The opinion
ACCEPTED
03-14-00117-CV
3807595
THIRD COURT OF APPEALS
AUSTIN, TEXAS
January 16, 2015 1/16/2015 11:44:13 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00117-CV
IN THE COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT OF TEXAS
AT AUSTIN
NASH JESUS GONZALES
AND GONZALES & GONZALES, P.C.,
APPELLANTS
v.
MARISSA ANN GONZALES,
APPELLEES
From the 200th District Court , Travis County Texas
The Honorable Lora J. Livingston, Presiding
Trial Court No. D-1-FM-11-005140
NASH JESUS GONZALES AND GONZALES & GONZALES, P.C.’S
APPELLANTS’ BRIEF
Thomas B. Cowart Wasoff & Cowart, P.L.L.C.
Texas Bar No. 00787295 100 North Central Expressway, Suite 901
tom@tcowart.com Richardson, Texas 75080
Tel: (214) 692-9700
Fax: (214) 550-2674
Attorneys for Appellants Nash Jesus Gonzales
and Gonzales & Gonzales, P.C.
ORAL ARGUMENT REQUESTED
January 16, 2015
IDENTITY OF PARTIES AND COUNSEL
Appellants: Nash Jesus Gonzales
Gonzales & Gonzales, P.C.
Counsel for Appellants:
On Appeal: Thomas B. Cowart
Texas Bar No. 00787295
Wasoff & Cowart, P.L.L.C.
100 North Central Expressway, Suite 901
Richardson, Texas 75080
Tel: (214) 692-9700
Fax: (214) 550-2674
tom@tcowart.com
At Trial: Cecilia M. Wood
State Bar No. 21885100
Attorney and Counselor at Law, P. C.
1122 Colorado Street, Suite 100B
Austin, Texas 78701
Telephone: 512-708-8783
Facsimile: 512-708-8787
Laura Martinez,
State Bar No. 13142705
2221 Hancock Drive
Austin, Texas 78756
(512) 535-3322
Appellee: Marissa Ann Gonzales
Counsel for Appellee:
On Appeal and At Trial Michael Burnett
Texas Bar No. 00780399
Jeff Miller
Texas Bar No. 24008714
Armbrust & Brown, PLLC
Brief of Appellants Page i
100 Congress Ave., Suite 1300
Austin, Texas 78701
Phone: 512-435-2315
Fax: 512-435-2360
E-mail: mburnett@abaustin.com
Brief of Appellants Page ii
TABLE OF CONTENTS
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vi
Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix
Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Issue 1. Should the Trial Court have granted Appellant a new trial
because the jury’s verdict on the geographic restriction on
the children’s principal residence is unsupported by any
evidence? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Issue 2. Did the Trial Court abuse its discretion by including the
individual assets (or former assets) of the parties’ dissolved
partnership in the community estate?.. . . . . . . . . . . . . . . . . . . . x
Issue 3. Did the Trial Court abuse its discretion by imposing a fee
division among attorneys that is contrary to the Rules of
Professional Conduct?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Issue 4. If the Trial Court properly included the partnership assets
in the community estate, did it nevertheless abuse its
discretion in dividing those assets because its ruling is not
supported by an adequate evidentiary basis? . . . . . . . . . . . . . . x
Issue 5. Did the Trial Court abuse its discretion by dividing the
former spouses separate property future earnings as part of
the community estate?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Brief of Appellants Page iii
I. The Trial Court erred by rendering judgment on the basis of a jury
verdict which was not supported by legally or factually sufficient
evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. The jury’s decision is subject to challenge on the basis of the
sufficiency of the evidence to support the verdict. . . . . . . . . . . . . . . . 7
B. There is a complete absence of evidence that allowing
relocation anywhere within the State of Texas is in the best
interest of the children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Dr. Alissa Sherry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Nash Gonzales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
3. Marissa Gonzales. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4. Other witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
5. Closing argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
C. To the extent the “best interest factors” were addressed in the
evidence, none of it supports a Texas wide restriction. . . . . . . . . . . 14
D. There is no evidence in this record supporting the jury’s verdict and
the judgment should be reversed and remanded for a new trial on
the geographic restriction issue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
II. The Trial Court erred and abused its discretion in its treatment of the
inventory of cases previously held by the Partnership. . . . . . . . . . . . . . . . . 16
A. The Trial Court, not the jury, considered all property issues
involved in the divorce. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
B. The Trial Court’s inclusion of the fees flowing from the
Partnership cases in the community estate was a clear error of law
and so an abuse of discretion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Brief of Appellants Page iv
1. Because the partners do not have an ownership interest
in partnership assets, the interest in the cases could never
be part of the community estate. . . . . . . . . . . . . . . . . . . . . . . . 25
2. After the Partnership withdrew from the cases there was
no fee interest left to be divided as a matter of law. . . . . . . . . 27
3. In addition, the Trial Court’s ruling is contrary to the
evidence as the Partnership contracts tracked this provision
of Texas law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
4. Because the Trial Court erroneously included the fee
interest in the Partnership’s former inventory of cases
in the community estate, the property division must be set
aside and remanded. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
C. The Trial Court’s order to divide the fees among attorneys who are
not in the same firm without client consent is void as against
public policy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
D. The Trial Court’s division of the fee generated by the “Bucket 2"
cases is not supported by the evidence and so is an abuse of
discretion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
E. The Trial Court’s attempt to divide the Bucket 3 cases fee is
erroneous as it divides future income which is not part of the
community estate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Brief of Appellants Page v
INDEX OF AUTHORITIES
Cases Page Nos.
Augustson v. Linea Aerea Nacional-Chile S.A.,
76 F.3d 658 (5th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Bader v. Cox,
701 S.W.2d 677 (Tex. App. 5th Dist. 1985, writ ref’d n.r.e). . . . . . . . . . . . . . . 34
Bocquet v. Herring,
972 S.W.2d 19 (Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Counsel Financial Services, L.L.C. v. Leibowitz,
2013 WL 3895331 (Tex. App.–Corpus Christi 2013, pet. denied). . . . . . . . . . 30
Cruse v. O'Quinn,
273 S.W.3d 766 (Tex. App.–Houston [14th Dist.] 2008, pet. denied). . . . . . . . 30
Davis Law Firm v. Bates,
2014 WL 585855 (Tex. App.–Corpus Christi 2014, no pet.). . . . . . . . . . . . . . 30
Deinhart v. McGrath-Stroatman,
2010 WL 4595708 (Tex. App.–Austin 2010, pet. denied). . . . . . . . . . . . 7, 8, 16
Destec Energy, Inc. v. Houston Lighting & Power Co.,
966 S.W.2d 792 (Tex. App.–Austin 1998, no pet.). . . . . . . . . . . . . . . . . . . . . . 25
Diaz v. Attorney General of State of Tex.,
827 S.W.2d 19 (Tex. App.–Corpus Christi 1992, no writ) .. . . . . . . . . . . . . . . 27
French v. Law Offices of Windle Turley, P.C.,
2010 WL 744794 (Tex. App.–Fort Worth, 2010, no pet.) . . . . . . . . . . . . . . . . 27
Giesler v. Giesler,
2010 WL 2330362 (Tex. App.–Austin 2010, no pet.).. . . . . . . . . . . . . . . . . . . 31
In re Lovell-Osburn,
2014 WL 4931302 (Tex. App.–Houston [14th Dist.] 2014, no pet.). . . . . . . . . 30
Brief of Appellants Page vi
In re Texas Dep't of Family & Protective Servs.,
210 S.W.3d 609 (Tex. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Jackson v. Jackson,
2011 WL 3373290 (Tex. App.–Austin 2011, no pet.).. . . . . . . . . . . . . 26, 31, 33
Lenz v. Lenz,
79 S.W.3d 10 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8
Mandell v. Mandell,
310 S.W.3d 531 (Tex. App.–Fort Worth 2010, pet. denied). . . . . . . . . 26, 33, 34
Marshall v. Marshall,
735 S.W.2d 587 (Tex. App.–Dallas 1987, writ ref’d n.r.e.). . . . . . . . . . . . . . . 26
McFadden v. Deedler,
2014 WL 4364540 (Tex. App.–Austin 2014, no pet.).. . . . . . . . . . . . . . . . . . . 25
Rodgers v. Rodgers,
2014 WL 1604332 (Tex. App.–Amarillo 2014, no pet.). . . . . . . . . . . . . . . . . . 33
Royden v. Ardoin,
331 S.W.2d 206 (Tex. 1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Smith v. Smith,
836 S.W.2d 688 (Tex. App.–Houston [1st Dist.] 1992, no pet.). . . . . . . . . . . . 33
Stanley v. Reef Secs., Inc.,
314 S.W.3d 659 (Tex. App.–Dallas 2010, no pet.). . . . . . . . . . . . . . . . . . . . . . 26
Staples v. McKnight,
763 S.W.2d 914 (Tex. App.–Dallas 1988, writ denied) . . . . . . . . . . . . . . . . . . 28
Von Hohn v. Von Hohn,
260 S.W.3d 631 (Tex. App.–Tyler 2008, no pet.). . . . . . . . . . . . . . . . . . . . 33, 34
Williams v. Sinclair–Prairie Oil Co.,
135 S.W.2d 211, 216 (Tex. Civ. App.–Texarkana 1939,
writ dism'd judgm't cor.).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Brief of Appellants Page vii
Yasin v. Yasin,
2011 WL 5009895 (Tex. App.–Austin 2011, no pet.).. . . . . . . . . . . . . . . . . . . . 7
Young v. Young,
168 S.W.3d 276 (Tex. App.–Dallas 2005, no pet.). . . . . . . . . . . . . . . . . . . . . . 26
Statutes and Rules Page Nos.
TEX. BUS. ORG. CODE ANN. § 152.056
(Westlaw 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
TEX. BUS. ORG. CODE ANN. § 152.101
(Westlaw 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
TEX. DISCIPLINARY RULES OF PROF. 1 CONDUCT R. 1.04(f),
reprinted in Tex. Gov’t. Code Ann., tit. 2, subtit. G, app. A
(West 2013) (Tex. State Bar R. art. X, § 9). . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
TEX. FAM. CODE ANN. § 153.001
(Westlaw 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
TEX. FAM. CODE. ANN. § 105.002
(Westlaw 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Brief of Appellants Page viii
STATEMENT OF THE CASE
This appeal arises out of a divorce and child custody/support suit (CR 6). The
issues of conservatorship, the right to designate the children’s primary residence, and
any geographic restriction on that residence were tried to a jury (CR 342). Based on
the jury’s verdict, the Trial Court rendered judgment naming Nash Gonzales and
Marissa Gonzales joint managing conservators and awarding Marissa Gonzales the
exclusive right to designate the primary residence of their two children restricted to
the entire State of Texas (CR 680, 682). All property issues were presented for
decision to the Trial Court (XV RR 4) and the judgment included the Trial Court’s
division of the community estate (CR 702). After their joint Motion for New Trial
and to Reconsider (CR 715) was denied by operation of law, Appellants brought this
appeal to challenge the provisions of the judgment rendered by the Trial Court (CR
730).
STATEMENT REGARDING ORAL ARGUMENT
Appellants believe that the Court’s decisional process would be aided by
holding oral argument in this matter because the Record is extensive and the issues
require both a thorough examination of the lengthy record on the one hand and the
application of multiple legal principles on the other, both areas which Appellants
believe discussion with Counsel would be beneficial.
Brief of Appellants Page ix
ISSUES PRESENTED
Issue 1. Should the Trial Court have granted Appellant a new trial
because the jury’s verdict on the geographic restriction on
the children’s principal residence is unsupported by any
evidence?
Issue 2. Did the Trial Court abuse its discretion by including the
individual assets (or former assets) of the parties’ dissolved
partnership in the community estate?
Issue 3. Did the Trial Court abuse its discretion by imposing a fee
division among attorneys that is contrary to the Rules of
Professional Conduct?
Issue 4. If the Trial Court properly included the partnership assets
in the community estate, did it nevertheless abuse its
discretion in dividing those assets because its ruling is not
supported by an adequate evidentiary basis?
Issue 5. Did the Trial Court abuse its discretion by dividing the
former spouses separate property future earnings as part of
the community estate?
Brief of Appellants Page x
STATEMENT OF FACTS
This proceeding involves the end of two partnerships, one matrimonial, one
professional. Although the record is lengthy and the proceedings complicated, for the
purposes of the issues presented on appeal, the decisional facts necessary for Court’s
consideration are comparatively narrow. Those facts, though, are more efficiently
examined in the context of the issues to which they relate and so Appellants present
only an overview of the factual matters at this point, reserving the more detail
discussion for the analysis of the issues below.
The parties, Nash Gonzales and Marissa Maggio, are both practicing attorneys
(VI RR 76). They met while taking the bar exam preparation class in Austin, Texas
in 1996 (VI RR 17). After falling in love and getting married, they began their
professional careers and family life in Austin, creating the law firm of Gonzales &
Gonzales, GP (referred to here as “the Partnership”) and having two children, B.G.,
born in 2005 and G.G., born in 2008 (VI RR 18, 41-43). In both of these areas, Nash
and Marissa experienced success, creating both a vibrant, growing personal injury
practice sufficient to support and amply provide for the family and nurturing the
children they had brought into the world.
Ultimately, Marissa determined that the problems she saw in the marriage
outweighed the good that she found in it and filed for divorce (CR 6). In her
pleadings, Marissa requested that she be named sole managing conservator of the
Brief of Appellants Page 1
couple’s two children, that she be allowed to designate their primary residence, and
that there be no geographic restriction on the location where she could designate that
residence (CR 283). Nash, on the other hand, asked that the parties be named joint
managing conservators of the children, that he be allowed to designate their primary
residence, and that the children’s residence be restricted to Travis County, Texas (CR
189). Marissa also asked for a disproportionate division of the parties’ community
property while Nash asked simply for a just and right division of the community
estate (CR 283-84; 190-91).
On Nash’s request (CR 184; III RR 17), the court empaneled a jury to hear the
parties’ dispute (IV RR 42). Although Marissa had pled a number of tort/commercial
claims against both Nash and Appellant Gonzales & Gonzales, P.C. pertaining to the
dissolution of the Partnership (CR 286-288), ultimately the jury was called upon to
decide only the conservatorship, residence, and geographic restrictions issues (CR
347-350, 679). By its verdict, the jury determined that Marissa and Nash should be
appointed joint managing conservators of the children, that Marissa should have the
right to designate the primary residence of the children, and that the children’s
primary residence should be restricted to anywhere in the State of Texas (CR 347-
350).
Although the jury’s verdict disposed of the conservatorship issues, it did not
address any part of the controversy between Nash and Marissa regarding the
Brief of Appellants Page 2
disposition of their property (apparently because the parties agreed to withdraw any
“property issues” from the jury and submit them to the Court for decision (XIII RR
97-98; XIV RR 75-76; XV RR 4)). The primary issues in contention concerned the
inventory of cases once held by the parties’ law practice partnership, Gonzales &
Gonzales, GP (XIII RR 83-84). There were two primary questions that consumed the
Trial Court’s and the parties’ energy in wrestling with the Partnership issue.
First, the parties clashed over the characterization of the fee interest in the
inventory of cases. The Partnership almost exclusively handled personal injury cases
on a contingent fee basis (V RR 87-88). In May 2012, during the pendency of the
divorce action, by Rule 11 Agreement, the Partnership was dissolved and its clients
given the option of choosing an attorney to retain to handle the matter going forward
(CR 136). As part of that Agreement, a letter signed by both Nash and Marissa was
sent to each of the Partnership’s clients, notifying them of the dissolution–that Nash
and Marissa were separating their practices–and asking the client to choose new
counsel–Nash at his new practice, Marissa, or a different attorney or firm
altogether–to proceed with the case (CR 520; XV RR 20). This letter was signed by
both Nash and Marissa (CR 521; XV RR 20). Nash and Gonzalez & Gonzalez, P.C.
contended that the withdrawal of the Partnership from representing these clients
terminated any potential claims the parties might have to the fee from the cases and
that these individual cases were never part of the community estate, as they were
Brief of Appellants Page 3
property of the partnership, not Nash or Marissa individually, under partnership
principles (CR 503-527; XV RR 17-24). Marissa, on the other hand, asserted that the
parties had an interest in the individual cases that required division by the Trial Court
(XV RR 28).
The second issue involved a methodology for valuing the parties’ interests in
the individual cases, should the Trial Court determine that the value was subject to
division. Nash contended that the Trial Court could not divide the unrealized fee for
cases that were still pending at the time of the divorce but if it could, it was required
to give the attorney who worked the case a greater percentage of the fee (XV RR 31).
Marissa, on the other hand, asserted that she still had a direct interest in the fee
generated by each case no matter when the case was resolved or how much post-
divorce effort was required to handle the case and that the fee was required to be
divided 50/50 (XIII RR 93-95).
Ultimately, the Trial Court ruled that the cases were community property and
divided the value of the cases as part of its "just and right" allocation of the parties'
community estate, ordering that the fee generated from each individual file be split
between Nash and Marissa, 60/40 with the handling party getting a 60% share of the
fee (CR 541, 703-705).
Appellants challenged the Trial Court’s acceptance of the jury’s verdict on the
evidence presented during the trial and its rulings on the disposition of the
Brief of Appellants Page 4
Partnership issues through a variety of methods, including ultimately in their Second
Motion for New Trial (CR 715) filed after the Court rendered the Amended/Corrected
Final Decree of Divorce (CR 679). That motion was overruled by operation of law
and Appellants timely brought this appeal to challenge the Trial Court’s rulings on
these matters (CR 730).
SUMMARY OF ARGUMENT
Nash first brings a challenge to the sufficiency of the evidence to support the
jury’s verdict on the geographic restriction on the primary residence of the children.
All of the evidence and argument presented by the parties were directed to only two
choices for this restriction–Travis County, Texas or no restriction at all so that
Marissa Gonzales was free to move to the New York state area to be closer to her
family of origin. It was never suggested by evidence or argument that it would be in
the children’s best interest to allow Marissa to move them out of Austin to anywhere
in Texas. The first and only time that this restriction was suggested at any point in
the trial was by the jury’s verdict. There is no evidence in this record supporting the
jury’s decision and so the judgment based on that verdict must be set aside.
Secondly, both Appellants assert that the Trial Court erred in its treatment of
the individual cases making up the inventory of the parties’ dissolved law practice.
On the parties’ agreement, the Partnership was dissolved and its interest in the
individual client files relinquished. Thus, there was nothing left to divide from a
Brief of Appellants Page 5
partnership perspective. And the Court cannot divide the fruits of the parties’ post-
divorce effort as part of the division of the community estate. Because there was no
evidence that the community estate had any claim to any value represented by the
individual cases, the Trial Court abused its discretion by including those items in its
judgment. In addition, the Trial Court abused its discretion by dividing the total fee
generated from the files thereby depriving Gonzales & Gonzales, GP, a stranger to
the marriage, of its property right to the fee in the cases that it handled.
ARGUMENT
There are two areas in the Trial Court’s judgment being challenged here. Each
will be analyzed in turn.
I. The Trial Court erred by rendering judgment on the basis of a jury verdict
which was not supported by legally or factually sufficient evidence
Appellant Nash Gonzales first challenges the sufficiency of the evidence to
support the jury’s verdict on the geographic restriction to be placed on the children’s
primary residence. As he will show, the jury’s verdict on this issue is subject to
review for evidentiary support and that support is lacking. As a result, the Trial
Court’s judgment should be reversed and this matter remanded for a new trial on this
issue.
Brief of Appellants Page 6
A. The jury’s decision is subject to challenge on the basis of the
sufficiency of the evidence to support the verdict
The Family Code allows for a party to request a jury trial on the question of a
geographic restriction to be placed on the primary residence of a child after a divorce.
TEX. FAM. CODE. ANN. § 105.002(c)(1)(E), (F) (Westlaw 2015). Although section
105.002(c)(1) provides that “the court may not contravene a jury verdict” on the
geographic restriction, id., the jury’s verdict is subject to the usual requirements that
the finding be supported by the pleadings and the evidence. Lenz v. Lenz, 79 S.W.3d
10, 19 -21 (Tex. 2002); Deinhart v. McGrath-Stroatman, 2010 WL 4595708, 5 -8
(Tex. App.–Austin 2010, pet. denied); see also Yasin v. Yasin, 2011 WL 5009895
(Tex. App.–Austin 2011, no pet.). When considering a challenge to the evidence
supporting a jury verdict on a residency restriction, this Court should “view the
evidence produced relevant to the best-interest factors in a light that tends to support
the jury’s verdict.” Lenz, 79 S.W.3d at 17. As explained by this Court, those “best-
interest factors” are:
(1) the reasons for and against the move, including the parents' good
faith motives in requesting or opposing it; (2) comparison of education,
health, and leisure opportunities; (3) the degree of economic, emotional,
and educational enhancement for the custodial parent and the child; (4)
the effect on extended family relationships; (5) accommodation of the
child's special needs or talents; (6) the effect on visitation and
communication with the noncustodial parent to maintain a full and
continuous relationship with the child; (7) the possibility of a visitation
schedule allowing the continuation of a meaningful relationship between
the noncustodial parent and the child; and (8) the noncustodial parent's
ability to relocate.
Brief of Appellants Page 7
Deinhart, 2010 WL 4595708, *6 (citing Lenz, 79 S.W.3d at 15-16). The ultimate
question is whether there was sufficient evidence adduced that would allow
reasonable and fair minded people to reach the finding arrived at by the jury. Id. at
*7.
B. There is a complete absence of evidence that allowing relocation
anywhere within the State of Texas is in the best interest of the
children
From beginning to end of the jury trial of this matter, all of the evidence and
argument was directed to the children either living in Travis County or in New York
(or possibly Connecticut). No witness, no document, and no argument supports the
jury’s verdict on the geographic restriction, as a thorough review of the record
demonstrates.
1. Dr. Alissa Sherry
The first witnesses to testify was Dr. Alissa Sherry, a psychologist agreed to
by the parties to do a custody evaluation in this case (IV RR 59-60, 64). Among other
issues, she was tasked with analyzing whether a move to New York would be in the
best interest of the children (IV RR 68). In her testimony, Dr. Sherry unambiguously
concluded that allowing the children to relocate to New York would be in their best
interest (IV RR 178-192) testifying that Marissa’s desire to move was not motivated
by an intent to hurt Nash (IV RR 180), that the educational and extra circular
opportunities for the children would be equal between New York and “here” (IV RR
Brief of Appellants Page 8
182), that the children would benefit from having access to Marissa’s extended family
in New York (IV RR 182-183), and that the proposed move to New York was a
developmentally opportune time in the children’s lives (IV RR 183-184). She agreed
that it was best interest of the children for them to move to New York (IV RR 192-
193).
On cross examination, Dr. Sherry stoutly defended her opinion that the children
would benefit from moving to New York (V RR 180-189), explicitly comparing and
contrasting it to Austin. Not once in Dr. Sherry’s testimony did she consider a
restriction to any location other than Austin or New York. In fact, at no point was she
asked to consider or testify concerning a residence for the children other than New
York or Austin.
2. Nash Gonzales
Nash Gonzales, called out of order as Marissa’s second witness, also testified
about the children’s best interest with respect to the location of their residence. He
testified that if Marissa chose to move to New York it would be in the children’s best
interest, “based on the support I have here,” for the children to stay with him in
Austin (V RR 33). He acknowledged that Marissa was born and raised in New York,
that they were married in New York, that Marissa’s extended family lives in New
York, that the children had spent holidays and summer weekends in New York, (V
RR 34-36), but that “it's not in the best interest of the boys to move to New York” (V
Brief of Appellants Page 9
RR 41). In conclusion, Nash was clear: “Well, I -- I want the boys to stay in Austin,
Texas or Travis County” (V RR 248).
Recalled in his own case in chief, Nash again testified repeatedly that he didn’t
believe it was in the children’s best interest to move to New York (VIII RR 166)
stressing how important it is that the children be restricted to a specific county (VIII
166-168) as it was not in their best interest for him to have to follow Marissa around:
Q. Okay. And were you trying to pin down -- like, are you -- do you
think that it's in the boys' best interest for you to have to follow Mrs.
Gonzales from place to place and pick up and move and get another job
every time she changes her mind or she gets a different job?
A. No. And I wanted the boys to have consistency and I wanted to be
close by. And I knew that, especially with drop offs and pick ups, I
wanted to know how we were going to do it and where it would be done
because it was already difficult with my sister just being in the middle.
I was imagining, what is it going to be like if I'm in upper New York
State and Marissa's in lower New York State? How am I going to get my
Thursday possession? I wanted to know what county.
(VIII CR 167-68). He also summarized what made Austin a better choice for the
children’s residence than New York:
This is our home, this has been our home, and this is what -- all the boys
know. They were both born here, they're Austinites, and they love their
cousins --they were with their cousins yesterday. They -- that's all they
know.
(VIII CR 168).
He went on to identify what his sons would lose if they were to move to New York:
Q . . . . Okay. List all of the things that the children are going to lose
if they move to New York.
Brief of Appellants Page 10
A. They're going to miss Alexa.
Q. Who's Alexa?
A. Their cousin, Alexa . . . my sister's daughter. They're going to miss
Cousin Natalie, they're going to miss Cousin David. They're going to
miss Cousin Elena, they're going to miss Cousin Steven, they're going
to miss Aunt Deana, that Uncle Stevie, Aunt Elsa, Uncle JT, they're
going to miss Eric, they're going to miss Uncle Lupe, they're going to
miss all of these people -- they're going to miss Logan. They're going to
miss all of these friends -- Zach, you know, just all these friends that
they have here. And, you know, the environment -- I mean also it's very
different. I mean, we have different weather, different pace of life, you
know. I -- it makes me sad to imagine them living in bunk beds and I
love Helen and I think she's a wonderful grandmother, and I love Joe. I
don't think he's such a wonderful grandfather, but I do not -- I know that
my boys would be miserable in that -- in that -- on bunk beds in Orange
County without me there. That would be a sad, sad scene and they would
be very distressed.
Q. You pointed out here to Eric; who are these people that have been
coming in every day during this trial?
A. Family, friends, church members, prayer warriors. I have my Uncle
Lupe who's one of 11. He's the eldest of 11 children. My mother's
brother, Eric – he's like a brother to me.
Q. And is this your support system here?
A. Yes.
Q. And is this the system that helps you parent these boys?
A. (Nodding head up and down.)
(VIII RR 168-170). At no point was Nash asked to consider or testify concerning a
residence for the children other than New York or Austin.
Brief of Appellants Page 11
3. Marissa Gonzales
Marissa also testified extensively about the choice between New York and
Austin. She indicated that she had been born in New York and had moved to Austin
to run track while at the University of Texas (VI RR 17). She explained the plan she
had laid and the preparations she had made in anticipation of moving with the
children to New York (VI RR 24-33; VII RR 50-55), including that she could live
rent free with her parents at a place familiar to the children (VI RR 26-27), that she
had a school picked out for them (VI RR 29), had a pediatrician picked out for them
(VI RR 30), that she was licensed in New York and Connecticut (VI RR 31), and that
she had several employment opportunities already waiting for her in New York,
including a “friend [who] is a partner in a personal injury firm [who] said if you're
able to come up here, we're going to make room for you” (VI RR 32). She indicated
that her plan to move to New York was in the best interest of the children (VI RR
122). Just as with Nash, at no point was Marissa asked to consider or testify
concerning a residence for the children other than New York or Austin.
4. Other witnesses
Other witnesses also testified about the comparison between New York and
Austin for the children’s residence. Helen Maggio, Marissa’s mother and the
children’s grandmother, explained that a move to New York “would be a very easy
transition for [the children] because they're very familiar with the area and with the
Brief of Appellants Page 12
things that they have there” (VI RR 132). Dina Law, Nash’s sister, testified that the
younger children on Nash’s side of the family have a “[v]ery powerful, very loving”
relationship (IX RR 98) and that she agreed with Nash that the children would be best
off in Austin (IX RR 100-101). Elsa Finnen, another of Nash’s sisters, testified that
her daughters, who are close in age to Nash and Marissa’s sons, “adore their boys”
and two of the cousins “are practically twins” (IX RR 103). None of these witnesses
mentioned any location for the children’s residence other than New York or Austin.
5. Closing argument
Finally, the parties’ positions and the relevant evidence is highlighted by the
closing arguments presented by Marissa and Nash. Marissa stressed Dr. Sherry’s
opinion that “it's in the best interests of the children to allow her to move up to New
York” (XII RR 15; also XII RR 18, 26, 45), compared the family support Marissa
could find in Austin to the support she would enjoy in New York (XII RR 17), and
stressed that Marissa was “not taking [the children] to some strange place” (XII RR
18). Marissa urged the jury not to make her “stay in Austin” but to “let her move up
to New York, like Dr. Sherry recommends” (XII RR 26).
Nash, on the other hand, urged the jury to restrict Marissa’s ability to move
with the children:
If you give her the primary residence, that's not a problem, but don't give
her an unlimited geographic restriction. Make her stay in Travis County.
Because today it's New York and tomorrow it's Connecticut, because
that's a possibility. I mean, she has this job lead, but then she posted this
Brief of Appellants Page 13
website just three weeks ago -- she told you he'd given her almost
$80,000 in an eight and-a-half month period but she didn't have the
website to post until just a few weeks ago, and she's got an Austin
office, so she can stay here and maybe start building a practice in
Connecticut, maybe they can come up with a game plan, or in New
York. Or, if she has no geographic restriction she can take them out of
the country. And what is he supposed to do? Is he supposed to pick up
and follow them here and then she has -- Dr. Sherry says she has this
trial and error approach, follow them there. Keep these children here.
(XII RR 41).
In short, this trial was focused on two choices, Austin or New York, not “some
strange place” anywhere in Texas. There is no evidence in the record justifying or
even addressing any other location in Texas as an appropriate restriction on the
children’s residence.
C. To the extent the “best interest factors” were addressed in the
evidence, none of it supports a Texas wide restriction
Specifically addressing the Lenz best interest factors, no evidence supplies any
support for a Texas state wide geographic restriction on even one of those factors, as
summarized in this chart:
factor Evidence Evidence Evidence
addressing addressing addressing
Austin New York all of Texas
Motivation for V RR 186, 188-89 IV RR 180–181
location VIII RR 168-170 V RR 188-189
Comparison of IV RR 182 IV RR 182
opportunities
enchantment IV RR 182 IV RR 182
opportunities
Brief of Appellants Page 14
extended family IV RR 183 IV 182-183, 192
relationships V RR 33, 184, V 35-36, 180-183,
186, 188, 236 188
VI RR 28
accommodation of VIII 161-162, 164 IV RR 183-184
needs and talents V RR 181
effect on V RR 33, 186 IV RR 179, 192
noncustodial V RR 58-60, 185,
relationship 187
visitation VIII RR 150 V 58-60, 187-188
schedule
noncustodial V RR 225, 239, V RR 225, 227,
parent’s ability to 249 233-234, 239, 249
relocate
The blanks on the far right of this table are critically important. There is no evidence
in this record supporting a conclusion that a Texas-wide geographic restriction is in
the best interest of the children. The jury’s verdict should have been set aside.
D. There is no evidence in this record supporting the jury’s verdict
and the judgment should be reversed and remanded for a new
trial on the geographic restriction issue
As shown here, because there is a complete absence of evidence to show that
a Texas wide geographic restriction is in the best interest of Marissa and Nash’s
children, the jury’s verdict is not supported by legally sufficient evidence. As a
result, the Trial Court’s judgment violates both the primary “best interest of the
children” requirement and Texas’s public policy supporting the parent-child
relationship as expressed in section 153.001 of the Texas Family Code. TEX. FAM.
Brief of Appellants Page 15
CODE ANN. § 153.001 (Westlaw 2015); Deinhart, 2010 WL 4595708, *6. The
judgment must be set aside and this matter remanded for a new trial on the geographic
restriction issue.
II. The Trial Court erred and abused its discretion in its treatment of the
inventory of cases previously held by the Partnership
The second area challenged in this appeal involves the Trial Court’s treatment
of the inventory of cases formerly held by the parties’ law practice partnership. As
Appellants will show here, those cases were never part of the parties’ community
estate and so the Trial Court should not have included any fees generated by the
individual case in its “just and right” division of the parties’ property. To the extent
that the fee interest in the files were once Partnership assets that may have been
subject to the Trial Court’s judgment, the Partnership gave up its interests in the fees
when it voluntarily withdrew from the cases and so, again, there was no Partnership
interest to be divided by the Trial Court by the time of the divorce. And, in fact, by
attempting to divide the gross fee of the individual files, the Trial Court improperly
deprived Gonzales & Gonzales, P.C. of its interest in that fee. And, finally, to the
extent that any of the fees could be characterized as community property, there is no
evidence in this record to support the Trial Court’s conclusion that all of the fee
should be included in the community estate for division.
Brief of Appellants Page 16
A. The Trial Court, not the jury, considered all property issues involved
in the divorce
Apparently the parties agreed to withdraw any "property issues" from the jury
and submit them to the Court for decision (XIII RR 97-98; XIV RR 75-76; XV RR
4)). On this record, this would include any of the tort and commercial claims pled in
Marissa’s Seventh Amended Petition for Divorce and Suit for Damages (CR 281) her
live pleading on the day on the day of trial and throughout the remainder of the
proceedings. Ultimately, the Trial Court did not grant Marissa any relief on any of
the pleaded civil causes of action, choosing instead to resolve all property issues
through its “just and right” division of the community estate (CR 702-705, 712).
The post-verdict effort to address the division of the parties’ property took up
some of the first post-verdict hearing (XIII RR 81 to end) and all of the second two
post-verdict hearings (XIV RR & VX RR). In considering the issue of the
Partnership’s inventory of cases, the Trial Court and the parties referred to the cases
as being in different “buckets” (XIII RR 84-92). The different buckets were
identified as:
Bucket 1: entire universe of Partnership cases on the date of dissolution of
the Partnership (XIII RR 84-85);
Bucket 2: cases resolved and on which income was received after the date
of dissolution of the Partnership (May 30, 2012) but prior to the
divorce judgment (XIII RR 85);
Bucket 3: cases still pending as of the divorce judgment (XIII RR 87);
Brief of Appellants Page 17
Bucket 4: cases originated by Nash after the dissolution of the Partnership
through his new practice, Gonzales & Gonzales, GP (XIII RR
90);
Bucket 5: cases originated by Marissa after the dissolution of the
Partnership through her new practice (XIII RR 92).
Under this scheme, the Trial Court and the parties were able to narrow the
matters in dispute to the Bucket 2 and Bucket 3 cases only (XIII RR 102). That was
because the Bucket 2 and Bucket 3 cases were subsets of the Bucket 1 cases and
represented the only cases on the Bucket 1 list that required allocation; all of the other
Bucket 1 cases that did not appear in the 2 or 3 Buckets had been concluded and the
fees divided by the parties prior to the dissolution of the Partnership (XIII RR 101).
Buckets 4 and 5, which represented cases opened by the parties individually after the
Partnership was dissolved, were agreed to be treated as the separate property of the
party who was working the case (XIII 99-101) and were recognized as separate
property in the divorce decree (CR 704 ( H-11), 705 ( W-11)). Buckets 2 and 3 were
the focus of the property dispute.
Ultimately, Bucket 2 became Court’s Exhibit 8 (XX RR Ct. Ex. 8 (.pdf page
26)) and Bucket 3 became Court’s Exhibit 9 (XX RR Ct. Ex. 9 (.pdf page 65)), as
introduced into evidence at the April 1, 2013 hearing (XIV RR 21, 25). Marissa
continued to contend that she maintained an interest in the individual cases past the
Partnership’s dissolution and withdrawal from the files (XIV RR 70-71, 80-81, 84-
85). Nash, proceeding pro se at this point, did not address the issue directly at this
Brief of Appellants Page 18
hearing but his questioning of Marissa made plain his continued opposition to her
claims.
The final substantive hearing on the Partnership issue was held on April 10,
2013 (XV RR 1, 7). Nash, again represented by counsel, provided his “Brief in
Support of Respondent's Valuation of Gonzales and Gonzales, General Partnership”
with attached exhibits, to the Trial Court (which the Trial Court acknowledged and
indicated would be considered) (XV RR 17, 23, 24). Nash also orally presented the
arguments regarding the Partnership to the Trial Court at this hearing, asserting that
after dissolution of the Partnership and the voluntarily relinquishment of the
representation in favor of the client’s chosen attorney, as to the Bucket 3 cases
(pending, not resolved) “neither of these parties owns those cases” but that the cases
were “owned by the new partnership” (XV RR 20). Thus, because the cases were
“not community property, it’s not divisible by the Court” (XV RR 21). Nash also
argued that Marissa’s claim to an interest in the cases was improper because it
violated the prohibition of fee sharing in the Rules of Professional Conduct and
because the cases were not “assets owned by these individuals” (XV RR 21).
The Trial Court acknowledged that it understood Nash’s argument:
The question you raise is whether or not those cases are still considered part
of the marital estate. And that is just an issue that's in dispute, which we've
talked about a number of times. But that's really the question.
Brief of Appellants Page 19
And your argument is, as I understand it, which is the same argument that Mr.
Gonzales has advanced for a long time now, is that they're not. I get that.
Anything else?
But, I mean, that's where -- that's what we've been fighting about. That's --
that's what we fight about at every hearing.
...
So we've been around and around on this issue a number of times. And I'm just
going to have to decide it at some point, which I will do. But it's not a novel
argument this time.
(XV RR 22, 23).
When offered the opportunity to respond, Marissa simply reiterated her
position that the cases were “assets of the partnership” (XV RR 28), asserted that she
was entitled to a $45,000 award as a division of the Bucket 2 cases (pending at
dissolution, resolved before the divorce decree) and suggested that the Bucket 3 case
fees should be divided 55/45, with the handling attorney receiving 55% of the fee
generated by the file (XV RR 29-3).
Ultimately, the Trial Court issued a letter announcing its decision on the
property issues (CR 531). With regard to the Partnership issues, the Trial Court
initially indicated that it was awarding Nash “60% of the Gonzales & Gonzales, GP
matters after dissolution that are pending/not settled (‘Bucket 3')” and Marissa “40%
of the Gonzales & Gonzales, GP matters after dissolution that are pending/not settled
(‘Bucket 3')” (CR 531). Responding to a letter from Marissa asking for clarification
(CR 536), the Trial Court indicated that with respect to the Bucket 3 cases (pending
Brief of Appellants Page 20
not resolved) it “intend[ed] that the party that retained the case and worked it to
conclusion get 60% and the other party get 40%” and with respect to the Bucket 2
cases (pending at dissolution, resolved before divorce decree) cases “the parties will
split the net proceeds equally” (CR 541).
These rulings were incorporated into the divorce decree through the Trial
Court’s division of the marital estate, both in its award of property and its assignment
of debt:
Division of Marital Estate
The Court finds that the following is a just and right division of the parties'
marital estate having due regard for the rights of each party and the children of
the marriage.
Property to Husband
IT IS ORDERED AND DECREED that the husband, NASH JESUS
GONZALES, is awarded the following as his sole and separate property, and
the wife is divested of all right, title, interest, and claim in and to that property:
...
H-7. Fifty percent (50%) of any fees earned on the Gonzales & Gonzales, GP
cases which were settled or resolved prior to the date of dissolution of the
marriage, which is February 25, 2013. This share shall be calculated after the
party who advanced the out-of-pocket case expenses is reimbursed. However,
in the event he expense was paid by Gonzales & Gonzales, GP, then such case
expense amount shall be paid fifty percent (50%) to NASH JESUS
GONZALES and fifty percent (50%) to MARISSA ANN GONZALES.
H-8. Sixty percent (60%) of any fees earned on the Gonzales & Gonzales, GP
unsettled cases retained by NASH JESUS GONZALES after dissolution of
Gonzales & Gonzales, GP which were not settled or resolved as of the date of
dissolution of the marriage, which is February 25, 2013. This share shall be
calculated after the party who advanced the out-of-pocket cases expenses is
reimbursed. However, in the event he expense was paid by Gonzales &
Brief of Appellants Page 21
Gonzales, GP, then such case expense amount shall be paid fifty percent (50%)
to NASH JESUS GONZALES and fifty percent (50%) to MARISSA ANN
GONZALES.
H-9. Forty percent (40%) of any fees earned on the Gonzales & Gonzales, GP
unsettled cases retained by MARISSA GONZALES after dissolution of
Gonzales & Gonzales, GP which were not settled or resolved as of the date of
dissolution of the marriage, which is February 25, 2013. This share shall be
calculated after the party who advanced the out-of-pocket cases expenses is
reimbursed. However, in the event he expense was paid by Gonzales &
Gonzales, GP, then such case expense amount shall be paid fifty percent (50%)
to NASH JESUS GONZALES and fifty percent (50%) to MARISSA ANN
GONZALES.
H-10. Fifty percent (50%) of any fees earned on the Gonzales & Gonzales, GP
unsettled cases which were referred to another attorney for handling. This
share shall be calculated after the party who advanced the out-of-pocket
expense is reimbursed. However, in the event the expense was paid by
Gonzales & Gonzales, GP, then such expense amount shall be paid fifty
percent (50%) to NASH JESUS GONZALES and fifty percent (50%) to
MARISSA GONZALES.
H-11. Subject to the property division set out in the foregoing H-7 through
H-10, NASH JESUS GONZALES is awarded as his separate property his new
law firm, Gonzales & Gonzales, P.C. However, nothing in this paragraph shall
be interpreted to modify the property division set out in paragraphs H-7
through H-10.
Property to Wife
IT IS ORDERED AND DECREED that the wife, MARISSA ANN
GONZALES, is awarded the following as her sole and separate property, and
the husband is divested of all right, title, interest, and claim in and to that
property:
...
W-7. Fifty percent (50%) of any fees earned on the Gonzales & Gonzales, GP
cases which were settled or resolved prior to the date of dissolution of the
marriage, which is February 25, 2013. This share shall be calculated after the
party who advanced the out-of-pocket case expenses is reimbursed. However,
in the event he expense was paid by Gonzales & Gonzales, GP, then such case
Brief of Appellants Page 22
expense amount shall be paid fifty percent (50%) to NASH JESUS
GONZALES and fifty percent (50%) to MARISSA ANN GONZALES.
W-8. Forty percent (40%) of any fees earned on the Gonzales & Gonzales, GP
unsettled cases retained by NASH JESUS GONZALES after dissolution of
Gonzales & Gonzales, GP which were not settled or resolved as of the date of
dissolution of the marriage, which is February 25, 2013. This share shall be
calculated after the party who advanced the out-of-pocket cases expenses is
reimbursed. However, in the event he expense was paid by Gonzales &
Gonzales, GP, then such case expense amount shall be paid fifty percent (50%)
to NASH JESUS GONZALES and fifty percent (50%) to MARISSA ANN
GONZALES.
W-9. Sixty percent (60%) of any fees earned on the Gonzales & Gonzales, GP
unsettled cases retained by MARISSA GONZALES after dissolution of
Gonzales & Gonzales, GP which were not settled or resolved as of the date of
dissolution of the marriage, which is February 25, 2013. This share shall be
calculated after the party who advanced the out-of-pocket cases expenses is
reimbursed. However, in the event he expense was paid by Gonzales &
Gonzales, GP, then such case expense amount shall be paid fifty percent (50%)
to NASH JESUS GONZALES and fifty percent (50%) to MARISSA ANN
GONZALES.
W-10. Fifty percent (50%) of any fees earned on the Gonzales & Gonzales, GP
unsettled cases which were referred to another attorney for handling. This
share shall be calculated after the party who advanced the out-of-pocket
expense is reimbursed. However, in the event the expense was paid by
Gonzales & Gonzales, GP, then such expense amount shall be paid fifty
percent (50%) to NASH JESUS GONZALES and fifty percent (50%) to
MARISSA GONZALES.
W-11. Subject to the property division set out in the foregoing W-7 through
W-10, MARISSA GONZALES is awarded as his separate property her new
law firm, the Law Offices of Marissa Maggio a/k/a the Law Offices of Marissa
Maggio Gonzales. However, nothing in this paragraph shall be interpreted to
modify the property division set out in paragraphs W-7 through W-10.
Division of Debt
Debts to Husband
Brief of Appellants Page 23
IT IS ORDERED AND DECREED that the husband, NASH JESUS
GONZALES, shall pay, as a part of the division of the estate of the parties, and
shall indemnify and hold the wife and her property harmless from any failure
to so discharge, these items:
...
H-3. The sum of $44,815.39 to MARRISA GONZALES for her equal share of
the net proceeds of the Gonzales & Gonzales, GP cases settled after dissolution
of Gonzales & Gonzales, GP and prior to the dissolution of the marriage,
which is February 25, 2013.
(CR 702-706).
As Appellants Nash and Gonzales & Gonzales, P.C. will show, these orders constitute
an abuse of the Trial Court’s discretion as the orders are legally erroneous and not
supported by any evidence.
B. The Trial Court’s inclusion of the fees flowing from the Partnership
cases in the community estate was a clear error of law and so an abuse
of discretion
First, both Nash and Gonzales & Gonzales, P.C., contend that the Trial Court
committed a clear error of law when it included the Partnership’s former cases fees
in the community estate. This is error for two distinct reasons. First, the interest in
the individual cases themselves, and so the fees flowing from that interest, was never
in the community estate as the individual partners do not have an ownership interest
in specific partnership assets–only the partner’s interest in the partnership itself is
personal property and so potentially a part of the community estate. Secondly, even
if the ownership of the individual partnership assets somehow poured into the
Brief of Appellants Page 24
community estate, when the Partnership voluntarily withdrew from the cases and
turned the representation back to the clients for choosing another attorney, the
Partnership forfeited its fee interest in those cases as a matter of law and under the
Partnership’s contract with the clients.
A trial court that fails to properly analyze and apply the law has committed an
abuse of discretion. In re Texas Dep't of Family & Protective Servs., 210 S.W.3d
609, 612 (Tex. 2006); McFadden v. Deedler, 2014 WL 4364540, 1 -2 (Tex.
App.–Austin 2014, no pet.). The Trial Court did so here and its decision on the fee
interest in the files ought to be set aside.
1. Because the partners do not have an ownership interest in
partnership assets, the interest in the cases could never be part
of the community estate
First, the Trial Court could not divide the value of the individual files as these
interest were never part of the community estate. Texas has adopted the entity
theory as to partnerships; any transfer of assets, money, property or liabilities between
the GP and the individual partners is a transfer between separate entities. This is both
codified and affirmed in case law. TEX. BUS. ORG. CODE ANN. § 152.056 (Westlaw
2015) ("A partnership is an entity distinct from its partners"); see also Destec Energy,
Inc. v. Houston Lighting & Power Co., 966 S.W.2d 792, 795 (Tex. App.–Austin
1998, no pet.).
Brief of Appellants Page 25
"Partnership property is not property of the partners. A partner or a partner's
spouse does not have an interest in partnership property." TEX. BUS. ORG. CODE
ANN. § 152.101 (Westlaw 2015). The Courts have interpreted this to mean that a
"'partnership interest' is not an interest in any specific partnership property. Instead,
it is the partner's right to receive his distributive share of the profits and surpluses of
the partnership." Stanley v. Reef Secs., Inc., 314 S.W.3d 659, 664 (Tex. App.–Dallas
2010, no pet.). Specifically applicable here, is that "individual assets owned by the
partnership are not owned by the partners. Consequently partnership property can be
characterized as neither community or separate property." Marshall v. Marshall, 735
S.W.2d 587, 594 (Tex. App.–Dallas 1987, writ ref’d n.r.e.); also Young v. Young, 168
S.W.3d 276, 287 (Tex. App.–Dallas 2005, no pet.).
The evidence in this record makes clear that the cases at issue were Gonzales
& Gonzales, GP assets–that is, the interest in the file for attorney’s fees was
unambiguously a partnership asset (V RR 85-114; VI RR 77-109, 165-182; XIII RR
84-92). As a result, this interest was never part of the community estate. Young, 168
S.W.3d at 287; Marshall, 735 S.W.2d at 594. The Trial Court could only divide
property owned by the community estate, it was not permitted to reach outside that
estate and divide property owned by others. Jackson v. Jackson, 2011 WL 3373290,
2 -3 (Tex. App.–Austin 2011, no pet.); Mandell v. Mandell, 310 S.W.3d 531, 539
(Tex. App.–Fort Worth 2010, pet. denied). The Trial Court’s inclusion of the fee
Brief of Appellants Page 26
interest in the individual files in the community estate is an error of law that
constitutes an abuse of discretion.
2. After the Partnership withdrew from the cases there was no fee
interest left to be divided as a matter of law
Even if the Partnership’s interests were capable of being included in the
community estate, by voluntarily withdrawing from the cases the Partnership
relinquished any claim to that fee interest. Since at least 1960, Texas law has been
“settled”:
the settled law is held to be that: ‘If an attorney, without just cause,
abandons his client before the proceeding for which he was retained has
been conducted to its termination, or if such attorney commits a material
breach of his contract of employment, he thereby forfeits all right to
compensation.' Mills v. Metropolitan St. Ry. Co., 282 Mo. 118, 221 S.W.
1; Crye v. O'Neal & Allday, Tex.Civ.App.1911, 135 S.W. 253 (no writ
history); 7 C.J.S. Attorney and Client s 169, p. 1031; see also 45 A.L.R.
p. 1135, Annotation, Attorneys-Compensation-Disbarment, and cases
collated at p. 1138
Royden v. Ardoin, 331 S.W.2d 206, 209 (Tex. 1960). This legal principal has been
recognized repeatedly by courts. French v. Law Offices of Windle Turley, P.C., 2010
WL 744794, 3 n.21 (Tex. App.–Fort Worth, 2010, no pet.) (citing Royden as “stating
that an attorney is not entitled to compensation when he abandons his client without
just cause before the proceeding for which he was retained has been conducted to its
termination"); Diaz v. Attorney General of State of Tex., 827 S.W.2d 19, 22 -23 (Tex.
App.–Corpus Christi 1992, no writ) ("When the attorney abandons the contract before
completion without good cause the attorney forfeits his right to compensation under
Brief of Appellants Page 27
the contract"); Staples v. McKnight, 763 S.W.2d 914, 916 (Tex. App.–Dallas 1988,
writ denied) ("an attorney who abandons a case without just cause before completing
the task for which his client hired him breaches his contract of employment and
forfeits all right to compensation"); Augustson v. Linea Aerea Nacional-Chile S.A.,
76 F.3d 658, 662 (5th Cir. 1996) (“When an attorney, ‘without just cause, abandons
his client before the proceeding for which he was retained has been conducted to its
termination, or if such attorney commits a material breach of his contract of
employment, he thereby forfeits all right to compensation.’" (quoting Royden)).
The letter signed by both Nash and Marissa sent to all of Partnership’s clients
in the then-pending suits advised the clients that they would need to find a new
attorney to carry on with their case (CR 520-521; XV RR 20). This constitutes the
voluntary withdrawal from these cases by the Partnership and so is a waiver of any
fee interest in the files the Partnership might have had. Id. Even if the value of the
fee interest in these cases held by the Partnership could somehow be converted into
an asset of the individual partners and so included in the community estate, that value,
after May 31, 2012, was zero. The Trial Court's inclusion of any fee interest in the
individual files in the community estate is an error of law that constitutes an abuse of
discretion.
Brief of Appellants Page 28
3. In addition, the Trial Court’s ruling is contrary to the evidence
as the Partnership contracts tracked this provision of Texas law
This result is also dictated by the form of the attorney/client contract adopted
by the Partnership. The Partnership’s standard contract contained a provision that
mirrors Texas law on this issue:
No recovery. In the event my attorney withdraws or is unable to obtain
a recovery, there will be no charge for attorney fees and costs unless
another agreement is made.
(CR 514). The contractual provision has the same effect as the “settled” Texas law
and the Partnership waived its fee interest in these files by its withdrawal from the
representation. The Trial Court’s ruling otherwise is an abuse of its discretion and
should be reversed.
4. Because the Trial Court erroneously included the fee interest in
the Partnership’s former inventory of cases in the community
estate, the property division must be set aside and remanded
The Trial Court abused its discretion in including any of the fee interests in the
Partnership’s former inventory of cases, both the Bucket 2 (pending at dissolution,
resolved before divorce) and Bucket 3 (pending at dissolution, not resolved), in the
community estate as this was a clear error of law and contrary to the evidence. To
correct this error, this Court should declare that these property interests are not
included in the community estate and so cannot be part of the Trial Court’s “just and
right” division, reverse the Trial Court’s property division, and remand that issue for
further proceedings.
Brief of Appellants Page 29
C. The Trial Court’s order to divide the fees among attorneys who are not
in the same firm without client consent is void as against public policy
Secondly, the Trial Court’s order cannot stand as it is clearly violative of public
policy as expressed in the Texas Rules of Professional Conduct. The Rules of
Professional Conduct are deemed to express the public policy of the State of Texas.
Cruse v. O'Quinn, 273 S.W.3d 766, 775 (Tex. App.–Houston [14th Dist.] 2008, pet.
denied). As a result, contracts that violate these Rules have been repeatedly voided
and held unenforceable by Texas courts. See e.g., Davis Law Firm v. Bates, 2014 WL
585855, 3-4 (Tex. App.–Corpus Christi 2014, no pet.) (citing cases); Counsel
Financial Services, L.L.C. v. Leibowitz, 2013 WL 3895331, 7 (Tex. App.–Corpus
Christi 2013, pet. denied).
Judgments ought not to enforce void agreements. See c.f. In re Lovell-Osburn,
2014 WL 4931302, 5 (Tex. App.–Houston [14th Dist.] 2014, no pet.) (lower court
erred in enforcing judgment incorporating MSA that had venue provision that was
void as against public policy). And when a judgment is based on circumstances that
violate public policy, that judgment may be declared void as against public policy.
See Williams v. Sinclair–Prairie Oil Co., 135 S.W.2d 211, 216 (Tex. Civ.
App.–Texarkana 1939, writ dism'd judgm't cor.).
This Trial Court’s division of the fee interest in these cases is plainly violative
of Rule 1.04 of the Texas Rules of Professional Conduct, which requires that any
division of a fee between lawyers not in the same firm must be approved by the client.
Brief of Appellants Page 30
TEX. DISCIPLINARY RULES OF PROF. 1 CONDUCT R. 1.04(f), reprinted in Tex. Gov’t.
Code Ann., tit. 2, subtit. G, app. A (West 2013) (Tex. State Bar R. art. X, § 9). The
Trial Court specifically rejected any suggestion that the clients would have a say in
the division of the fee, squarely contrary to the provisions of this Rule (XV RR 21-
22). This judgment flowed from this erroneous conclusion by the Trial Court.
This Trial Court’s judgment seeks to enforce an arrangement that is prohibited
by Texas public policy as expressed by the Texas Rules of Professional Conduct. The
Trial Court’s action in crafting and rendering such a judgment is an abuse of
discretion that ought to be corrected by this Court. Thus, the Court should set aside
the division of the fee interest in the Partnership’s former cases, render judgment
excluding those interests from the community estate, and remand this case for further
proceedings.
D. The Trial Court’s division of the fee generated by the “Bucket 2"
cases is not supported by the evidence and so is an abuse of discretion
The Trial Court’s division of the community estate is tested under the abuse of
discretion standard. Jackson v. Jackson, 2011 WL 3373290, 2 (Tex. App.–Austin
2011, no pet.). The Trial Court abuses its discretion if it rules without sufficient
supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998); Giesler v.
Giesler, 2010 WL 2330362, 2 (Tex. App.–Austin 2010, no pet.). If this Court
concludes that the fee interests in the Bucket 2 cases was divisible as part of the
community estate (which it should not under the analysis set forth above), the Trial
Brief of Appellants Page 31
Court’s division of that fee interest is still an abuse of discretion as it is not based on
sufficient evidentiary support.
When dividing the fee generated by the Bucket 2 cases (pending at dissolution,
resolved before judgment), the Trial Court simply added up the total fee derived from
the cases and divided it in two (CR 536-539, 706; XIV RR 80; XV RR 29-30; XX RR
Ct. Ex. 8 (.pdf page 26)). There was no dispute that these cases had been picked up
by another firm, Gonzales & Gonzales, P.C. for prosecution and that Gonzales &
Gonzales, P.C. had an interest in the fee generated by the prosecution of the claims
(VIII RR 68-72; XIV RR 97; CR 526). The evidence on which the Trial Court ruled,
however, reflected only the total fee generated by the files-which is the property of
Gonzalez & Gonzalez, P.C.–not the portion of the fee that Nash actually received as
a distribution from the firm.
As a result, the Trial Court’s attempt to divide the fee generated by the
resolution of the Bucket 2 cases by awarding Marissa a lump sum payment from Nash
in an amount equal to 50% of the total fee generated by the prosecution of the claims
is not supported by the evidence. This ruling had the effect of making Nash pay to
Marissa money that was never in his hands as he only had a claim to the portion of
the fee that he received not to the entire fee generated by the case. Therefore, the
Trial Court’s division of the Bucket 2 cases fee, if properly included in the
community estate at all, was an abuse of discretion as it was not supported by
Brief of Appellants Page 32
sufficient evidence to establish the value of the community share of the fee. The
lower court’s ruling should be reversed and the case remanded for further
proceedings.
E. The Trial Court’s attempt to divide the Bucket 3 cases fee is erroneous
as it divides future income which is not part of the community estate
Finally, the Trial Court abused its discretion when it ordered a division of the
fee generated by the resolution of the Bucket 3 cases (pending at the time of
dissolution, not resolved by the time of the decree) as it is a clear misapplication of
the law. The Trial Court should only have divided property owned by the community
estate at the time of the divorce. Rodgers v. Rodgers, 2014 WL 1604332, 3 (Tex.
App.–Amarillo 2014, no pet.); Jackson, 2011 WL 3373290, *3. “A spouse is not
entitled to a percentage of his or her spouse’s future earnings.” Mandell v. Mandell,
310 S.W.3d 531, 539 (Tex. App.–Fort Worth 2010, pet. denied) (citing Von Hohn v.
Von Hohn, 260 S.W.3d 631, 640–41 (Tex. App.–Tyler 2008, no pet.)); see also Smith
v. Smith, 836 S.W.2d 688, 692 (Tex. App.–Houston [1st Dist.] 1992, no pet.).
If the community estate had any claim on the future fees generated by the
Bucket 3 cases, that claim must be based on the value of the cases at the time of the
divorce. First, because the community estate does not include property owned by
third parties, the interest in the fees generated owned by Gonzales & Gonzales, P.C.
must be separated out of the total fee. No evidence was presented to the Trial Court
allowing for this calculation. Second, because the amount of the fee “attributable to
Brief of Appellants Page 33
the skill, time, efforts, and diligence” of the handling attorney after the dissolution is
not part of the Partnership’s interest, see Bader v. Cox, 701 S.W.2d 677, 684 (Tex.
App. 5th Dist. 1985, writ ref’d n.r.e), and actually constitutes the separate property
income of the former spouse, the Trial Court was required to further reduce the fee
to be divided by this amount. Again, no evidence in the record supports the Trial
Court’s arbitrary allocation of the future fee for this purpose.
Nash’s future earnings are his separate property which the Trial Court was not
permitted to divide as part of its “just and right” allocation of the community estate.
Mandell, 310 S.W.3d at 539. The Trial Court's division awarding Nash's future
income to his ex-wife despite this prohibition is necessarily manifestly unjust. Von
Hohn, 260 S.W.3d at 642. As a result, the Trial Court’s division of the community
estate must be set aside and this matter remanded for further proceedings.
PRAYER
As shown here, the Trial Court erred when it rendered judgment on the basis
of jury verdict that has no evidentiary support. Thus, Appellant Nash Gonzales
respectfully requests that this Court reverse the Trial Court’s December 9, 2013
Amended/Corrected Final Decree of Divorce and remand this action to the lower
court for retrial of the area in which the children’s residence must be confined. The
Trial Court also abused its discretion when it sought to divide the fees generated by
Gonzales & Gonzales, GP’s former inventory of cases, as established above. Thus,
Brief of Appellants Page 34
Appellants Nash Gonzales and Gonzales & Gonzales, P.C. also request that the Court
reverse the Trial Court’s division of the community estate, render judgment excluding
those fees from the community estate, and remanding this matter for further
proceedings consistent with the Court’s opinion. Alternatively, if the Court
concludes that the fee interests are properly included in the community estate,
Appellants pray that the Court find the Trial Court’s division is not based on
sufficient evidence, reverse the division, and remand this suit for further proceedings.
Appellants further pray that the Court award them judgment for all costs of appeal
and any other and further relief to which they are justly entitled.
Respectfully submitted,
/s/ Thomas B. Cowart
Thomas B. Cowart
Texas Bar No. 00787295
tom@tcowart.com
Wasoff & Cowart, P.L.L.C.
100 North Central Expressway, Suite 901
Richardson, Texas 75080
Tel: (214) 692-9700
Fax: (214) 550-2674
Attorneys for Appellants Nash Gonzales and
Gonzales & Gonzales, P.C.
Brief of Appellants Page 35
CERTIFICATE OF COMPLIANCE
Relying on the word-count function in WordPerfect X5, I hereby certify that
this entire Appellant’s Brief, including the segments of this document which could
be excluded in calculating the length of a document under Tex. R. App. P. 9.4(i)(1),
contains 11,196 words.
/s/ Thomas B. Cowart
CERTIFICATE OF SERVICE
I hereby certify that on January 16, 2015 a true and correct copy of this Brief
of Appellant has been served on the following via the efile system:
Michael Burnett
Armbrust & Brown, PLLC
100 Congress Ave., Suite 1300
Austin, Texas 78701
Phone: 512-435-2315
Fax: 512-435-2360
E-mail: mburnett@abaustin.com
Attorney for Appellee Marissa Ann Gonzales
/s/ Thomas B. Cowart
Thomas B. Cowart
Brief of Appellants Page 36
NO. 03-14-00117-CV
IN THE COURT OF APPEALS FOR THE
THIRD COURT OF APPEALS DISTRICT OF TEXAS
AT AUSTIN
NASH JESUS GONZALES
AND GONZALES & GONZALES, P.C.,
APPELLANTS
v.
MARISSA ANN GONZALES,
APPELLEES
From the 200th District Court , Travis County Texas
The Honorable Lora J. Livingston, Presiding
Trial Court No. D-1-FM-11-005140
Nash Jesus Gonzales and Gonzales & Gonzales, P.C.’s
Appendix
Document
Jury Charge and Verdict CR 342
Amended/Corrected Final Decree of Divorce CR 679
Brief of Appellants Page 37
,
•
CAUSE NO. D-I-FM-ll-OOS140
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
MARISSA ANN GONZALES §
AND §
NASH JESUS GONZALES § 200th JUDICIAL DISTRICT
§
AND IN THE INTEREST OF §
B N G , §
AND G J HG , §
MINOR CHILDREN § TRAVIS COUNTY, TEXAS
CHARGE OF THE COURT
LADIES AND GENTLEMEN OF THE JURY:
After the closing arguments, you will go to the jury room to decide the case, answer the
questions that are attached, and reach a verdict. You may discuss the case with other jurors only
when you are all together in the jury room.
Remember my previous instructions: Do not discuss the case with anyone else, either in
person or by any other means. Do not do any independent investigation about the case or conduct
any research. Do not look up any words in dictionaries or on the Internet. Do not post information
about the case on the Internet. Do not share any special knowledge or experiences with the other
jurors. Do not use your cell phone or any other electronic device during your deliberations for any
reason.
Any notes you have taken are for your own personal use. You may take your notes back into
the jury room and consult them during deliberations, but do not show or read your notes to your
fellow jurors during your deliberations. Your notes are not evidence. Each of you should rely on
your independent recollection of the evidence and not be influenced by the fact that another juror has
or has not taken notes.
You must leave your notes with the bailiff when you are not deliberating. The bailiff will
make sure your notes are kept in a safe, secure location and not disclosed to anyone. After you
complete your deliberations, the bailiff will collect your notes. When you are released from jury
duty, the bailiff will promptly destroy your notes so that nobody can read what you wrote.
Here are the instructions for answering the questions:
o().--t -rO 1) e) ,-t'.e.{~tk 1J\ ~~k 0tvJLut
Charge of the Court filed In I he District Court riled in The District Court
of Travis County, Texas of Travis County, Texas
Page I
FEB 222013 FEB 2rOl~e
ORIGINAL At lhn:l..-.p M.
Amalia Rodriguez·Mendoza, Cierk
342
At • ;"S fIf.
Amalia Rodriguez-Mendoza, Clerk
,
1. Do not let bias, prejudice or sympathy play any part in your decision.
2. Base your answers only on what was presented in court and on the law that is in these
instructions and questions. Do not consider or discuss any evidence that was not presented in the
courtroom.
3. You are to make up your own minds about the facts. You are the sole judges of the
credibility of the witnesses and the weight to give their testimony. But on matters oflaw, you must
follow all of my instructions.
4. Ifmy instructions use a word in a way that is different from its ordinary meaning, use
the meaning I give you, which will be a proper legal definition.
5. All the questions and answers are important. No one should say that any question or
answer is not important.
6. Answer "Yes" or "No" to all questions unless you are told otherwise. A "Yes"
answer must be based on a preponderance of the evidence unless you are told otherwise. Whenever
a question requires an answer other than "Yes" or "No," your answer must be based on a
preponderance of the evidence unless you are told otherwise.
The term "preponderance of the evidence" means the greater weight of credible evidence
presented in this case. If you do not find that a preponderance of the evidence supports a "Yes"
answer, then answer "No." A preponderance of the evidence is not measured by the number of
witnesses or by the number of documents admitted in evidence. For a fact to be proved by a
preponderance of the evidence, you must find that the fact is more likely true than not true.
7. Do not decide who you think should win before you answer the questions and then
just answer the questions to match your decision. Answer each question carefully without
considering who will win. Do not discuss or consider the effect your answers will have.
8. Do not answer questions by drawing straws or by any method of chance.
9. Some questions might ask you for a dollar amount. Do not agree in advance to decide
on a dollar amount by adding up each juror's amount and then figuring the average.
10. Do not trade your answers. For example, do not say, "I will answer this question your
way if you answer another question my way."
11. Unless otherwise instructed, the answers to the questions must be based on the
decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not
agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority.
Charge of the Court
Page 2
343
As I have said before, if you do not follow these instructions, you will be guilty of juror
misconduct, and I might have to order a new trial and start this process over again. This would waste
your time and the parties' money, and would require the taxpayers of this county to pay for another
trial. If a juror breaks any of these rules, tell that person to stop and report it to me immediately.
A fact may be established by direct evidence or by circumstantial evidence or both. A fact is
established by direct evidence when proved by documentary evidence or by witnesses who saw the
act done or heard the words spoken. A fact is established by circumstantial evidence when it may be
fairly and reasonably inferred from other facts proved.
The best interest of the child shall always be the primary consideration in determining
questions of conservatorship.
In determining which party to appoint with the exclusive right to designate the primary
residence, you shall consider the qualifications of each party without regard to the gender of the
party or the child.
"Joint managing conservatorship" means the sharing of the rights and duties of a parent by
two parties, even if the exclusive right to make certain decisions is awarded to one party. If joint
managing conservators are appointed, the court will specify the rights and duties of a parent that are
to be exercised by each parent independently, by the joint agreement ofthe parents, and exclusively
by one parent.
Joint managing conservatorship does not require the award of equal or nearly equal periods of
physical possession of and access to the child to each of the joint conservators. If joint managing
conservators are appointed, you will be asked to decide whichjoint managing conservator will have
the exclusive right to designate the child's primary residence, whether a geographical restriction
should be imposed on that residence, and, if so, what the geographical restriction will be.
The appointment ofjoint managing conservators does not impair or limit the authority ofthe
court to order one joint managing conservator to pay child support to the other.
A parent appointed the sole managing conservator of a child has the following exclusive
rights and duty, subject to any limitation imposed by court order:
1. The right to designate the primary residence of the child.
2. The right to consent to medical, dental, and surgical treatment involving invasive
procedures.
3. The right to consent to psychiatric and psychological treatment.
4. The right to receive and give receipt for periodic payments for the support of the
child and to hold or disburse these funds for the benefit of the child.
Charge of the Court
Page 3
344
5. The right to represent the child in legal action and to make other decisions of
substantial legal significance concerning the child.
6. The right to consent to marriage and to enlistment in the armed forces of the United
States.
7. The right to make decisions concerning the child's education.
8. The right to the services and earnings of the child.
9. Except when a guardian of the child's estate or a guardian or attorney ad litem has
been appointed for the child, the right to act as an agent ofthe child in relation to the
child's estate if the child's action is required by the state, the United States, or a
foreign government.
10. The duty to manage the estate of the child to the extent the estate has been created by
community property or the joint property of the parents.
You shall appoint both parents joint managing conservators unless you find that such an
appointment is not in the best interest of the child. In making this determination, you shall consider
the following factors:
1. Whether the physical, psychological, or emotional needs and development of the
child will benefit from the appointment of joint managing conservators.
2. The ability of the parents to give first priority to the welfare of the child and reach
shared decisions in the child's best interest.
3. Whether each parent can encourage and accept a positive relationship between the
child and the other parent.
4. Whether both parents participated in child-rearing before the filing of the suit.
5. The geographic proximity of the parents' residences.
6. If the child is twelve years of age or older, the child's preference, if any, regarding the
person to have the exclusive right to designate the primary residence of the child.
7. Whether there is a history of family violence involving the parents.
Charge of the Court
Page 4
345
In determining whether to appoint a party sole or joint managing conservator, you shall
consider evidence of the intentional use of abusive physical force by a party against his or her
spouse, against a parent of the child, or against any person younger than eighteen years of age
committed within a two-year period preceding the filing of the suit or during the pendency of the
suit.
Charge of the Court
Page 5
346
QUESTION NO.1:
Who should be appointed managing conservator of the children?
You may answer by naming one person sole managing conservator or by naming two persons
joint managing conservators.
Answer by writing on each line the name of the person who should be appointed sole
managing conservator or the names of the two persons who should be appointed joint managing
conservators of that c~¥c;.; f'.
Answer: ~r(~S{t ~t~1tltt lu-{ A/aJk &t~
(.)0 lVlt (NN~11~ ~ v.:t:hIr
Charge of the Court
Page 6
347
Ifin answer to Question No.1, you have named two persons joint managing conservators of
the children, then answer Question No.2 and Question No.3. Otherwise, do not answer Question
No.2 and Question No.3.
QUESTION NO.2:
Which joint managing conservator should have the exclusive right to designate the primary
residence of the children?
Answer by writi the n,!me of the joint managing conservator.
Answer: Cliff S~ ~ 6tJV\~r
----+-~------------------~----~-------
Charge of the Court
Page 7
348
QUESTION NO.3:
Should the managing conservator you named in Question No.2 above be permitted to
designate the primary residence of the children without regard to geographic location or with a
geographic restriction?
Answer by writing "Without regard to geographic location" or "With a geographic
restriction. "
Answer: Min Ct ~JuL reofy;&(J{jt'\.,
Charge of the Court
Page 8
349
•
If you have answered Question No.3 "With a geographic restriction," answer Question No.
4. Otherwise, do not answer Question No.4.
QUESTION NO.4:
State the geographic area within which the joint managing conservator must designate the
primary residence of the children.
Answer: g,ak tf ]?)(C0
Charge of the Court
Page 9
350
•
Presiding Juror:
1. When you go into the jury room to answer these questions, the first thing you will
need to do is choose a presiding juror.
2. The presiding juror has these duties:
a. Have the complete charge read aloud if it will be helpful to your deliberations.
b. Preside over your deliberations. This means the presiding juror will manage the
discussions and see that you follow these instructions.
c. Give written questions or comments to the bailiff who will give them to the judge.
d. Write down the answers you agree on.
e. Get the signatures for the verdict certificate.
f. Notify the bailiff that you have reached a verdict.
Do you understand the duties of the presiding juror? If you do not, please tell me now.
Charge of the Court
Page 10
351
•
Instruction for Signing the Verdict Certificate:
1. You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree
on every answer in the charge. This means you may not have one group of 10 jurors agree on one
answer and a different group of 10 jurors agree on another.
2. If 10 jurors agree on every answer, those 10 jurors sign the verdict.
If 11 jurors agree on every answer, those 11 jurors sign the verdict.
If a1112 of you agree on every answer, you are unanimous and only the presiding juror signs
the verdict.
3. All jurors should deliberate on every question. You may end up with all 12 of you
agreeing on some answers, while only 10 or 11 or you agree on other answers. But when you sign
the verdict, only those 10 who agree on every answer will sign the verdict.
\
JUOdE PR
Charge of the Court
Page 11
352
VERDICT CERTIFICATE
Check one:
_ _ Our verdict is unanimous. All 12 of us have agreed to each and every answer. The presiding
JUro h s gned the certifica 'r all 12 of us.
Si Printed Name of Presiding Juror
_ _ Our verdict is not unanimous. Eleven of us have agreed to each and every answer and have
signed the certificate below.
/ Our verdict is not unanimous. Ten of us have agreed to each and every answer and have
signed the certificate below.
, PRINTED NAME
1. l<atA &yV1 hi ~
2.
3.
4.
5.
6. /h,thaeL A/vaye z-
7.
•
,-- Cl\ft± ~0eu'\\"
8. ~S~.Sn<) Mit 12- L- &J JSo L
A
9. .hWJvow. ~Kd2 GJQ:DCta :btl rnO
10. ~~ .~.Q..I
11. __________________
12. ______________________
Charge of the Court
Page 12
353
fZ: l, l3,16, 2~ Z<6?t?
j I
DC BK13347 PG768
iJu Filed in The District Court
of Travis County, Texas
nr~r 1 1 ;'1113I
.-1_,-"
1• _.'.1
CAUSE NO: D-I-FM-I1-005140 At_._'it\~c M. A
Amalia Rodriguez-Mendoza, Clerk
IN THE MATTER OF § IN THE DISTRICT COURT
THE MARRIAGE OF §
§
MARISSA ANN GONZALES §
AND §
NASH JESUS GONZALES § OF TRAVIS COUNTY. TEXAS
§
AND IN THE INTEREST OF §
B N G , §
AND G J HG . §
MINOR CHILDREN § 200th JUDICIAL DISTRICT
AMENDED/CORRECTED FINAL DECREE OF DIVORCE
On February 11, 2013, this case came on for a jury trial before the Honorable Lora
Livingston. Trial concluded on April 10, 2013.
Appearances
Petitioner, MARISSA ANN GONZALES, appeared in person and through her attorneys
of record, Michael Burnett and Jeffrey D. Miller, and announced ready for trial.
Respondent, NASH JESUS GONZALES, appeared in person and through his attorney of
record, Cecilia Wood, and announced not ready for trial.
Record
The making of a record oftestimony was made by the official court reporter of this court.
Jurisdiction and Domicile
The Court finds that the pleadings of Petitioner, MARISSA ANN GONZALES, are in
due fonn and contain all the allegations, information, and prerequisites required by law. The
Court, after receiving evidence, finds that it has jurisdiction of this case and of all the parties and
that at least sixty days have elapsed since the date the suit was ftled. The Court ftnds Petitioner,
MARISSA ANN GONZALES has been a domiciliary of Texas for at least a six-month period
preceding the filing of this action and a resident of the county in which this suit is filed for at
least a ninety-day period preceding the filing of this action. All persons entitled to citation were
properly cited.
Jury
A jury trial was conducted on the questions of conservatorship and geographic restriction.
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Divorce
IT IS ORDERED that MARISSA ANN GONZALES and NASH JESUS GONZALES
are divorced and that the marriage between them is dissolved as of February 25,2013.
Children of the Marriage
The Court finds that MARISSA ANN GONZALES and NASH JESUS GONZALES are
the parents of the following children:
Name: B N G
Sex: Male
Birthplace: r"1!,nhr, Texas
Birth date:
Present address:
Name: G J G
Sex: Male
Birthplace: ~'v""n., Williamson County, Texas
Birth date:
Present address:
The Court finds no other children of the marriage are expected.
Parenting Plan
The Court finds that the provisions in this decree relating to the rights and duties of the
parties with relation to the children, possession of and access to the children, child support, and
optimizing the development of a close and continuing relationship between each party and the
children constitute the Court's order and the jury's verdict.
Conservatorship
The Court, having considered the circumstances of the parents and of the children, finds
that the following orders are in the best interest of the children.
IT IS ORDERED that MARISSA ANN GONZALES and NASH JESUS GONZALES
are appointed Joint Managiog Conservators of the following-named children: B N
G and GR J G .
Rights at All Times
IT IS ORDERED that, at all times, MARISSA ANN GONZALES and NASH JESUS
GONZALES, shall each have the following rights:
1. the right to receive information from any other conservator of the children
concerning the health, education, and welfare of the children;
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2. 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;
3. the right of access to medical, dental, psychological, and educational records of
the children;
4. the right to consult with a physician, dentist, or psychologist of the children;
5. the right to consult with school officials concerning the children's welfare and
educational status, including school activities;
6. the right to attend school activities~
7. the right to be designated on the children's records as a person to be notified in
case of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an
emergency involving an immediate danger to the health and safety of the children; and
9. the right to manage the estates of the children to the extent the estates have been
created by the parent or the parent's family.
Duties at All Times
IT IS ORDERED that, at all times, MARlSSA ANN GONZALES and NASH JESUS
GONZALES, shall each have the following duties:
1. the duty to inform the other conservator of the children in a timely manner of
significant information concerning the health, education, and welfare of the children; and
2. the duty to inform the other conservator of the children if the conservator resides
with for at least thirty days, marries, or intends to marry a person who the conservator knows is
registered as a sex offender under chapter 62 of the Code of Criminal Procedure or is currently
charged with an offense for which on conviction the person would be required to register under
that chapter. IT IS ORDERED that this information shall be tendered in the form of a notice
made as soon as practicable, but not later than the fortieth day after the date the conservator of
the children begins to reside with the person or on the tenth day after the date the marriage
occurs, as appropriate. IT IS ORDERED that the notice must include a description of the offense
that is the basis of the person's requirement to register as a sex offender or of the offense with
which the person is charged. WARNING: A CONSERVATOR COMMITS AN OFFENSE
PUN1SHABLE AS A CLASS C MISDEMEANOR IF THE CONSERVATOR FAILS TO
PROVIDE THIS NOTICE.
Rights and Duties during Periods of Possession
IT IS ORDERED that, during their respective periods of possession, MARISSA ANN
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GONZALES and NASH JESUS GONZALES, shall have the following rights and duties:
1. the duty of care, control, protection, and reasonable discipline of the children;
2. the duty to support the children, including providing the children with clothing,
food, shelter, and medical and dental care not involving an invasive procedure;
3. the right to consent for the children to medical and dental care not involving an
invasive procedure; and
4. the right to direct the moral and religious training of the children.
Rights of MARISSA ANN GONZALES
IT IS ORDERED that MARISSA ANN GONZALES, as a parent joint managing
conservator, shall have the following rights:
I. the exclusive right to designate the primary residence of the child in the State of
Texas;
2. the exclusive right to consent to medical, dental, and surgical treatment involving
invasive procedures;
3. the exclusive right to consent to psychiatric and psychological treatment of the
children;
4. the exclusive right to represent the children in legal action and to make other
decisions of substantial legal significance concerning the children;
5. the right, subject to the agreement of the other conservator, to consent to marriage
and to enlistment in the anned forces of the United States;
6. the exclusive right to make decisions concerning the children's education;
7. except as provided by section 264.0111 of the Texas Family Code, the right to the
services and earnings of the children;
8. except when a guardian of the children's estates or a guardian or attorney ad litem
has been appointed for the children, the right, to act as an agent of the children in relation to the
children's estates if the children's action is required by a state, the United States, or a foreign
government;
9. the duty to manage the estates of the children to the extent the estates have been
created by community property or the joint property of the parent; and
10. the exclusive right to receive and give receipt for periodic payments for the
support of the children and to hold or disburse these funds for the benefit of the children.
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Rigbts of NASH JESUS GONZALES
IT IS ORDERED that NASH JESUS GONZALES, as a parent joint managmg
conservator, shall have the following rights:
I. the right, subject to the agreement of the other conservator, to consent to marriage
and to enlistment in the anned forces of the United States; and
2. the duty to manage the estates of the children to the extent the estates have been
created by NASH JESUS GONZALES or his family.
Possession and Access
Possession Order
The Court finds that the following provisions of this Possession Order are intended to and
do comply with the requirements of the Texas Family Code and is in the best interest of the
children the subject of this suit. IT IS ORDERED that each conservator shall comply with all
tenns and conditions of this Possession Order. IT IS ORDERED that this Possession Order is
effective immediately and applies to all periods of possession occurring on and after the date the
Court signs this Modified Possession Order. IT IS, TIlEREFORE, ORDERED:
Defmitions
I. In this Possession Order "child" includes each child, whether one or more,
who is a subject of this suit while that child is under the age of eighteen years and not
otherwise emancipated.
2. In this Possession Order "school" means the primary or secondary school
in which the child is enrolled or, if the child is not enrolled in a primary or secondary
school, the public school district in which the child primarily resides.
Mutual Agreement or Specified Terms for Possession
IT IS ORDERED that the conservators shall have possession of the children at
times mutually agreed to in advance by the parties, and, in the absence of mutual
agreement, it is ORDERED that the conservators shall have possession of the child under
the specified tenns set out in this Possession Order.
Possession by NASH JESUS GONZALES
(a) Parents Who Reside 100 Miles or Less Apart
Except as otherwise explicitly provided in this Possession Order, when NASH JESUS
GONZALES resides 100 miles or less from the primary residence of the child, NASH
JESUS GONZALES shall have the right to possession of the child as follows:
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1. Weekends - On the first, third, and fifth Friday of each month during the regular
school tenn beginning at the time school is dismissed and ending at the time school
reswnes after the possession weekend. When school is not in session, the weekend
possession period shall begin at 6:00 p.m. on Friday and end at 6:00 p.m. on the
following Sunday.
2. Weekend Possession Extended by a Holiday - Except as otherwise explicitly
provided in this Possession Order, if a weekend period of possession by NASH JESUS
GONZALES begins on a Friday that is a school holiday during the regular school tenn or
a federal, state, or local holiday during the summer months when school is not in session,
or if the period ends on or is immediately followed by a Monday that is such a holiday,
that weekend period of possession shall begin at the time the children's school is
regularly dismissed on the Thursday immediately preceding the Friday holiday or school
holiday or end at the times the school resumes after that school holiday, as applicable.
3. Thursdays - On Thursday of each week during the school year, beginning at the
time school is dismissed and ending at the time school resumes on the following
.
mormng.
4. Spring Break in Even-Nwnbered Years - In even-numbered years, beginning at
the time the children's school is regularly dismissed on the day the children are dismissed
from school for the spring vacation and ending at the time school reswnes after that
vacation.
Notwithstanding the weekend, Thursday periods of possession ORDERED for NASH
JESUS GONZALES, it is explicitly ORDERED that MARISSA ANN GONZALES shall have a
superior right of possession of the child as follows:
1. Spring Break in Odd-Numbered Years - In odd-numbered years, beginning at the
time the child's school is regularly dismissed on the day the child is dismissed from
school for the school's spring vacation and ending at the time the child's school regularly
resumes after that vacation.
2. Extended Summer Possession by MARISSA ANN GONZALES - If MARISSA
ANN GONZALES gives NASH JESUS GONZALES written notice by April 15 of a
year or gives NASH JESUS GONZALES fourteen days' written notice on or after April
16 of a year, MARISSA ANN GONZALES may designate one weekend beginning no
earlier than the day after the child's school is dismissed for the summer vacation and
ending no later than seven days before school reswnes at the end of the summer vacation,
during which an otherwise scheduled weekend period of possession by NASH JESUS
GONZALES shall not take place in that year, provided that the weekend so designated
does not interfere with NASH JESUS GONZALES' period or periods of extended
summer possession or with Father's Day Weekend.
(b) Extended Summer Possession
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Extended Summer Possession by NASH JESUS GONZALES if he resides less than 100
miles from the children.
With Written Notice by April 1. If NASH JESUS GONZALES gives MARISSA
ANN GONZALES written notice by April 1 of a year specifying an extended period or
periods of summer possession for that year, NASH JESUS GONZALES shall have
possession of the child for two periods of 15 days each, with each period separated by at
least seven days, beginning no earlier than the day after the child's school is dismissed
for the summer vacation and ending no later than seven days before school resumes at the
end of the summer vacation in that year, to be exercised as specified in the written notice.
These periods of possession shall begin and end at 6:00 P.M.
Without Written Notice by April 1. If NASH JESUS GONZALES does not give
MARISSA ANN GONZALES written notice by April 1 of a year specifying an extended
period or periods of summer possession for that year, NASH JESUS GONZALES shall
have possession of the children for fifteen consecutive days in that year beginning at 6:00
p.m. on July 1 and ending at 6:00 p.m. on July 15 and for fifteen consecutive days in that
year beginning at 6:00 p.m on August 1 and ending at 6:00 p.m. on August 15.
NASH JESUS GONZALES' two 15 consecutive day periods must be separated
by at least seven (7) days. The exchanges at the beginning and the end of the designated
periods of summer possession shall occur at 6:00 p.m.
(c) Parents Who Reside More Than 100 Miles Apart
Except as otherwise explicitly provided in this Possession Order, when NASH JESUS
GONZALES resides more than 100 miles from the residence of the child, NASH JESUS
GONZALES shall have the right to possession of the child as follows:
1. Weekends - Unless NASH JESUS GONZALES elects the alternative period of
weekend possession described in the next paragraph, NASH JESUS GONZALES shall
have the right to possession of the child on weekends, beginning at 6:00 p.m., on the first,
third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.
Except as otherwise explicitly provided in this Possession Order, if such a weekend
period of possession by NASH JESUS GONZALES begins on a Friday that is a school
holiday during the regular school tenn or a federal, state, or local holiday during the
summer months when school is not in session, or if the period ends on or is immediately
followed by a Monday that is such a holiday, that weekend period of possession shall
begin at 6:00 p.m. on the Thursday immediately preceding the Friday holiday or school
holiday or end at 6:00 p.m. on that Monday holiday or school holiday. as applicable.
Alternate Weekend Possession - In lieu of the weekend possession described in
the foregoing paragraph, NASH JESUS GONZALES shall have the right to possession of
the child not more than one weekend per month of NASH JESUS GONZALES' choice
beginning at 6:00 p.m. on the day school recesses for the weekend and ending at 6:00
p.m. on the day before school resumes after the weekend. Except as otherwise explicitly
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provided in this Possession Order, if such a weekend period of possession by NASH
JESUS GONZALES begins on a Friday that is a school holiday during the regular school
term or a federal, state, or local holiday during the summer months when school is not in
session, or if the period ends on or is immediately followed by a Monday that is such a
holiday, that weekend period of possession shall begin at 6:00 p.m. on the Thursday
immediately preceding the Friday holiday or school holiday or end at 6:00 p.m. on that
Monday holiday or school holiday, as applicable. NASH JESUS GONZALES may elect
an option for this alternative period of weekend possession by giving written notice to
MARISSA ANN GONZALES within ninety days after the parties begin to reside more
than 100 miles apart. If NASH JESUS GONZALES makes this election, NASH JESUS
GONZALES shall give MARISSA ANN GONZALES fourteen days' written notice
preceding a designated weekend. The weekends chosen shall not conflict with the
provisions regarding Christmas, Thanksgiving, Easter, the child's birthday, and Mother's
Day Weekend below.
2. Spring Break in All Years - Every year, beginning at 6:00 p.m. on the day the
child is dismissed from school for the school's spring vacation and ending at 6:00 p.m. on
the day before school resumes after that vacation.
3. Extended Summer Possession by NASH JESUS GONZALES -
With Written Notice by April 1 - If NASH JESUS GONZALES gives MARISSA
ANN GONZALES written notice by April 1 of a year specifying an extended period or
periods of summer possession for that year, NASH JESUS GONZALES shall have
possession of the child for two periods of twenty-one days (21) days beginning no earlier
than the day after the child's school is dismissed for the summer vacation and ending no
later than seven days before school resumes at the end of the summer vacation in that
year. These periods of possession shall be separated by at least a seven day periods and
begin and end at 6:00 p.m.
Without Written Notice by April! -If NASH JESUS GONZALES does not give
MARISSA ANN GONZALES written notice by April I of a year specifying an extended
period or periods of summer possession for that year, NASH JESUS GONZALES shall
have possession of the child for twenty-one consecutive days beginning at 6:00 p.m. on
July 1 and ending at 6:00 p.m. on July 22 of that year and for twenty-one consecutive
days beginning on July 29 at 6:00 p.m. and ending at 6:00 pm. on August 19 of that year.
(d) Holidays Unaffected by Distance
Notwithstanding the weekend and Thursday periods of possession of NASH JESUS
GONZALES, MARISSA ANN GONZALES and NASH JESUS GONZALES shall have
the right to possession of the child as follows:
1. Christmas Holidays in Even-Numbered Years - In even-numbered years, NASH
JESUS GONZALES shall have the right to possession of the child beginning at 6 p.m. on
the day the child is dismissed from school for the Christmas school vacation and ending
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at noon on December 28, and MARISSA ANN GONZALES shall have the right to
possession of the child beginning at noon on December 28 and ending at the time the
child's school regularly resumes after that Christmas school vacation.
2. Christmas Holidays in Odd-Numbered Years - In odd-numbered years,
MARISSA ANN GONZALES shall have the right to possession of the child beginning
at the time the child's school is regularly dismissed on the day the child is dismissed from
school for the Christmas school vacation and ending at noon on December 28. and NASH
JESUS GONZALES shall have the right to possession of the child beginning at noon on'
December 28 and ending at 6:00 p.m. on the day before the child's school regularly
resumes after that Christmas school vacation.
3. Thanksgiving in Odd-Numbered Years - In odd-numbered years, NASH JESUS
GONZALES shall have the right to possession of the child beginning at 6 p.m. on the day
the child is dismissed from school for the Thanksgiving holiday and ending at 6:00 p.m.
on the day before the child's school regularly resumes following Thanksgiving.
4. Thanksgiving in Even-Numbered Ycars - In even-numbered years, MARISSA
ANN GONZALES shall have the right to possession of the child beginning at the time
the child's school is regularly dismissed on the day the child is dismissed from school for
the Thanksgiving holiday and ending at the time the child's school regularly resumes
following Thanksgiving.
5. Child's Birthday - If a parent is not otherwise entitled under this Possession Order
to present possession of the child on the child's birthday, that parent shall have
possession of the child, along with the child's sibling, beginning at 6:00 p.m. and ending
at 8:00 p.m. on that day, provided that that parent picks up the child from the other
parent's residence and returns the child to that same place.
6. Father's Day Weekend - NASH JESUS GONZALES shall have the right to
possession of the child each year, beginning at 6:00 p.m. on the Friday preceding Father's
Day and ending at the time the child's school regularly resumes following Father's Day
or at 8:00 am. on the Monday after Father's Day if school is not in session, provided that
if NASH JESUS GONZALES is not otherwise entitled to possession of the children
under this Possession Order, NASH JESUS GONZALES shall pick up the child from
MARISSA ANN GONZALES' residence and return the child to that same place.
7. Mother's Day Weekend - MARlSSA ANN GONZALES shall have the right to
possession of the child each year, beginning at the time school recesses on the Friday
preceding Mother's Day and ending at the time the child's school regularly resumes
following Mother's Day.
8. Easter - MARISSA ANN GONZALES shall have possession of the children for
the Easter holiday weekend in even-numbered years beginning at the time the child's
school is regularly dismissed on the Friday preceding the holiday and ending at the time
the child's school regularly resumes after that vacation. NASH JESUS GONZALES
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.~ ........=.. _ _""""'_ _ _ _ ~
GONZALES shall have possession of the children for the Easter holiday weekend in odd-
numbered years beginning at the time the child's school is regularly dismissed on the
Friday preceding the holiday and ending at the time the child's school regularly resumes
after that vacation.
(e) Undesignated Periods of Possession
MARISSA ANN GONZALES shall have the right of possession of the child at all other
times not specifically designated in this Modified Possession Order for NASH JESUS
GONZALES.
(f) General Terms and Conditions
Except as otherwise explicitly provided in this Modified Possession Order, the terms and
conditions of possession of the child that apply regardless of the distance between the
residence of a parent and the child are as follows:
1. Surrender of Child by MARISSA ANN GONZALES - MARISSA ANN
GONZALES is ORDERED to surrender the child to NASH JESUS GONZALES at the
beginning of each period of NASH JESUS GONZALES' possession at the residence of
NASH JESUS GONZALES.
2. Return of Child by NASH JESUS GONZALES - NASH JESUS GONZALES is
ORDERED to return the child to the residence of MARISSA ANN GONZALES at the
end of each period of possession unless otherwise designated herein.
3. Surrender of Child by NASH JESUS GONZALES - NASH JESUS GONZALES
is ORDERED to surrender the child to MARISSA ANN GONZALES, if the child is in
NASH JESUS GONZALES' possession or subject to NASH JESUS GONZALES'
control, at the beginning of each period of MARISSA ANN GONZALES' exclusive
periods of possession, at the place designated in this Modified Possession Order.
4. Return of Child by MARISSA ANN GONZALES - MARISSA ANN
GONZALES is ORDERED to return the child to NASH JESUS GONZALES, if NASH
JESUS GONZALES is entitled to possession of the child. at the end of each of
MARISSA ANN GONZALES I exclusive periods of possession, at the place designated
in this Modified Possession Order.
5. Personal Effects - Each conservator is ORDERED to return with the child the
personal effects that the child brought at the beginning of the period of possession.
6. Designation of Competent Adult - Each conservator may designate any competent
adult to pick up and return the child, as applicable. IT IS ORDERED that a conservator
or a designated competent adult be present when the child is picked up or returned.
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7. Inability to Exercise Possession - Each conservator is ORDERED to give notice
to the person in possession of the child on each occasion that the conservator will be
unable to exercise that conservator's right of possession for any specified period.
8. Written Notice - Written notice shall be deemed to have been timely made if
received or postmarked before or at the time that notice is due or if sent by email.
Duration
The periods of possession ordered above apply to each child the subject of this
suit while that child is under the age of eighteen years and not otherwise emancipated.
Noninterference with Possession
IT IS ORDERED that neither conservator shall take possession of the children
during the other conservator's period of possession unless there is a prior written
agreement signed by both conservators or in case of an emergency.
TerminatWn 0/ Orders
The provisions of this decree relating to conservatorship, possession, or access
tenninate on the remarriage of MARISSA ANN GONZALES to NASH JESUS
GONZALES unless a nonparent or agency has been appointed conservator of the
children under chapter 153 of the Texas Family Code.
Geographical Area/or Primary Residence 0/ Children
The Court fmds that, in accordance with section 153.001 of the Texas Family Code, it is
the public policy of Texas to assure that children will have frequent and continuing contact with
parents who have shown the ability to act in the best interest of the child, to provide a safe,
stable, and nonviolent environment for the child, and to encourage parents to share in the rights
and duties of raising their child after the parents have separated or dissolved their marriage.
IT IS ORDERED that the primary residence of the children shall be within the State of
Texas, and the parties shall not remove the children from the State of Texas for the purpose of
changing the primary residence of the children until modified by further order of the court of
continuing jurisdiction or by written agreement signed by the parties and filed with the court.
IT IS FURTHER ORDERED that MARISSA ANN GONZALES shall have the
exclusive right to designate the children's primary residence within the State of Texas.
IT IS ORDERED that this geographical restriction on the residence of the children shall be
lifted if, at the time MARISSA ANN GONZALES wishes to remove the children from the State of
Texas for the purpose of changing the primary residence of the children, NASH JESUS
GONZALES does not reside within the State of Texas.
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Child's Passport and Travel Outside ofthe Country
IT IS ORDERED if a party applies for a passport for a child. that party is ORDERED to
notify the other conservator of that fact no later than seven (7) days after the application. IT IS
ORDERED that if a parent's consent is required for the issuance of a passport, that parent shall
provide that consent in writing no later than seven (7) days after receipt of the consent
documents, unless the parent has good cause for withholding that consent.
IT IS ORDERED that MARISSA ANN GONZALES shall have the right to maintain
possession of any passports of the children, B N G and G TJ
G
IT IS ORDERED that if a conservator intends to have the child travel outside the United
States during the conservator's period of possession of the child. the conservator shall provide
written notice to the other conservator. IT IS ORDERED that this written notice shall include all
the following:
1. any written consent form for travel outside the United States that is required by
the country of destination, countries through which travel will occur, or the intended carriers;
2. the date, time, and location of the child's departure from the United States;
3. a reasonable description of means of transportation, including, if applicable, all
names of carriers, flight nwnbers, and scheduled departure and arrival times;
4. a reasonable description of each destination of the intended travel, including the
name, address, and phone nwnber of each interim destination and the final travel location;
5. the dates the child are scheduled to arrive and depart at each such destination;
6. the date, time, and location of the child's return to the United States;
7. a complete statement of each portion of the intended travel during which the
conservator providing the written notice will not accompany the child; and
8. the name, permanent and mailing addresses, and work and home telephone
numbers of each person accompanying the child on the intended travel other than the conservator
providing the written notice.
The written notice or email may be in the form proscribed in the Texas Family Law
Practice Manual as the "Notice ofIntent for Child to Travel Outside the United States."
If the intended travel is a group trip, such as with a school or other organization, the
conservator providing the written notice is ORDERED to provide with the written notice all
infonnation about the group trip and its sponsor instead of stating the name, permanent and
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mailing addresses. and work and home telephone numbers of each person accompanying the
child.
IT IS FURTHER ORDERED that this written notice shall be furnished to the other
conservator no less than twenty-one (21) days before the intended day of departure of the child
from the United States.
IT IS ORDERED that any conservator who violates the tenns and conditions of these
provisions regarding the child's passports shall be liable for all costs incurred due to that
person's noncompliance with these provisions. These costs shall include, but not be limited to,
the expense of nonrefundable or noncreditable tickets, the costs of nonrefundable deposits for
travel or lodging, attorney's fees. and all other costs incurred seeking enforcement of any of
these provisions.
Subject to the tenns of the Possession Order recited herein, each party is ORDERED to
provide the other party at least thirty (30) days written notice or email that a party desires to
travel with the child beyond the territorial limits of the United States. Each party is ORDERED
to provide the other party appropriate written authorization, within ten (l0) days after written
request is received, as is necessary to allow the child to travel with the other party beyond the
territorial limits of the United States. The parties are ORDERED to exchange passports as is
necessary to allow such travel.
Child Support
IT IS ORDERED that NASH JESUS GONZALES is obligated to pay and shall pay to
MARISSA ANN GONZALES child support of one thousand eight hundred seventy-five dollars
($1,875.00) per month. with the first payment being due and payable on March 1.2013 and a
like payment being due and payable on the first day of each month thereafter until the first month
following the date of the earliest occurrence of one of the events specified below:
1. any child reaches the age of eighteen years or graduates from high school,
whichever occurs later. subject to the provisions for support beyond the age of
eighteen years set out below;
2. any child marries;
3. any child dies;
4. any child enlists in the armed forces of the United States and begins active service
as defined by section 101 of title 10 of the United States Code; or
5. any child's disabilities are otherwise removed for general purposes.
Thereafter, NASH JESUS GONZALES is ORDERED to pay to MARISSA ANN
GONZALES child support of one thousand five hundred dollars ($1,500.00) per month, due and
payable on the first day of the first month immediately following the date of the earliest
occurrence of one of the events specified above for the other child and a like sum of one
thousand five hundred dollars ($1,500.00) due and payable on the first day of each month
thereaftcr until the next occurrence of one of the events specified above for the other child.
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It is confinned that as of September 1,2013, there is no arrearage in child support owed
by NASH JESUS GONZALES as he has had made all child support payments as required
herein.
If the child is eighteen years of age and has not graduated from high school, IT IS
ORDERED that NASH JESUS GONZALES's obligation to pay child support to MARISSA
ANN GONZALES shall not tenninate but shall continue for as long as the child is enrolled-
1. under chapter 25 of the Texas Education Code in an accredited secondary school
in a program leading toward a high school diploma or under section 130.008 of
the Education Code in courses for joint high school and junior college credit and
is complying with the minimum attendance requirements of subchapter C of
chapter 25 of the Education Code; or
2. on a full-time basis in a private secondary school in a program leading toward a
high school diploma and is complying with the minimum attendance requirements
imposed by that school.
Withholding from EarniDgs
IT IS ORDERED that any employer of NASH JESUS GONZALES shall be ordered to
withhold from earnings for child support from the disposable earnings of NASH JESUS
GONZALES for the support of B N GO and G JO
G
IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of
NASH JESUS GONZALES by the employer and paid in accordance with the order to that
employer shall constitute a credit against the child support obligation. Payment of the full
amount of child support ordered paid by this decree through the means of withholding from
earnings shall discharge the child support obligation. If the amount withheld from earnings and
credited against the child support obligation is less than 100 percent of the amount ordered to be
paid by this decree, the balance due remains an obligation of NASH JESUS GONZALES, and it
is hereby ORDERED that NASH JESUS GONZALES pay the balance due directly to the state
disbursement unit specified below.
On this date the Court authorized the issuance of an OrderlNotice to Withhold Income for
Child Support.
Payment
IT IS ORDERED that all monthly child support payments shall be made through the state
disbursement unit at Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio,
Texas 78265-9791, and thereafter promptly remitted to MARISSA ANN GONZALES for the
support of the children. IT IS ORDERED that each party shall pay, when due, all fees charged
to that party by the state disbursement unit and any other agency statutorily authorized to charge
a fee.
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Change of Employment
IT IS FURTHER ORDERED that NASH JESUS GONZALES shall notify this Court and
MARISSA ANN GONZALES by U.S. certified mail, return receipt requested, of any change of
address and of any tennination of employment. This notice shall be given no later than seven
days after the change of address or the tennination of employment. This notice or a subsequent
notice shall also provide the current address of NASH JESUS GONZALES and the name and
address of his current employer. whenever that information becomes available.
Clerk's Duties
IT IS ORDERED that, on the request ofa prosecuting attorney, the title IV-D agency, the
friend of the Court, a domestic relations office, MARISSA ANN GONZALES, NASH JESUS
GONZALES, or an attorney representing MARlSSA ANN GONZALES or NASH JESUS
GONZALES, the clerk of this Court shall cause a certified copy of the OrderlNotice to Withhold
Income for Child Support to be delivered to any employer.
Suspension of Withholding from Earnings
The Court finds that good cause exists that no order to withhold from earnings for child
support should be delivered to any employer of NASH JESUS GONZALES as long as no
delinquency or other violation of this child support order occurs and as long as the Office of the
Attorney General Child Support Division is not providing services to MARISSA ANN
GONZALES. For the purpose of this provision, a delinquency has occurred if NASH JESUS
GONZALES has been in arrears for an amount due for more than thirty days or the amount of
the arrearages equals or is greater than the amount due for a one-month period. If a delinquency
or other violation occurs or if the Office of the Attorney General Child Support Division begins
providing services to MARlSSA ANN GONZALES, the clerk shall deliver the order to withhold
earnings as provided above.
ACCORDINGLY, IT IS ORDERED that, as long as no delinquency or other violation of
this child support order occurs and as long as the Office of the Attorney General Child Support
Division is not providing services to MARISSA ANN GONZALES, all payments shall be made
through the state disbursement unit and thereafter promptly remitted to MARISSA ANN
GONZALES for the support of the children. If a delinquency or other violation occurs or if the
Office of the Attorney General Child Support Division begins providing services to MARISSA
ANN GONZALES, all payments shall be made in accordance with the order to withhold
earnings as provided above.
HealtJ, Care
1. IT IS ORDERED that MARlSSA ANN GONZALES and NASH JESUS
GONZALES shall each provide medical support for each child as set out in this order as
additional child support for as long as the Court may order MARISSA ANN GONZALES and
NASH JESUS GONZALES to provide support for the last child under sections 154.001 and
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154.002 of the Texas Family Code. Beginning on the day MARISSA ANN GONZALES and
NASH JESUS GONZALES' actuaJ or potential obligation to support the last child under
sections 154.001 and 154.002 of the Family Code tenninates, IT IS ORDERED that MARISSA
ANN GONZALES and NASH JESUS GONZALES are discharged from the obligations set forth
in this medical support order with respect to that child, except for any failure by a parent to fully
comply with those obligations before that date.
2. Definitions -
"Health Insurance" means insurance coverage that provides basic health-care services,
including usual physician services, office visits, hospitalization, and laboratory, X-ray, and
emergency services, that may be provided through a health maintenance organization or other
private or public organization, other than medical assistance under chapter 32 of the Texas
Human Resources Code.
"Reasonable cost" means the total cost of health insurance coverage for all children for
which father or mother is responsible under a medical support order that does not exceed 9
percent of father's or mother's annual resources, as described by section I 54.062(b) of the Texas
Family Code.
"Reasonable and necessary health-care expenses not paid by insurance and incurred by or
on behalf of a child ll include, without limitation, any copayments for office visits or prescription
drugs, the yearly deductible, if any, and medical, surgical, prescription drug, mental health-care
services, dental, eye care, ophthalmological, and orthodontic charges. These reasonable and
necessary health-care expenses do not include expenses for travel to and from the health-care
provider or for nonprescription medication.
"Furnish" means:
a. to hand deliver the document by a person eighteen years of age or older
either to the recipient or to a person who is eighteen years of age or older
and permanently resides with the recipient;
b. to deliver the document to the recipient by email or certified mail, return
receipt requested, to the recipient's last known mailing or residence
address; or
c. to deliver the document to the recipient at the recipient's last known
mailing or residence address using any person or entity whose principal
business is that of a courier or deliverer of papers or documents either
within or outside the United States.
3. Findings on Health Insurance Availability- Having considered the cost,
accessibility, and quality of health insurance coverage available to the parties, the Court finds:
IT IS FURTHER FOUND that the following orders regarding health-care coverage are in
the best interest of the children.
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4. Provision of Health-Care Coverage-
NASH JESUS GONZALES is ORDERED to maintain health insurance in full force and
effect on each child who is the subject of this suit as long as child support is payable for that
child that covers basic health-care services, including usual physician services, office visits,
hospitalization, laboratory, X-ray, and emergency services.
IT IS ORDERED that the cash medical support provisions of this order shall be an
obligation of the estate of NASH JESUS GONZALES and shall not terminate on his death.
NASH JESUS GONZALES is ORDERED to furnish a true and correct copy of the health
insurance policy or certification and a schedule of benefits within 15 days of the signing of this
order. NASH JESUS GONZALES is ORDERED to furnish MARISSA ANN GONZALES the
insurance cards and any other fonos necessary for use of the insurance within 15 days of the
signing of this order. NASH JESUS GONZALES is ORDERED to provide, within three days of
receipt by him, to MARISSA ANN GONZALES any insurance checks, other payments, or
explanations of benefits relating to any medical expenses for the children that MARISSA ANN
GONZALES paid or incurred.
Pursuant to section 154.1 83 (c) of the Texas Family Code, the reasonable and necessary
health-care expenses of the children that are not reimbursed by health insurance are allocated as
follows: NASH JESUS GONZALES is ORDERED to pay 50 percent (50%) and MARISSA
ANN GONZALES is ORDERED to pay 50 percent (50%) of the unreimburscd health-care
expenses. Notwithstanding the foregoing, IT IS ORDERED that MARISSA ANN GONZALES
shall pay one hundred percent (100%) of any non-traditional health-care expenses which are not
recommended by the children's pediatrician.
The party who incurs a health-care expense on behalf of a child is ORDERED to submit
to the other party all fonns, receipts, bills, statements, and explanations of benefits reflecting the
uninsured portion of the health-care expenses within thirty days after he or she receives them.
The non-incurring party is ORDERED to pay his or her percentage of the uninsured portion of
the health-care expenses either by paying the health-care provider directly or by reimbursing the
incurring party for any advance payment exceeding the incurring party's percentage of the
uninsured portion of the health-care expenses within thirty days after the non-incurring party
receives the forms, receipts, bills, statements, and explanations of benefits.
These provisions apply to all unreimbursed health-care expenses of any child who is the
subject of this suit that are incurred while child support is payable for that child.
5. Secondary Coverage - IT IS ORDERED that if a party provides secondary health
insurance coverage for the children, both parties shall cooperate fully with regard to the handling
and filing of claims with the insurance carrier providing the coverage in order to maximize the
benefits available to the children and to ensure that the party who pays for health-care expenses
for the children is reimbursed for the payment from both carriers to the fullest extent possible.
6. Compliance with Insurance Company Requirements - Each party is ORDERED to
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confonn to all requirements imposed by the terms and conditions of the policy of health
insurance covering the children in order to assure maximum reimbursement or direct payment by
the insurance company of the incurred health-care expense, including but not limited to
requirements for advance notice to any carrier, second opinions, and the like. Each party is
ORDERED to attempt to use "preferred providers," or services within the health maintenance
organization, if applicable; however, this provision shall not apply if emergency care is required.
Disallowance of the bill by a health insurer shall not excuse the obligation of either party to
make payment; however, if a bill is disallowed or the benefit reduced because of the failure of a
party to follow insurance procedures or requirements, IT IS ORDERED that the party failing to
follow the insurance procedures or requirements shall be wholly responsible for the increased
portion of that bill.
7. Claims - Except as provided in this paragraph, the party who is not carrying the
health insurance policy covering the children is ORDERED to furnish to the party carrying the
policy, within fifteen days of receiving them, any and all forms, receipts, bills, and statements
reflecting the health-care expenses the party not carrying the policy incurs on behalf of the
children. In accordance with section 1204.251 and 1504.055(a) of the Texas Insurance Code, IT
IS ORDERED that the party who is not canying the health insurance policy covering the
children, at that party's option, may file any claims for health-care expenses directly with the
insurance carrier with and from whom coverage is provided for the benefit of the children and
receive payments directly from the insurance company. Further, for the sole purpose of section
1204.251 of the Texas Insurance Code, MARISSA ANN GONZALES is designated the sole
managing conservator or possessory conservator of the children.
The party who is carrying the health insurance policy covering the children is ORDERED
to submit all forms required by the insurance company for payment or reimbursement of health-
care expenses incurred by either party on behalf of a child to the insurance carrier within fifteen
days of that party's receiving any form, receipt, bill, or statement reflecting the expenses.
8. Constructive Trust for Payments Received - IT IS ORDERED that any insurance
payments received by a party from the health insurance carrier as reimbursement for health-care
expenses incurred by or on behalf of a child shall belong to the party who paid those expenses.
IT IS FURTHER ORDERED that the party receiving the insurance payments is designated a
constructive trustee to receive any insurance checks or payments for health-care expenses paid
by the other party, and the party carrying the policy shall endorse and forward the checks or
payments, along with any explanation of benefits received, to the other party within three days of
receiving them.
9. WARNING - A PARENT ORDERED TO PROVIDE HEALTH INSURANCE
OR TO PAY THE OTHER PARENT ADDITIONAL CHILD SUPPORT FOR THE COST OF
HEALTH INSURANCE WHO FAILS TO DO SO IS LIABLE FOR NECESSARY MEDICAL
EXPENSES OF THE CHILDREN, WITHOUT REGARD TO WHETHER THE EXPENSES
WOULD HAVE BEEN PAID IF HEALTH INSURANCE HAD BEEN PROVIDED, AND FOR
THE COST OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID
ON BEHALF OF THE CHILDREN.
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Miscellaneous Child Support Provisions
No Credit for Informal Payments
IT IS ORDERED that the child support as prescribed in this decree shall be exclusively
discharged in the manner ordered and that any direct payments made by NASH JESUS
GONZALES to MARISSA ANN GONZALES or any expenditures incurred by NASH JESUS
GONZALES during NASH JESUS GONZALES' periods of possession of or access to the
children, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertaimnent are
deemed in addition to and not in lieu of the support ordered in this decree.
Support 88 Obligation of Estate
IT IS ORDERED that the provisions for child support in this decree shall be an
obligation of the estate of NASH JESUS GONZALES and shall not terminate on the death of
NASH JESUS GONZALES. Payments received for the benefit of the children, including
payments from the Social Security Administration, Department of Veterans Affairs or other
governmental agency or life insurance proceeds, annuity payments, trust distributions, or
retirement survivor benefits, shall be a credit against thi
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