                                                                                             ACCEPTED
                                                                                        01-14-00082-CV
                                                                              FIRST COURT OF APPEALS
                                                                                      HOUSTON, TEXAS
                                                                                    1/7/2015 6:01:53 PM
                                                                                   CHRISTOPHER PRINE
                                                                                                 CLERK

                             No. 01-14-00082-CV

                                                                      FILED IN
                                   IN THE                      1st COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                               1/7/2015 6:01:53 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




               JAMIL “JAMES” KANTARA’S REPLY 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

                       Appellee waives oral argument

                                    Page 1
                       TABLE OF CONTENTS


IDENTITY OF PARTIES & COUNSEL              4


STATEMENT OF ORAL ARGUMENT                 7


REFERENCE GUIDE                            8


INDEX OF AUTHORITIES                       13


ISSUES PRESENTED                           15


STATEMENT OF FACTS                         17


SUMMARY OF ARGUMENT                        22


ARGUMENT                                   25


Reply to Issue 1                           25


Reply to Issue 2                           26


Reply to Issue 3                           30


Reply to Issue 4                           33


Reply to Issue 5                           36


Reply to Issue 6                           40



                             Page 2
PRAYER                               44


CERTIFICATE OF COMPLIANCE            45


CERTIFICATE OF SERVICE               46




                            Page 3
          IDENTITIES OF THE PARTIES & COUNSEL

Mary Lynn Kantara Gerke                      Appellant


707 Almond Pointe
League City, Texas 77573
Cell: (281) 332-8858
Fax: (281) 290-0004
marykantara@gmail.com



Ashley Tomlinson                             Counsel for Appellant


1800 Saint James Place, Suite 620
Houston, TX 77056
Office: (713) 600-1717
Fax: (713) 600-1718
atomlinson@dalefamilylaw.com




Jamil “James” Kantara                        Appellee


1227 Birch Court
Friendswood, Texas 77546




                                    Page 4
Wilfried P. Schmitz                        Counsel for Appellee


17040 El Camino Real, Suite 400
Houston, Texas 77058
Office: (281) 486-5066
Fax: (281) 486-2041
wilfried@schmitzlaw.com




Douglas York                               Amicus Attorney


3355 W. Alabama, Suite 100
Houston, Texas 77098
Office: (713) 479-5555
Fax: (713) 586-5585
york@douglasyork.com


Honorable Robert Newey                     Associate Judge who
                                           presided over trial




                                  Page 5
Honorable Denise Pratt                  Former Presiding Judge
                                        Of the 311th District
                                        Court




Honorable Alicia K. Franklin            Presiding Judge of the
                                        311th District Court




                               Page 6
                        Waiver of Oral Argument

Appellee waives any request for oral arguments.




                                      Page 7
                            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


Appellee is unable to correlate the clerk’s record, supplemental clerk’s record, and

the reporter’s record cited in Appellant’s brief with the complete transcript filed by

the District Clerk with this Court of Appeals. Appellee’s brief will refer to the

record on appeal using the same designation as used by the Clerk and the Court

Reporter as follows:




                                        Page 8
Clerk’s record                             “CR __” (page number)


      (filed February 26, 2014)




Supplemental Clerk’s Record                “CRS1 __” (page number)


      (filed October 1, 2014)




Supplemental Clerk’s Record                “CRS2 __” (page number)


      (filed November 7, 2014)




Supplemental Clerk’s Record                “CRS3 __” (page number)


      (filed November 17, 2014)




Supplemental Clerk’s Record                “CRS4 __ “ (page number)


      (filed November 24, 2014)




                                  Page 9
Reporter’s Record Vol 1                     “RR1 __” (vol: page number)


      (filed February 24, 2014)




Reporter’s Record Vol 2                     “RR2 __” (vol: page number)


      (filed February 24, 2014)




Reporter’s Record Vol 3                     “RR3 __” (vol: page number)


      (filed February 24, 2014)




Reporter’s Record Vol 4                     “RR4 __” (vol: page number)


      (filed February 24, 2014)




Reporter’s Record Vol 5                     “RR5 __” (vol: page number)


      (filed February 24, 2014)




                                  Page 10
Reporter’s Record Vol 6                     “RR6 __” (vol: page number)


      (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)




                                  Page 11
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)




                                  Page 12
                      INDEX OF AUTHORITIES

Cases


Bailey v. Rodriguez, 351 S.W.3d 424 (Tex. App. El Paso 2011)…………p. 41


Bruni v. Bruni, 924 S.W.2d 366 (Tex. 1996)……………………………..p. 40


Davis v. Huey, 571 S.W.2d 859 (Tex. 1978)……………………………..p. 41


Farish v. Farish, 921 S.W.2d 538 (Tex.App.—
Beaumont 1996, no writ)…………………………………………………p. 40


Flowers v. Flowers, 407 S.W.3d 452 (Tex. App. Houston
[14th Dist.] 2013)……………………………………………………p. 28, 29, 32


Greene v. Young, 174 S.W.3d 291 (Tex. App. Houston [1st Dist.]
2005)…………………………………………………………………….p. 32


Holley v. Holley, 864 S.W.2d 703 (Tex. App. Houston [1st Dist.]
1993, writ denied)……………………………………………………….p. 41


In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)………………………...p. 26


In the Interest of Pecht, 874 S.W.2d 797 (Tex. App.—Texarkana
1994, no writ)……………………………………………………………p. 40


Mattox v. Jackson, 336 S.W.3d 759 (Tex. App. Houston 1st Dist.
2011)……………………………………………………………………..p. 41

                                     Page 13
Mansions in the Forest, L.P. v. Montgomery County,
365 S.W.3d 314 (Tex 2012)……………………………………………...p. 26


Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982)……………………p. 26


Sterling v. Alexander, 99 S.W.3d 793 (Tex. App. Houston
[14th Dist.] 2003. pet. denied)…………………………………………....p. 39


Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005)……………. ..p. 35, 37


Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013)………………………..p. 39


Wolters v. White, 659 S.W.2d 885 (Tex.App.—San Antonio
1983, writ dism’d)………………………………………………………p. 40


Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)……………………. .p. 41


Statutes


TFC § 106.002………………………. ……………..p. 16, 24, 37 40, 42, 43


TFC § 156.005………………………. …p. 15, 16, 23, 24, 36, 39, 40, 42, 43


TFC § 153.132…………………………………………………………...p. 25


Rules


TEX. R. App. P. 38.1(h)…………….......................................................p. 39


TEX R. App 33.1………………………………………………………..p. 26

                                            Page 14
                            ISSUES PRESENTED

      Reply to Issue No. 1: Appellee admits the modification of the parental

rights was not plead, but Mary failed to preserve the error for appeal.


      Reply to Issue No. 2: The trial court did not modify the existing 2010 orders

regarding James’ exclusive right to make medical, education, and welfare

decisions on behalf of the children, but only stated which method should be used.


      Reply to Issue No. 3: The trial court did not modify the existing orders with

regard to the beginning and ending times of Mary’s possession of the children.

Even if the trial court finds the adjustment of the beginning and ending time of

Mary’s possession of the children was a modification, the beginning and ending

time of Mary’s possession of the children was tried by consent. In addition,

termination of Mary’s mid-week possession was tried by consent.


      Reply to Issue No. 4: The issues regarding passports and travel restrictions

were both pled and tried.


      Reply to Issue No. 5: There is ample evidence in the record to support the

Court’s finding, Mary frivolously filed her suit for modification, the suit was

designed to harass James, and award of attorney fees under TFC §156.005 is not a

sanction.


                                       Page 15
     Reply to Issue No. 6: There is ample evidence for the award of attorney’s

fees under TFC §106.002 and/or §156.005




                                   Page 16
                        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”) (CRS1_3). Please note, this was just a

year after the previous modification trial.


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

2013, the Court entered its order (hereinafter the “2013 Order”) (CR_29). This is

an appeal from the 2013 Order.


      Mary, in her Statement of Facts, forgets or downplays the harm she has

caused her children since the 2010 Order.


      Evidence was presented when James told Mary about the children’s medical

appointments, Mary referred to James as Mr. Munchhausen (RR7_22:22-25).

James testified Mary was an impediment to obtaining medical providers for the

children (RR8_75:24-76:6).        Numerous complaints were filed against the

children’s medical providers (RR7_83:5-84:4).


    Dr. Linda Ewing-Cobb with the UT Medical Group made an assessment on

      Jonathan, the youngest child, during the 2010 trial (RR4_46:10-11). Mary

                                        Page 17
      admits she filed a complaint against Dr. Ewing-Cobbs (RR4_61:18-62:6)

      (RR5_21:10-22:4).

    Dr. Monmouth’s office told James Mary filed a complaint against Dr.

      Monmouth (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).

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

the children after receiving complaints or strongly worded letters from Mary.


    Dr. Ewing-Cobb refused to treat one of the children after Mary filed a

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

    Dr. Kennedy would not see or treat the children after receiving strong

      language emails from Mary (RR3_84:23-85:20).

    Dr. Hope Moser refused to provide any more assistance to James’ children

      because she felt she was being harassed and abused and her professional and

      personal capacity was being attacked (RR8_5:20-8:11).

    Dr. Kit Harrison wasn’t going near James’ children and evaluate them unless

      James sought specific court protection for Dr. Harrison (RR6_63:1-6).

    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).
                                      Page 18
    Jonathan Kantara was not receiving counseling because of Mary’s

      interference (RR4_45:19-47:20).

    The acrimony between Mary and James was so horrific it was affecting the

      pediatrician’s ability to provide healthcare for the children (RR6_29:21-

      30:22).



Mary has been an impediment to the children’s education.


    Mary complained about and had the elementary school diagnostician

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

    Mary tried to make changes to the children’s school schedules even though

      James had the exclusive rights to educational decisions (RR3_19:13-21:6).

    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).

    Mary threatened James to go to court if James changed the school the

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



Mary’s harassment of James.


    Mary told the children’s school James was not feeding the children

      (RR7_11:12-12:16).

                                     Page 19
    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).

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

      86:2).

    Report made to CPS James was abusing the children (RR7_13:13-14:2).

    Report made to CPS James was sexually abusing his daughter (RR7_14:18-

      25).

    Mary reported to CPS James had a history of psychological and physical

      violence (RR5_104:1-3).

    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 (RR7_15:20-16:24).

    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).



      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



                                     Page 20
case in Galveston (RR8_136:19-137:5). The Court reiterated its obstructionist

finding again in its Findings of Fact (CRS3_37—FoF 4).


      Mary made it abundantly clear she is going to continue her obstructionist

actions until she gets what she wants (RR8_88:2-14).




                                     Page 21
                SUMMARY OF THE ARGUMENT

      Appellee admits the modification of the parental rights was not plead, but

Mary failed to preserve the error for appeal – this Court should overrule Mary’s

Issue No. 1.


      The trial court did not modify the existing 2010 orders regarding James’

exclusive right to make medical, education, and welfare decisions on behalf of the

children, but only stated which method should be used. Even if the Court finds the

requirement of consultation through “OurFamilyWizard” is a modification to the

2010 Order, the issue was tried by consent. The only thing the parties have been

able to agree on is the communication method used (namely, e-mails, telephonic

and in-person communication) is not working – this Court should overrule Mary’s

Issue No. 2.


      The trial court did not modify the existing orders with regard to the

beginning and ending times of Mary’s possession of the children but merely

adjusted the pickup and return times of the children. Even if the Court finds the

adjustment of the beginning and ending times of Mary’s possession of the children




                                     Page 22
is a modification to the 2010 Order, the issue was tried by consent – this Court

should overrule Mary’s Issue No. 3.


       The trial court’s removal of Mary’s mid-week possession was tried by

consent. The record is replete with evidence supporting the Court’s decision -- this

Court should overrule Mary’s Issue No. 3.


       The issues granting James the right to apply for the children’s passports,

removal of the good cause exception, and requiring Mary to sign passport

applications for the children were pled and tried. The record is replete with

evidence supporting the Court’s decision.           The Court’s imposition of a travel

restriction to the Middle East is not error and if it was error, it is invited error – this

Court should overrule Mary’s Issue No. 4.


       There is ample evidence in the record Mary filed her modification suit

frivolously and for the purpose of harassing James. It was not error for the trial

court to allow additional findings of fact and conclusions of law to be filed and if it

was error, it was invited error.       Attorney fees under TFC §156.005 are not

sanctions but are a statutory method of awarding attorney fees as costs in

modification suits – this Court should overrule Mary’s Issue No. 5.




                                          Page 23
      There is ample evidence in the record to support the award of attorney fees

under TFC §156.005 and §106.002. The amount of attorney fees are within the

discretion of the trial court -- this Court should overrule Mary’s Issue No. 6.




                                        Page 24
                                      Argument

      Reply to Issue No. 1: Appellee admits the modification of the parental

rights was not plead, but Mary failed to preserve the error for appeal.


                                 Argument & Authorities


      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, Ashley Tomlinson, attorney 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 Ms. Tomlinson’s objection and retained the

parties as joint managing conservators; however, the Court granted James

additional exclusive rights concerning the children. The Court asked Ms.

Tomlinson which rights she was specifically worried about under TFC §153.132

(RR9_10:23-24). Ms. Tomlinson 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_10:25-12:6). Ms. Tomlinson failed to

object there were no pleadings on file to support the modified rights.




                                       Page 25
      Ms. Tomlinson’s failure to specifically object there were no pleadings on

file to support modifying the rights deprived the Court the ability to cure the

alleged defect at the time of the hearing.


      As a prerequisite to preserving a complaint for appellate review, the record

must show the complaint was made to the trial court and state the grounds for the

ruling the complaining party sought from the trial court with sufficient specificity

to make the trial court aware of the complaint. TEX R. APP 33.1


      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)


      Appellee concedes he did not specifically plead for the modification of the

exclusive rights awarded to James but argues Mary did not preserve error.




      Reply to Issue No. 2: The trial court did not modify the existing 2010

orders regarding James’ exclusive right to make medical, education, and

welfare decisions on behalf of the children, but only stated which method

should be used.



                                        Page 26
                                Argument & Authorities


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

(RR8_87:14-21). The prior modification order dated April 15, 2010 (hereinafter

the “2010 Order”) gave James certain exclusive rights with regard to the children

but conditioned those rights upon James consulting with Mary (CRS1_8). 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 (CRS1_5).


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

the children’s health, education, and welfare (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).

Numerous complaints were filed against the children’s medical providers, school

officials, and James (See Statement of Facts).        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).

                                        Page 27
      Even though James has sent over 2,000 pages of emails in consultation with

Mary regarding the children’s health, education and welfare, the parties are still not

communicating effectively regarding scheduling children’s medical appointments

(RR3_89:10-91:17), educational decisions (RR3_19:4-21:6, RR3_24:9-23), and

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

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


      Looking at the record, it is 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.”

(CR_54).    It is important to note neither party is appealing this method of

consultation.


      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.


      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


                                       Page 28
which     method should be       used.    Mary does    not appeal the       use   of

“OurFamilyWizard.”


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

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

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

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


        Mary argued the Court included the provision James has the right to consent

to medical, dental, and surgical procedures on behalf of the children with the

option to consult with Mary. Mary fails to point out James is still required to


                                         Page 29
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.




         Reply to Issue No. 3: The trial court did not modify the existing orders

with regard to the beginning and ending times of Mary’s possession of the

children. Even if the trial court finds the adjustment of the beginning and

ending time of Mary’s possession of the children was a modification, the

beginning and ending time of Mary’s possession of the children was tried by

consent. In addition, termination of Mary’s mid-week possession was tried by

consent.


                              Argument and Authorities


         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 the conduct
                                       Page 30
of Mary had negatively affected the children and continuation of Mary’s mid-week

possession would harm the children (CRS3_37: FoF 5).


      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 the oldest special needs child as simple and simple minded

(RR6_19:3-14). The middle child was missing school exhausted, stressed out, and

fatigued (RR6_26:7-12). The youngest special needs child needs 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).


      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

                                      Page 31
when the children are dismissed from school until 6:00 p.m. on Sunday. Note 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.


      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.


      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). There is ample evidence the parties argued over

whether Mary should have overnight mid-week possession of the children (See


                                      Page 32
above). Appellee concedes after a thorough search of the record, Appellee cannot

point this Court to a reference wherein the parties specifically argued Mary’s three-

hour mid-week possession be terminated other than Mary’s testimony.            Appellee

believes the Court can infer from the record and Mary’s statement James didn’t

think the children should have mid-week possession, the parties impliedly

consented to trial on termination of Mary’s mid-week possession.




      Reply to Issue No. 4:         The issues regarding passports and travel

restrictions were both pled and tried.


                              Argument & Authorities


      James wanted to take his children on a cruise around the Gulf of Mexico.

Mary prevented James from taking the cruise with the children because she would

not let James obtain passports for the children (RR8_81:1-83:18).


      The 2010 Order provided either parent may apply for the children’s

passports and the other parent shall provide consent in writing within ten days

unless the parent has good cause for withholding that consent (CRS1_3 Page 9-10

of record). The Order did not provide for international travel restrictions.


                                       Page 33
      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). Please note, James has always

been of Lebanese heritage even when he was married to Mary. Lastly, Mary told

the children they would never get a passport because James was trying to eliminate

Mary from the children’s lives (RR7_29:4-11).


      James, in his Third Amended Petition, plead for modifications of the

passport provision (CR_4 Page 6 of the Reporter’s Record). Specifically, James

requested: (i) the exclusive right to apply for the children’s passports and (ii) Mary

be ordered to sign authorizations for international travel of the children.


      Mary, in her Fourth Amended Petition, requested the court to: (i) restore

(sic) the Court’s orders restricting either party from obtaining travel passports

and/or foreign travel documents for the children and (ii) limit travel to the United

States (CRS1_37 Page 40). As noted above, the 2010 Order did not restrict either

party from obtaining travel passports and/or foreign travel documents for the

children.


      During trial, Mary accused James of trying to kidnap the children and take

them to Lebanon (RR13_6-8) even though James is a U.S. Citizen and has not




                                        Page 34
been out of the country in over 30 years (RR8_82:4-83:14). James stipulated to a

Lebanon travel restriction (RR8_111:1-8).


      At the conclusion of the trial, the Court granted James’ request for the right

to apply for the children’s passports and ordered Mary to execute any passport

application forms for the children requested by James within 10 days of

presentment of the form by James (CR_34). In addition, Mary requested and the

Court granted the travel restriction be expanded to include the Middle East

(RR8_136:10-14).


      If there is any error expanding the travel restriction to the Middle East, it is

invited error. 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. Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005). Mary is the

party who asked for expanded travel restriction to include the Middle East and if it

was error for the Court to grant her request, it was invited error and Mary may not

complain about it now.




                                       Page 35
      Reply to Issue No. 5: There is ample evidence in the record to support

the Court’s finding, Mary frivolously filed her suit for modification, the suit

was designed to harass James, and award of attorney fees under TFC

§156.005 is not a sanction.


                              Argument & Authority


      There are three subparts to Mary’s fifth issue and each will be separately

dealt with below.


Invited Error


      Mary submitted her Additional Findings of Fact and Conclusions of Law

(CRS2_3) which stated in pertinent part:


      4.    Mary Gerke frivolously filed a suit for modification.


      5.    Mary Gerke’s suit for modification was designed to harass

            Respondent, Jamil “James” Kantara.


      On the day of the hearing for Mary’s requested additional findings, Mary

withdrew her requests 6 (now 4) and 7 (now 5) and counsel for James requested

Mary’s withdrawn findings be submitted as James’ requested findings (RR0_6:15-

8:20). Please note, Mary did not withdraw her Conclusion of Law wherein she

requested attorney fees be awarded pursuant to TFC§156.005 as well as TFC

                                      Page 36
§106.002. The Court had previously found Mary was an obstructionist (CRS3_37-

38 FoF 4 and 8).


      Mary complains the trial court did not have jurisdiction to make such

findings. The Reporter’s Record shows the following:


          The trial court filed its Findings of Fact and Conclusions of Law on

            March 27, 2014 (CRS3_37).

          Ms. Tomlinson, attorney for Mary, represented to the Court and

            counsel for James on October 10, 2014 she did not receive notice the

            Court issued its Findings of Fact and Conclusions of Law (RR0_5:15-

            17).

          Based upon Ms. Tomlinson’s representation, the parties agreed to

            extend the deadline for Ms. Tomlinson to submit her requested

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

          On October 30, 2014, the Court signed the Additional Findings of

            Fact and Conclusions of Law requested by Mary (CRS2_3-4).

      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.

Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005).


      Mary is the party who asked for additional time to file additional findings of

                                      Page 37
fact and conclusions of law. If it was error for the Court to grant her motion for

additional time, it was invited error and Mary may not complain about it now. In

addition, Mary did not object to the inclusion of additional findings 4 and 5 at the

hearing and any error was waived.


Mary’s suit was filed frivolously and was 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 history suggests that

Mary’s Motion to Modify is consistent with an overall pattern of harassing

behavior directed at prolonging litigation and draining James’ resources. Mary

specifically told James unless she gets what she wants, it’s going to cost James an

exorbitant amount of money while she’s representing herself with minimal cost

(RR8_87:22-88:8).


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

obstructionist regarding the welfare of the children since the prior modification

proceeding (CRS3_37). Mary or her boyfriend filed numerous complaints against


                                      Page 38
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

campaign to harass James (See Statement of Facts). As further proof of Mary’s

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).


Award of attorney’s fees under TFC §156.005 are not sanctions.


     The Court’s award of attorney fees pursuant to TFC §156.005 is not a

sanction and the Court need not provide specifics to justify the findings Mary’s

modification suit was frivolous and for the purpose of harassing James.


     A trial court may tax attorney fees as costs against the offending party in a

modification suit if the Court finds the suit was filed frivolously or designed to

harass a party. Tucker v. Thomas, 419 S.W.3d 292, 296 (Tex. 2013).


     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 other than her

claim of a sanction. 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).

                                      Page 39
         Reply to Issue No. 6:       There is ample evidence for the award of

attorney’s fees under TFC §106.002 and/or §156.005


                                Argument & Authorities


         James’ attorney fees were offered and proved during trial. The Court found

a reduced amount of James’ attorney fees was reasonable and necessary in this

modification suit (CRS3_38 FoF 9). Mary does not challenge the amount of

attorney fees awarded to James, nor does she challenge said fees were reasonable

and necessary. Mary argues attorney fees should not be awarded as a sanction

under TFC §156.005 and she cannot afford the attorney fees under TFC §106.002.


         The award of attorney’s fees in a suit affecting the parent-child relationship

is within the trial court’s discretion. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.

1996).


         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,

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). In

addition, TFC §156.005 authorizes an attorney fee award in modification

                                         Page 40
proceedings when the court believes the suit was frivolous or for the purpose of

harassment.


      The standard of review for a trial court’s decision on award of attorney fees

is abuse of discretion. The test is whether the trial court acted without reference to

any guiding rules or principles; in other words, whether the act was arbitrary or

unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). 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. 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).


      During trial, James’ attorney fees were offered, proved, and admitted into

evidence (RR10_3-27) (RR11_3-27) (RR12_3-29) (RR8_33:23-35:20) (35:24-

36:9-14). During the proceedings, Mary filed over 57 motions (RR13_3-5). The

trial court in its Findings of Fact and Conclusions of Law number 9 found James

Kantara requested and proved attorney’s fees and expenses in the amount of
                                       Page 41
$108,811.93 (CRS3_38). The Court awarded $50,000.00 attorney’s fees to

Wilfried Schmitz, attorney for James, which the Court found to be reasonable and

necessary. Mary has not challenged said findings.


      The trial court further found, in its Additional Conclusions of Law number

2, attorney fees would be awarded pursuant to TFC §106.002 and §156.005

(CRS2_4).


      Mary claims the Court cannot award attorney fees under TFC §156.005

because her modification suit was not filed frivolously or designed to harass James.

Evidence was presented which demonstrated the continual harassment by Mary of

James (See Statement of Facts) and Mary’s intent to continue litigating until she

gets what she wants (RR8_87:22-88:8). To prove her point, Mary filed her suit for

modification three days after James told her he was thinking about changing one of

the children’s schools (RR7_32:10-22).


      The Court found Mary was an obstructionist (CRS3_37) and Mary’s suit

was filed frivolously and designed to harass James (CRS2_3). Mary is now asking

this Court to substitute its judgment for that of the trial court albeit there was more

than ample evidence to support the trial court’s findings.


      Additionally, the trial court awarded attorney fees under TFC §106.002.

Mary does not challenge the reasonableness and necessity of James’ attorney fees

                                        Page 42
but only that she cannot afford to pay them. It should be pointed out Mary earns

$6,786.00 per month plus an additional $1,000.00 per month as car reimbursement

for a total of $7,786.00 per month (RR7_67:17-68:1). In addition, Mary, in her

affidavit attached to her brief, claimed she paid her appellate attorney over

$30,000.00. The trial court heard Mary’s testimony and determined $50,000.00

was reasonable in light of Mary’s financial condition and obstructionist attitude.


      The trial court did not abuse its discretion in awarding attorney fees under

either TFC §156.005 or TFC §106.002.




                                       Page 43
                                   PRAYER

      Even a cursory review of the evidence and the pleadings demonstrates that

the trial court correctly ruled on Appellant’s issues no. 1 through 6 in rendering

judgment for Appellee. For the reason stated in this brief, Appellee asks the Court

to overrule Appellant’s issues no. 1 through 6.



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

                                                                  Digitally signed by Wilfried Schmitz

                                            Wilfried Schmitz      DN: cn=Wilfried Schmitz, o=Wilfried P. Schmitz
                                                                  P.C., ou, email=wilfried@schmitzlaw.com, c=US
                                       BY: _________________________
                                                                  Date: 2015.01.07 17:53:07 -06'00'


                                           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




                                       Page 44
                         Certificate of Compliance

Pursuant to TRAP 9.4(i)(3), I hereby certify that this brief contains 5,039 words as

determined by the word processor function excluding exempted items as listed

under TRAP 9.4 (i)(1)

                                                                         Digitally signed by Wilfried Schmitz
                                                                         DN: cn=Wilfried Schmitz, o=Wilfried P.
                                                     Wilfried Schmitz    Schmitz P.C., ou,
                                                                         email=wilfried@schmitzlaw.com, c=US
                                                BY: _________________________
                                                                         Date: 2015.01.07 17:52:38 -06'00'

                                                      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




                                      Page 45
                      CERTIFICATE OF SERVICE

           This is to certify that a true and correct copy of the foregoing Jamil

“James” Kantara’s Reply Brief has this 7th day of January, 2015, been sent

pursuant to T.R.A.P. 9.5 (b)(1) by electronic mail, to the following:

                           Mary Lynn Kantara Gerke
                                707 Almond Pointe
                             League City, Texas 77573
                             marykantara@gmail.com


                                 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
                                                                    Digitally signed by Wilfried Schmitz

                                             Wilfried Schmitz       DN: cn=Wilfried Schmitz, o=Wilfried P. Schmitz P.C., ou,
                                                                    email=wilfried@schmitzlaw.com, c=US

                                       BY: _________________________Date: 2015.01.07 17:52:06 -06'00'


                                             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


                                       Page 46
