underlying judgment by

this court. 12

                                                      Prayer

         Wherefore, premises considered, Appellant prays that this Court review the foregoing

authority and arguments of Counsel and upon such review reverse the judgment of the trial court in

accordance with the assertions herein and remand this cause to the trial court for further proceedings

consistent with the law.




9 Hughes v. Hughes No-12-07-00313-CV (Tex. App. Tyler {12th Dist.} 2009)
10 Texas Family Code 151.001
11 Villasenor v. Villasenor 911S.W.2d 411 (Tex. App. -San Antonio 1995 no writ)
12 Grandinetti v. Grandinetti , 600 S.W. 2d. 371 (Tex. App. -Houston{14th} 1980 no writ)


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                                   Certificate of Service


       I, Walter P. Mahoney Jr. certify that a true copy of this Appellant's Brief was
served in accordance with rule 9.5 of the Texas Rules of Appellate Procedure on each
party or that party’s lead counsel as follows:


Marlen Zinsmiester 106 Gunther Street, Sugarland, Texas 77478, Texas
Trial Counsel for Gina Marie Rogers
Method of service: certified mail, return receipt requested and electronic Service
Date of Service: 12-15-15


The Honorable James Shoemake, 1422 Eugene Heimann Circle, Richmond, Texas 77469


Method of service: US Postal Service


Date of service: All of these done on the 15thth day of December 2015.


       A copy of this notice is being filed with the appellate clerk in accordance with rule
25.1(e) of the Texas Rules of Civil Procedure.




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                                        /S/Walter P. Mahoney Jr ______________
                                        Attorney for Appellant


I, Walter P. Mahoney Jr. , do hereby certify that the foregoing document contains
2,192words.


                                        /s/Walter P. Mahoney Jr. ______________
                                        Walter P. Mahoney Jr.




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