Mary Lynn Kantara Gerke v. Jamil James Kantara

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ACCEPTED 01-14-00082-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 3/13/2015 12:00:34 PM CHRISTOPHER PRINE CLERK No. 01-14-00082-CV FILED IN IN THE 1st COURT OF APPEALS HOUSTON, TEXAS 3/13/2015 12:00:34 PM FIRST COURT OF APPEALS CHRISTOPHER A. PRINE Clerk AT HOUSTON, TEXAS MARY LYNN KANTARA GERKE Appellant, v. JAMIL “JAMES” KANTARA Appellee. Appealed from the 311TH District Court of Harris County, Texas APPELLEE’S BRIEF ________________________________________________________________________ Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Tel: (281) 486-5066 Fax: (281) 486-2041 court_documents@schmitzlaw.com Attorney for Jamil “James” Kantara ORAL ARGUMENT WAIVED i TABLE OF CONTENTS STATEMENT OF ORAL ARGUMENT………………………………………….v REFERENCE GUIDE……………………………………………………………...v INDEX OF AUTHORITIES……………………………………………………...vii STATEMENT OF FACTS…………………………………………………………1 SUMMARY OF ARGUMENT…………………………………………………...13 ARGUMENT AND AUTHORITIES.……………………………………..……..14 Reply to Issue I:………………………………………………………….………..13 I. Response to Brief of Appellant’s Issue No. 1: The trial court’s final “Order in Suit to Modify Parent- Child Relationship” did not violate Mary’s due process rights………………………………………………………...14 Ia. –Ic. Mary Failed To Preserve Error……………………………..14 I.1 The Court Did Not Modify Items 1, 2, 3, 4, 5, 8, 13 and 14……………………………………………………….16 I.1a. Item 1 – The Court did not Modify Mary’s right to receive information from the other conservator of the children but only stated the method of information transmittal…………………………………..16 I.1b. Items 2, 3, 4, 5 and 8 - Removal of the after consultation requirement and insertion of ii communication through OurFamilyWizard requirement did not modify the 2010 Order………………………...18 Ie. Changing Beginning and Ending Times of Mary’s Week-end Visitation Did Not Modify the 2010 Order and If It Did, the Issue Was Tried By Consent………………………………………………………………22 1.1c. Removal of Mid-Week Visitation……………………………..25 Reply to Issue II:…………………………………………………………………..13 II. Response to Brief of Appellant’s Issue No. II: The trial court did not abuse its discretion when it ordered Mary to pay $50,000.00 in attorney fees and if it was error, it was invited error………………………………25 IIa. Response to Brief of Appellant’s Issue No. 11a: The trial court did not abuse its discretion when it ordered Mary to pay $50,000.00 in attorney fees…………………………………………………………27 IIb. Response to Brief of Appellant’s Issue No. IIb: The evidence is legally and factually sufficient to support a finding that Mary’s suit was frivolous or designed to harass James…………………………………………32 IIc. Response to Brief of Appellant’s Issue No. IIc: The evidence is legally and factually sufficient to support the court’s finding that $50,000 is a reasonable amount in attorney’s fees………………………………..27 IId. Response to Brief of Appellant’s Issue No. IId: The trial court’s alleged errors regarding the fourteen modifications did not affect the attorney fees determination…………………………………………………...34 iii III. There is no requirement attorney fees awarded under Tex. Fam. Code §156.005 be reasonable………………..……36 PRAYER………………………………………………………………………….37 CERTIFICATE OF COMPLIANCE……………………………………………...38 CERTIFICATE OF SERVICE………………………………………………........39 APPENDIX 9 – Order for Counseling APPENDIX 10 – Jamil “James” Kantara’s Response to Mary Lynn Gerke’s Motion for Relief from the Order to Carry Secondary Insurance and for the Court to Select a Preferred Provider and Order XXXX to Counseling and Request for Attorney Fees APPENDIX 11 – Temporary Order on Mary Lynn Kantara Gerke’s Motion for Relief from the Order to Carry Secondary Insurance and for the Court to Select A Preferred Provider and Order XXXX to Counseling APPENDIX 12 – Letter to Mary Gerke regarding Health Insurance Premiums APPENDIX 13 – Motions Filed by Mary Gerke iv Waiver of Oral Argument Appellee waives any request for oral arguments. Reference Citation Guide The Parties Appellant, Mary Lynn Kantara Gerke “Mary” Petitioner in trial Appellee, Jamil “James” Kantara “James” Respondent and Counter-petitioner in trial The Record on Appeal Clerk’s record “CR __” (page number) (filed February 26, 2014) Reporter’s Record Vol 1 “RR1 __” (page number:line) (filed February 24, 2014) Reporter’s Record Vol 2 “RR2 __” (page number:line) (filed February 24, 2014) Reporter’s Record Vol 3 “RR3 __” (page number:line) (filed February 24, 2014) Reporter’s Record Vol 4 “RR4 __” (page number:line) (filed February 24, 2014) v Reporter’s Record Vol 5 “RR5 __” (page number:line) (filed February 24, 2014) Reporter’s Record Vol 6 “RR6 __” (page number:line) (filed February 24, 2014) Reporter’s Record Vol 7 “RR7 __” (vol: page number) (filed February 24, 2014) Reporter’s Record Vol 8 “RR8 __” (vol: page number) (filed February 24, 2014) Reporter’s Record Vol 9 “RR9 __” (vol: page number) (filed February 24, 2014) Reporter’s Record Vol 10 “RR10 __” (vol:page number) (filed February 24, 2014) Reporter’s Record Vol 11 “RR11 __” (vol:page number) (filed February 24, 2014) Reporter’s Record Vol 12 “RR12 __” (vol:page number) (filed February 24, 2014) Reporter’s Record Vol 13 “RR13 __” (vol:page number) (filed February 24, 2014) Reporter’s Record Vol 0 “RR0 __” (vol: page number) (filed October 30, 2014) vi Index of Authorities Cases Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997)……………………………………………………...30 Bailey v. Rodriguez, 351 S.W.3d 424 (Tex. App.--El Paso 2011)………………………………………28 Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983)…………………………………………………......15 Davis v. Huey, 571 S.W.2d 859 (Tex. 1978)……………………………………………………...29 Diamond v. Soucie, 239 S.W.3d 428 (Tex. App.—Dallas 2007, no pet.)……………………………...30 Farish v. Farish, 921 S.W.2d 538 (Tex. App.-- Beaumont 1996, no writ)………………………….27 Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.--Houston [14th Dist.] 2013)………………...20, 21, 24 Greene v. Young, 174 S.W.3d 291 (Tex. App.--Houston [1st Dist.] 2005)………………………….24 Hirczy v. Hirczy, 838 S.W.2d 783 (Tex. App. – Corpus Christi 1992, writ denied…………………15 Holley v. Holley, 864 S.W.2d 703 (Tex. App.—Houston [1st Dist.] 1993, writ denied)………...28, 29 In re A.B.P., 291 S.W. 3d 91 (Tex. App.—Dallas 2009, no pet.)………………………………30 vii In re B.L.D., 113 S.W.3d 340 (Tex. 2003)……………………………………………………...16 In re D.S., 76 S.W.3d 512 (Tex. App.—Houston [14th Dist.] 2002, no pet.)……………...….28 In re Hanker, 2013 Tex. App. LEXIS 7705 (Tex. App.--Houston [1st Dist.] June 25, 2013)......31 In re TMT Trailer Ferry, Inc., 577 F.2d 1296 (5th Cir. 1978)……………………………………………………..31 In the Interest of Pecht, 874 S.W.2d 797 (Tex. App.--Texarkana 1994, no writ)………………………….28 Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314 (Tex. 2012)……………………………………………………...16 Mattox v. Jackson, 336 S.W.3d 759 (Tex. App.--Houston [1st Dist.] 2011)………………………….29 McGuire v. McGuire, 4 S.W.3d 382 (Tex. App.—Houston [1st Dist.] 1999, no pet.)……………………28 McMahon v Zimmerman, 433 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2014)………………………….31 Protect Envtl. Servs. v. Norco Corp., 403 S.W.3d 532 (Tex. App.—El Paso, 2013, pet denied)………………………...31 Pirtle v. Gregory, 629 S.W.2d 919 (Tex. 1982)……………………………………………………...16 Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546 (5th Cir. 2004)………………………………………………………31 Ragsdale v. Progressive Voters League, 801 S.W.2d 880 (Tex. 1990)……………………………………………………...31 viii Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545 (Tex. 2009)……………………………………………………...31 Sterling v. Alexander, 99 S.W.3d 793 (Tex. App.--Houston [14th Dist.] 2003. pet. denied)……………..33 Tittizer v. Union Gas Corp., 171 S.W.3d 857, (Tex. 2005)……………………………………………………..27 Walker v. Packer, 827 S.W.2d, 833 (Tex. 1992)……………………………………………………..28 Wolters v. White, 659 S.W.2d 885 (Tex. App.—San Antonio 1983, writ dism’d)…………………..27 Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)……………………………………………………...28 Statues Tex. Fam. Code §106.002………………………………………...13, 26, 27, 31, 36 Tex. Fam. Code §153.073………………………………………………...16, 18, 19 Tex. Fam. Code §153.132………………………………………………….5, 14, 19 Tex. Fam. Code §153.312………………………………………………...22, 23, 25 Tex. Fam. Code §156.005…………………………………….13, 26, 27, 31, 33, 36 ix Rules Tex. R. App. P. 33.1(a)(1)(A)……………………………………………………..15 Tex. R. App. P 38.1(h)…………………………………………………………….33 x TO THE HONORABLE JUSTICES OF THE COURT OF APPEALS: Comes now, Jamil “James” Kantara (“James”) and submits this his Appellee’s Brief. Appellant is Mary Lynn Kantara Gerke (“Mary”). STATEMENT OF FACTS On May 11, 2011, Appellant, Mary, filed her suit for modification (RR4_ 71:16-17) against James seeking to modify a prior modification order dated April 15, 2010 (hereinafter the “2010 Order”).1 2 Trial began in October 2012 and ended in August 2013. On October 28, 2013, the Court entered its order (hereinafter the “2013 Order”).3 This is an appeal from the 2013 Order. 4 1. An Overview Of The Parties’ Co-parenting From The Date Of The 2010 Order Through The Date Of Trial. a. Consultation Regarding the Children’s Medical Providers Consultation between the parents regarding the children’s medical providers was impossible. Mary was an impediment to obtaining medical providers for the children. (RR8_75:24-76:6) The acrimony between Mary and James was so 1 Brief of Appellant Appendix 3 2 Note: Mary filed her Petition to Modify one year after the 2010 Order. 3 Brief of Appellant Appendix 2 4 James agrees at the time the trial court entered its judgment in this case, only three of the children were still the subject of this suit. Presently, only two of the children are under the age of eighteen and subject to the Order. -1- horrific, it was affecting the pediatrician’s ability to provide healthcare for the children. (RR6_29:21-30:22) James was unable to take the children to counselors or psychologists without Mary bombarding the counselor or psychologist with derogatory comments about James. (RR4_46:18-47:2) When James communicated to Mary about the children’s medical appointments, Mary referred to James as Mr. Munchhausen. (RR7_22:22-25) James was unable to obtain counseling for JK4 because of Mary’s interference. (RR4_45:19-47:20) b. Complaints Filed Against the Children’s Medical Providers When James sought medical evaluation or treatment for his children, complaints were filed against the children’s medical providers. (RR7_83:5-84:4) Many of the children’s medical providers refused to provide treatment for the children after receiving complaints or strongly worded letters from Mary. i. Dr. Linda Ewing-Cobb with the UT Medical Group made an assessment on JK4, the youngest child, regarding his special needs. (RR4_46:10-11) Mary filed a complaint against Dr. Ewing-Cobbs with the Medical Board. (RR4_61:18-62:6) (RR5_21:10-22:4) Dr. Ewing-Cobb refused to further treat the children after Mary filed a complaint against her. (RR4_45:21-46:18) -2- ii. Dr. Michael Monmouth, JK2’s orthopedist, informed James a complaint was filed against him after JK2’s successful surgery. (RR3_54:22-55:6) Mary denies she filed the complaint, but she suspects the complaint was filed by her boyfriend, Dr. Gerber. (RR7_29:23-30:12) iii. Dr. Martha Kennedy, a noted child psychologist, would not see or treat the children after receiving strong-language emails from Mary. (RR3_84:22-85:20) iv. Dr. Hope Moser, a Ph.D. nurse practitioner, refused to provide any more assistance to the children because she felt she was being harassed and abused and her professional and personal capacity was being attacked. (RR8_5:20-8:11) v. Dr. Kit Harrison, a child psychologist hired by James to evaluate the children, wasn’t going near the children to evaluate them unless James sought specific court protection from Mary. (RR6_63:1-6) c. Mary’s Interference with the Children’s Education i. Mary complained about and had the elementary school diagnostician removed from the children’s care. (RR3_93:21-94:14) -3- ii. Mary attempted to make changes to the children’s school schedules even though James had the exclusive right to make educational decisions. (RR3_19:13-21:6) iii. Mary interfered with James’ exclusive educational rights by telling school officials they are required to confer with Mary before making decisions regarding the children. (RR3_34:3-11) iv. Mary threatened James to go to court if James changed the school the children attended. (RR3_36:14-37:12) d. Mary’s Harassment of James. i. Mary told the children’s school James was not feeding the children. (RR7_11:12-12:16) ii. Mary called the police and told them James had weapons in the house (RR6_80:13-22) because she felt he may have weapons in the house. (RR6_81:7-21) iii. Mary told the child’s physician JK1 was not being fed. (RR6_85:25- 86:2) iv. Report made to CPS James was abusing the children. (RR7_13:13- 14:2) v. Report made to CPS James was sexually abusing his daughter (RR7_14:18-25). -4- vi. Report made to CPS James had a history of psychological and physical violence. (RR5_104:1-3) vii. Mary did not recall reporting to school personnel the children had hygiene problems, but Mary sent shampoo and other hygiene items to the school nurse for the children. (RR7_15:20-16:24) viii. Mary refused James permission to obtain the children’s passports claiming “good cause.” (RR3_66:2-15) When questioned why, Mary responded because James is of Lebanese descent. (RR5_74:11-15) 2. Mary’s Requested Relief: An Overview Mary, in her appellate brief, lists only nine (9) of her requested modifications.5 Mary fails to remember all the modifications she requested. Mary’s Fourth Amended Petition to Modify Parent-Child Relationship lists the following contested issues.6 7 9.2 Rights and Duties – Mary requested the following independent rights regarding the children under Tex. Fam. Code §153.132: (i) right to designate the primary residence of the children; (ii) right to receive child support for the support of the children; 5 Brief of Appellant Pages 4, 5 6 Brief of Appellant Appendix 5 Pages 3-7 7 Please note some of Mary’s issues were already encompassed in the 2010 Order and were not contested and Mary’s requested changes have been summarized for brevity. -5- (iii) right to consent to medical, dental and surgical treatment involving invasive procedures; (iv) right to consent to psychiatric and psychological treatment; and (v) right to make educational decisions; 9.3.1 Non-Primary Conservator - Mary requested in the event she is not named as the conservator with the right to designate the primary residence of the children: (i) She be granted expanded possession order with exchanges at school, including weekends and holidays which includes overnight mid-week possession. 9.4 Electronic Access – Mary requested unrestricted communications by electronic means with the children. 9.5 Passports and Foreign Travel – Mary requested removal of the passport provision and the children’s travel be limited to the United States. 9.6 Mary requested alternating weeks of summer possession. 9.8 Mary requested Court ordered counseling for all the children. -6- 10. Support - Mary requested termination of her child support obligation. 10.1 Mary requested if she is named primary conservator, James pay child support; and 10.3 Termination of her obligation to carry secondary health insurance on the children. 11. Permanent Injunctions - Mary requested the following permanent injunctions against James: 11.1 Enjoining James from obtaining passports for the children and from international travel with the children. 11.3 Enjoining James from entering JK3’s bathroom when JK3 is present without JK3’s express permission. 11.4 Enjoining James from biting the children. 11.6 Require James to provide healthcare EOBs within ten (10) days of receipt. 11.7 Enjoining James from punishing the children for reporting any concerns related to incidents with either parent to the other parent, or any counselor, teacher, CPS worker or other professional. -7- 11.8 Enjoining James from forcing the children to wait for him after school or activities at his friends’ house. 11.9 Enjoining James from changing the children’s schools. 13. Unreimbursed Healthcare Expenses of the Children - Confirmation of unreimbursed healthcare expenses in the amount of $1,549.93. 14. Costs Related to Violation of Court Orders - Mary requested James pay any past or future costs incurred by Mary related to violations of and/or failure to follow the Court’s order. 15. Amicus Fees - Mary requested James pay the amicus fees and costs. 16. Attorney’s Fees - Mary requested James pay her attorney fees. 17. Costs - Mary requested James pay her costs including any out-of-pocket expenses. In addition to the above, Mary requested additional specific modifications during trial. (4RR_66:16-69:5) Specifically, Mary requested: a. Summer vacation be split with 35 days to be divided into three parts to the non-primary parent; -8- b. Electronic communication between the kids and both parents contain common parental controls and cell phones always allowed number and GPS; c. James to bear the cost of JK4’s counseling with Dr. Brandon or in the alternative, usage of the preferred insurance providers and that the parents alternate taking JK4; d. Clarity regarding usage of preferred providers and providing other parent with information and EOBs; and e. Parties split the children tax exemption. 3. The 2013 Temporary Modification Orders: An Overview a. Counseling Mary states the Court ordered counseling for the children over the objection of James. Mary has misinformed this Court. Mary refers to an Order of Counseling dated April 9, 2013. The Order was issued on the Court’s own initiative under T.R.C.P. 204.4.8 (CR10) The Order provided James was to select the psychologist or counselor to examine and evaluate and treat the children. Neither party could call the counselor as a witness at trial and the psychologist nor counselor’s records were protected from discovery. Each party was to pay one- half of the cost. 8 Appellee’s Brief Appendix 9 -9- James selected Dr. Michael Brandon who had been treating JK4 for over six months. Mary objected to the continued use of Dr. Brandon because he was not a preferred provider under James’ medical plan. James explained to Mary, Dr. Brandon’s total fees would be approximately equal to the insurance deductible amount owed under his insurance. 9 CR15 The Court subsequently approved counseling by Dr. Brandon.10 (CR27) b. Secondary Health Insurance Mary states the Court relieved her of her obligation to carry secondary health insurance on the children only after a contested hearing. This statement is true as phrased but what Mary omits is the fact James had already agreed to release her from her obligation to carry secondary health insurance as long as Mary reimbursed his cost of the children’s health insurance premium. 11 CR21 The only issue was what percentage of the cost of the children’s health insurance premium was Mary going to pay. James wanted full reimbursement; Mary wanted to pay nothing. The Court divided the cost of the children’s health insurance premium between the parties. 9 Appellee’s Brief Appendix 10 10 Appellee’s Brief Appendix 11 11 Appellee’s Brief Appendix 12 - 10 - 4. The Final Trial Mary, in her appellate brief, insinuates the Court granted the majority of Mary’s requested relief and denied the majority of James’ requested relief. A quick review of Mary’s requested relief will debunk this myth perpetrated by Mary. The Court denied the following modifications requested by Mary: 1. the right to designate the primary residence of the children; 2. the right to collect child support from James; 3. the right to consent to medical, dental, or psychological treatment of the children; 4. the right to make educational decisions on behalf of the children; 5. expanded possession order with the children; 6. overnight mid-week possession; 7. unrestricted communication with the children by electronic means; 8. removal of the passport provision and enjoining James from applying for passports for the children; 9. limiting the children’s travel to the United States; 10. alternating weeks of summer possession of the children between the parties; 11. restricting summer vacation of the non-primary parent; - 11 - 12. continuing counseling for all the children; 13. permanent injunctions against James; 14. confirmation of unreimbursed health care expenses of the children; 15. require the children’s electronic communication contain parental controls and cell phones always allowed number and GPS; 16. parties to split the tax exemption for the children; 17. James pay 100% of the amicus fees; and 18. James pay attorney fees and costs. 5. Attorney Fees: An Overview At the conclusion of the trial, Judge Newey told Mary on the record she had been an obstructionist almost from the day following the hearing in the previous case in Galveston. (RR8_136:19-137:5) The Court reiterated its obstructionist finding in its Findings of Fact 8 12. Mary has made it abundantly clear to James she is going to continue her obstructionist actions until she gets what she wants. (RR8_88:2-14) At trial James’ counsel testified James had incurred attorney fees and expenses in the amount of $103,811.93. (RR8_34:19-25) The court found in its Additional Findings of Fact 4 and 5 Mary had frivolously filed her suit for 12 Brief of Appellant Appendix 7 - 12 - modification and the suit for modification was designed to harass James 13. The Court in its Additional Conclusions of Law 2 awarded reduced attorney fees under Tex. Fam. Code §156.005 and §106.002 in the amount of $50,000.00, which the court found to be reasonable and necessary. 14 SUMMARY OF THE ARGUMENT Reply to Issue I: The trial court’s final Order in Suit to Modify Parent-Child Relationship did not violate Mary’s due process rights. Mary alleges fourteen points of error with regard to modifications. Mary failed to preserve error on thirteen of those points and thus waived error. In addition, if the court finds Mary did not waive error, ten of Mary’s alleged modifications were not modifications but merely clarifications to the previous Order. Reply to Issue No. 2: The trial court did not abuse its discretion when it ordered Mary to pay $50,000.00 in attorney fees and if it was error, it was invited error. 13 Brief of Appellant Appendix 8 14 Brief of Appellant Appendix 8 - 13 - Argument & Authorities I. Response to Brief of Appellant’s Issue No. 1: The trial court’s final “Order in Suit to Modify Parent-Child Relationship” did not violate Mary’s due process rights. Ia. –Ic. Mary Failed To Preserve Error Mary argues the trial court made fourteen modifications 15 to the 2010 Order which violated Mary’s due process rights, have no support in the pleadings, and were not tried by consent. Mary failed to preserve error with respect to 1-11 and 13 -14. At the conclusion of the trial, the Court awarded James sole managing conservatorship of the children. At the motion for entry of judgment/motion for reconsideration, counsel for Mary pointed out there were no pleadings on file to remove the parties as joint managing conservators. (RR9_15:16-19) The Court sustained the objection and retained the parties as joint managing conservators; however, the Court granted James additional exclusive rights regarding the children. The Court asked counsel for Mary which rights she was specifically worried about under TFC §153.132. (RR9_10:23-24) Counsel for Mary replied the right to consent to marriage and enlistment, the right to represent the children in legal actions, and the right to service and earnings of the children. (RR9_10:25- 15 Brief of Appellant Pages 10-13 - 14 - 12:6) Mary failed to specifically object there were no pleadings on file to support the modified rights, thus waiving any error. In addition, Mary did not object to alleged modifications 1, 2, 3, 4, 5, 8, 10, 11, 13 or 14. Appellee concedes Mary did preserve with respect to alleged modification 12 regarding Mary’s mid-week possession by specifically pointing out there were no pleadings on file requesting Mary’s mid-week visitation be terminated. Mary cites Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812-813 (Tex. 1983) for the proposition the trial court erred in entering relief which was not pled for. Mary failed to preserve error, if any, because, unlike the appellant in Cunningham, Mary did not specifically present her complaint to the trial court. The Rules of Appellate Procedure require, as a prerequisite to presenting a complaint for appellate review, the record must show that “the complaint was made to the trial court by timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint.” Tex. R. App. P. 33.1(a)(1)(A); Hirczy v. Hirczy, 838 S.W.2d 783, 785 (Tex. App.--Corpus Christi 1992, writ denied). In an effort not to mislead this Court, James acknowledges Mary filed a Motion for New Trial, which generally stated the Court modified rights and duties under Chapter 153 of the Texas Family Code. Mary failed to identify which - 15 - modifications for which there no pleadings to support the relief granted. Mary’s failure deprived the Court the ability to cure the alleged defect. A party should not be able to neglect to complain about an error at trial and then surprise his opponent on appeal. Mansions in the Forest, L.P. v. Montgomery County, 365 S.W.3d 314, 317 (Tex 2012), citing In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003) and Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). This Court should deny Mary’s appeal regarding alleged modifications 1-11 and 13-14 for failure to preserve error. I.1 The Court Did Not Modify Items 1, 2, 3, 4, 5, 8, 13 and 14. I.1a. Item 1 – The Court did not Modify Mary’s right to receive information from the other conservator of the children but only stated the method of information transmittal. Tex. Fam. Code 2010 Order16 2013 Order17 1 §153.073 Both parties had the right to Mary has the right to receive information from any receive information from other conservator of the any other conservator of children concerning the health, the children concerning education and welfare of the the health, education and children welfare of the children at the option of Jamil “James” Kantara 16 Brief of Appellant Appendix 3 17 Brief of Appellant Appendix 2 - 16 - During the two and one-half year interval between the 2010 Order and the commencement of trial in 2013, James sent Mary over 2,000 pages of emails informing Mary of the children’s health, education, and welfare. (RR8_98:23- 99:10) This amount averaged over 2 emails a day, 7 days a week, and 365 days a year. The parties continually argued whether James was providing Mary sufficient timely information concerning the children. In order to stop the bickering, the court ordered James to provide information to Mary through OurFamilyWizard 18 and inform Mary in a timely manner of significant information concerning the health, education and welfare of the children. 19 The court did not modify Mary’s rights under the 2010 Order to: (i) access the children’s medical, dental, psychological, and educational records; (ii) consult with physicians, dentists, or psychologist of the children; (iii) consult with school officials concerning the children’s welfare and educational status including school activities; (iv) attend school activities; (v) be designated in the children’s records as the person to be notified in case of emergency; (vi) consent to medical and dental treatment during an emergency involving immediate danger to the health and safety of the children; 18 Brief of Appellant Appendix 2 page 26 19 Brief of Appellant Appendix 2 page 4 - 17 - and (vii) to manage the estate of the children to the extent the estates have been created by Mary or her family. 20 The trial court did not modify Mary’s right to receive information from James concerning the children but only required the information be posted on OurFamilyWizard. It is important to note neither party is appealing this method of information exchange. The 2013 Order simply states James may, at his option, provide redundant information concerning the children to Mary outside of OurFamilyWizard. I.1b. Items 2, 3, 4, 5 and 8 - Removal of the after consultation requirement and insertion of communication through OurFamilyWizard requirement did not modify the 2010 Order Tex. Fam. Code 2010 Order21 2013 Order22 2 §153.073 Both parties had the right to Mary only has the right confer with the other parent to to confer with the other the extent possible before parent to the extent making a decision concerning possible before making a the health, education and decision concerning the welfare of the children health, education, and welfare of the children at the option of Jamil “James” Kantara 20 Brief of Appellant Appendix 2 Pages 3 and 4 21 Brief of Appellant Appendix 3 22 Brief of Appellant Appendix 2 - 18 - 3 §153.073 James had the exclusive right James awarded exclusive after consultation with Mary to right with option to consent for the children to consult with Mary medical and dental care not involving an invasive procedure 4 §153.132 James had the exclusive right James awarded exclusive after consultation with Mary to right with option to consent to medical, dental and consult with Mary surgical treatment involving invasive procedure 5 §153.132 James had the exclusive right James awarded exclusive after consultation with Mary to right with option to consent to psychiatric and consult with Mary psychological treatment of the children 8 §153.132 James had the exclusive right to James awarded exclusive make decisions regarding the right to make decisions children’s education after regarding the children’s consultation with Mary education (i.e. no obligation to consult with Mary) The conflict between James and Mary has gone on for nine and a half years. (RR8_87:14-21) The prior modification 2010 Order granted James certain exclusive rights with regard to the children but conditioned those rights upon James consulting with Mary. In addition, the 2010 Order gave each parent the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children. James sent Mary over 2,000 pages of emails consulting with and informing Mary of issues regarding the children’s health, education, and welfare. - 19 - (RR8_98:23-99:10) Mary responded by making derogatory comments about James. (RR8_65:12-13) Mary seldom communicated with James in a productive fashion. (RR8_124:23-125:8) Mary or her boyfriend filed numerous complaints against the children’s medical providers, school officials, and James.23 James tried every type of communication possible in an effort to effectively communicate with Mary. (RR8_125:1-8) James testified without court intervention, the conflict will not stop. (RR8_87:14-21) The parties are not communicating effectively regarding scheduling the children’s medical appointments (RR3_89:10-91:17), making educational decisions on behalf of the children (RR3_19:4-21:6, RR3_24:9-23), and choosing medical providers for the children. (RR2_94:10-95:10) Mary even complains the communication between the parties is poor. (RR7_71:15-23) Looking at the record, it was plain to see consultation between the parents without a stated method was not working, so the Court provided a method of consultation between the parents, which was the use of OurFamilyWizard. Appellee is well aware of the recent Flowers decision regarding notice pleadings and trial by consent. Flowers v. Flowers, 407 S.W.3d 452 (Tex. App. Houston [14th Dist.] 2013). Flowers is distinguishable in two important respects. 23 See Appellee’s Statement of Facts - 20 - First, in Flowers, the Court completely removed the requirement for consultation prior to Ms. Flowers exercising her exclusive rights contained in the original order. In the instant case, the Court ordered James to utilize the notification and communication facilities of “OurFamilyWizard” to consult with Mary. The Court did not remove the consultation requirement but only stated which method should be used. Mary does not appeal the use of “OurFamilyWizard.” Second, in Flowers, the original order did not condition Ms. Flowers’ requirement of consultation with Mr. Flowers. In the instant case, James was only required to confer with Mary to the extent possible before making a decision concerning the health, education, and welfare of the children. There is so much “bad blood” between Mary and James, the Court simply fashioned a method wherein the parties could confer with one another to the extent possible. Lastly, the parties tried the issue of method of consultation by consent. Mary claimed James was not consulting her before making decisions regarding the children. Mary and the Amicus Attorney both questioned James regarding communication with Mary. (RR8_98:23-102:2, RR8_123:4-16, RR8_123:23- 125:8) The Amicus specifically asked James what was the best method of communication between James and Mary. (RR8_124:6-8) James stated he was at a - 21 - loss what to do. (RR8_125:1-8) James stated further without court intervention, the conflict would continue. (RR8_87:14-21) Mary argues it was abuse of discretion for the court to provide James has the right to consent to medical, dental, and surgical procedures on behalf of the children with the option to consult with Mary. James is still required to consult with Mary prior to consenting to medical procedures just like the 2010 Order, but the 2013 Order requires the consultation go through “OurFamilyWizard.” The trial court specifically addressed Mary’s concerns regarding the children’s medical information by requiring James to post the information on OurFamilyWizard. (RR9_7:5-10:2) Even if the Court finds the requirement of consultation through “OurFamilyWizard” is a modification, the issue was tried by consent and neither party is appealing this method of consultation. Ie. Changing Beginning and Ending Times of Mary’s Week-end Visitation Did Not Modify the 2010 Order and If It Did, The Issue Was Tried By Consent Tex. Fam. Code 2010 Order 2013 Order 13 §153.312 Mary’s weekend periods of Mary’s weekend periods possession during the school of possession during the term ended at the time school school term end at 6:00 resumes after the weekend. p.m. on Sunday. - 22 - 14 §153.312 Mary’s weekend periods of Mary’s weekend periods possession that do not occur of possession that do not during school term end at 8:00 occur during the school a.m. on the following Monday term end at 6:00 p.m. on 1SCR_13 Sunday CR_37 Since the 2010 modification order, the children’s well-being suffered when the children were at Mary’s house on a school night. The Court found in its Finding of Fact 5 the conduct of Mary had negatively affected the children and continuation of Mary’s mid-week possession would harm the children.24 The issue of Mary’s weekend possession schedule was tried before the Court. (RR8_125:9-126:11) The children do not have peace at Mary’s house. The children’s homework was not completed when Mary returned the children to school after her weekends. (RR4_36:18-24) The children came to James’ house upset, complaining, even crying after Mary’s possession of the children. (RR4_57:21-58:17) Mary referred to JK1 as simple and simple minded (RR6_19:3-14). JK2 was missing school, exhausted, stressed out, and fatigued. (RR6_26:7-12) JK4 requires structure and stability and became upset and started crying after Mary told him (i) he is autistic (RR8_11:21-22) and he should be a plumber (RR8_23:11); and (ii) witnessed his older siblings being thrown out of Mary’s house. (RR8_12:2-20) (RR8_13:2-11) 24 Brief of Appellant Appendix 7 - 23 - With respect to the Sunday return time of the children, the Court did not significantly lessen Mary’s possession time but basically switched the pick-up and delivery time. The Court adjusted Mary’s pickup and return time from Fridays at 6:00 p.m. until the children returned to school on the following Monday to Fridays when the children are dismissed from school until 6:00 p.m. on Sunday. This change was implemented so Mary could begin her weekend possession with the children earlier and the children could settle down, relax, and have some peace on school nights. Appellee agrees a trial courts’ judgment must conform to the pleadings; however, if issues are not raised by the pleadings and are tried by express or implied consent of the parties, these issues will be treated as if they had been raised by the pleadings. Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.--Houston [14th Dist.] 2013). To determine whether the issue was tried by consent, the Court must examine the record not for evidence of the issue, but rather for evidence of trial of the issue. Greene v. Young, 174 S.W.3d 291 (Tex. App.--Houston [1st Dist.] 2005). With respect to the pickup and return time of the children, Appellee does not believe the Court modified the 2010 Order but merely adjusted the times for the benefit of the children. Assuming arguendo this Court finds there was a modification, Appellee would argue the parties tried the issue by consent. - 24 - 1.1c. Removal of Mid-Week Visitation Tex. Fam. Code 2010 Order25 2013 Order26 12 §153.312 Mary had right to possession of Mary no longer has the children from 5:00 p.m. Wednesday period of until 8:00 p.m. every possession Wednesday With respect to the removal of Mary’s three-hour mid-week possession, Mary testified James didn’t think the children should have mid-week visitation with Mary. (RR5_28:16-18) Although there is some evidence the parties argued over whether Mary should have overnight mid-week possession of the children, Appellee concedes after a thorough search of the record, Appellee cannot point this Court to a reference wherein the parties specifically tried Mary’s three-hour mid- week possession other than Mary’s testimony. II. Response to Brief of Appellant’s Issue No. II: The trial court did not abuse its discretion when it ordered Mary to pay $50,000.00 in attorney fees and if it was error, it was invited error. At the conclusion of the trial, the trial court ordered Mary to pay $50,000.00 in attorney fees and costs. 25 Brief of Appellant Appendix 3 26 Brief of Appellant Appendix 2 - 25 - The trial court filed its Findings of Fact and Conclusions of Law on March 27, 2014.27 The Court found counsel for James requested and proved attorney fees and expenses in the amount of $108,811.93 and $50,000.00 were reasonable and necessary and in the best interest of the children. Conclusion of Law 15 granted judgment in the amount of $50,000.00 in attorney fees against Mary and in favor of James’ counsel. On October 10, 2014, counsel for Mary represented to the Court she had not received notice the Court issued its Findings of Fact and Conclusions of Law. (RR0_5:15-17) Based upon counsel’s representation, the parties agreed to extend the deadline for counsel for Mary to submit her requested additional findings. (RR0_4:21-5:14) On October 30, 2014, the Court entered its Additional Findings of Fact and Conclusions of Law28 which were requested by Mary. Conclusion of Law 9 provides counsel for James: “… is granted judgment for reasonable and necessary attorney’s fees, expenses and costs in the amount of $50,000.00 pursuant to Tex. Fam. Code §106.002 and Tex. Fam. Code §156.005.” The doctrine of invited error provides that a party cannot complain on appeal about an action or ruling which she requested the trial court to do or make. 27 Brief of Appellant Appendix 7 28 Brief of Appellant Appendix 8 - 26 - Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861 (Tex. 2005). Mary is complaining about a ruling, which she specifically requested. Mary cannot claim the Court granted judgment against her pursuant to Tex. Fam. Code §106.002 and Tex. Fam. Code §156.005 when she herself requested the ruling. Likewise, Mary cannot complain the $50,000.00 in attorney fees are not reasonable and necessary when she herself requested the specific ruling. IIa. Response to Brief of Appellant’s Issue No. 11a: The trial court did not abuse its discretion when it ordered Mary to pay $50,000.00 in attorney fees. and IIc. Response to Brief of Appellant’s Issue No. IIc: The evidence is legally and factually sufficient to support the court’s finding that $50,000 is a reasonable amount in attorney’s fees. At the conclusion of the trial, the court awarded James attorney fees in the amount of $50,000.00 pursuant to Tex. Fam. Code §106.002 and §156.005 which the court found to be reasonable and necessary. 29 30 Texas Family Code §106.002 and §156.005 allow for the award of attorney’s fees. The trial court has discretion to render judgment for attorney’s fees and costs in any suit affecting the parent-child relationship. Farish v. Farish, 921 S.W.2d 538, 546-47 (Tex. App.--Beaumont 1996, no writ); Wolters v. White, 29 Brief of Appellant Appendix 7 (Findings of Fact and Conclusions of Law) 30 Brief of Appellant Appendix 8 (Additional Findings of Fact and Conclusions of Law) - 27 - 659 S.W.2d 885, 887-88 (Tex. App.—San Antonio 1983, writ dism’d); In the Interest of Pecht, 874 S.W.2d 797, 803 (Tex. App.--Texarkana 1994, no writ). Generally, unless the complaining party can demonstrate a clear abuse of discretion, orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal. Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990); In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). A court abuses its discretion when it acts arbitrarily, unreasonably, or without regard to guiding rules or principles. McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.) In determining whether an abuse of discretion has occurred, the appellate court views the evidence in a light most favorable to the trial court’s decision and indulge every legal presumption in favor of its judgment. Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). When a court fails to analyze or apply the law correctly, it abuses its discretion. Walker v. Packer, 827 S.W.2d, 833 (Tex. 1992). An allegation of legal or factual insufficiency is not treated as an independent ground of error in this context because the appropriate standard of review is abuse of discretion. In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.). An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Bailey v. Rodriguez, 351 S.W.3d 424, 426 (Tex. - 28 - App.--El Paso 2011) citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978). In making its decision, the appellate court may not substitute its judgment for that of the trial court unless the trial court’s decision was so arbitrary it exceeded the bounds of reasonableness. Mattox v. Jackson, 336 S.W.3d 759, 762 (Tex. App.-- Houston [1st Dist.] 2011). Abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Holley v. Holley, 864 S.W.2d 703 (Tex. App.--Houston [1st Dist.] 1993, writ denied). Counsel for James testified he had been licensed to practice law in Texas since 1984 and has been Board Certified in Family Law since 2000. He further testified he charges at the rate of $350.00 per hour, said fee being customary in Harris County for attorneys with his experience but may be on the low side, that it was necessary for James to hire him, he began representing James in this case in 2011, and this case required an inordinate amount of time because of all the frivolous motions filed by Mary. (RR8_33:23-35:20) (RR8_35:24-36:9-14) His attorney fee records were offered, proved, and admitted into evidence as R-60 without objection. (RR10_3-27) (RR11_3-27) (RR12_3-29) Lastly, he testified Mary filed over 57 motions (RR13_3-5) which he offered, proved and admitted into evidence as R-9031. (RR13_R-90) Mary cross-examined counsel for James at 31 Appellee’s Brief Appendix 13 - 29 - length but did not question the hourly rate, whether the work was performed, or the reasonableness of the fees despite having the opportunity to do so. The reasonableness and necessity of the fees is a fact question. Diamond v. Soucie, 239 S.W.3d 428, 431 (Tex. App.—Dallas 2007, no pet.). Factors to guide a trial court in determining whether the fees are reasonable and necessary include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal services properly; (2) the likelihood the acceptance of the particular employment will preclude other employment; (3) the customary fees charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship; (7) the experience, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); Diamond, 239 S.W.3d at 431. The court need not receive evidence on each of these factors, but may look at the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. In re A.B.P., 291 S.W. 3d 91, 98 (Tex. App.—Dallas 2009, no pet.) Clear, direct, uncontroverted evidence of fees will be - 30 - taken as true as a matter of law when such evidence is reasonable and credible and where the opposing party had the means and opportunity to disprove the testimony but failed to do so. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547-48 (Tex. 2009) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)). Judges can draw on their common knowledge and experience as lawyers and as judges in considering the testimony, the record, and the amount in controversy in determining attorney’s fees. McMahon v Zimmerman, 433 S.W.3d 680 (Tex. App.—Houston [1st Dist.] 2014) (citing Protect Envtl. Servs. v. Norco Corp., 403 S.W.3d 532, 543 (Tex. App.—El Paso, 2013, pet denied) see also In re Guardianship of Hanker, 2013 Tex. App. LEXIS 7705 (Tex. App.--Houston 1st Dist. June 25, 2013), no pet.) (holding that trial judge may “draw on her knowledge of the case, review of the court file, and her experience in other … proceedings in determining whether a requested fee is reasonable”). Trial courts are considered experts on the reasonableness of attorney’s fees. McMahon at 693 (citing Primrose Operating Co. v. Nat’l Am. Ins. Co., 382 F.3d 546, 562 (5th Cir. 2004) (holding that trial courts are experts on reasonableness of attorney’s fees; In re TMT Trailer Ferry, Inc., 577 F.2d 1296, 1304 (5th Cir. 1978). The trial court did not abuse its discretion when it awarded James attorney fees pursuant to Tex. Fam. Code §106.002 and §156.005. Likewise, the trial court - 31 - did not abuse its discretion when it found the sum of $50,000.00 was a reasonable and necessary attorney fee in this matter. IIb. Response to Brief of Appellant’s Issue No. IIb: The evidence is legally and factually sufficient to support a finding that Mary’s suit was frivolous or designed to harass James. At the conclusion of the trial, the court found the modification suit filed by Mary was frivolous and designed to harass James. The conflict between James and Mary has been going on for nine and a half years and without court intervention, the conflict will continue. (RR8_87:14-21) Since the 2010 modification, Mary has been attempting to drain James’ resources through endless litigation and ultimately force James to relinquish custody. Even if Mary could establish her suit was not frivolous, it does not foreclose the possibility the suit was designed to harass James. The trial court found there was overwhelming evidence Mary had been an obstructionist regarding the welfare of the children since the prior modification proceeding.32 (RR8_136:21-137:5) Mary or her boyfriend filed numerous complaints against the children’s medical providers, filed complaints with CPS and the police against James, interfered with the children’s educational decisions, and embarked on a general campaign to harass James.33 As further proof of Mary’s 32 Brief of Appellant Appendix 7 (Finding of Fact and Conclusion of Law –Finding of Fact 4) 33 See Appellee’s Statement of Facts - 32 - continual harassment of James, three days after James told Mary he was thinking about changing one of the children’s schools, Mary filed her Motion to Modify. (RR7_32:10-22) The Court’s award of attorney fees pursuant to Tex. Fam. Code §156.005 is not a sanction and the Court need not provide specifics to justify the finding Mary’s modification suit was frivolous or for the purpose of harassing James. Additionally, Mary fails to make any argument or cite any authority in her brief requiring the Court to file specific findings supporting its finding her suit was filed frivolously and for the purpose of harassment of James. Therefore, Mary has waived this issue on appeal. TEX. R. App. P. 38.1(h): Sterling v. Alexander, 99 S.W.3d 793, 798-99 (Tex. App.--Houston [14th Dist.] 2003, pet. denied). Mary fails to take responsibility for her past actions. History suggests Mary’s motion to modify was consistent with an overall pattern of harassing behavior directed at prolonging litigation and draining James’ resources. The trial court had the opportunity to view the witnesses and hear all the evidence before making its determination. Mary is now asking this court to substitute its opinion for that of the trial court. The evidence is legally and factually sufficient to sustain the court’s finding Mary’s suit was filed frivolously and for the purposes of harassing James. - 33 - IId. Response to Brief of Appellant’s Issue No. IId: The trial court’s alleged errors regarding the fourteen modifications did not affect the attorney fees determination. At the conclusion of the trial, after hearing the testimony and reviewing the billing records of counsel for James, the trial court awarded James the sum of $50,000.00 as reasonable and necessary attorney fees.34 Mary argues paralegal and legal assistant’s billings were included in the total attorney fee request. Mary argues counsel for James failed to offer testimony regarding his paralegal and legal assistant’s qualifications and, therefore, said amounts should be reduced from the total fee award. Mary admits if the total amount of legal assistant and paralegal fees were subtracted from the total amount requested, James’s attorney fees would total $78,062.93 35. Since the trial court only awarded James $50,000.00 in attorney fees, this issue is without merit. Lastly, Mary argues the attorney fee award is presumably based on the fourteen modifications, which Mary is appealing. There is no evidence in the record to support Mary’s presumption. Mary fails to consider the majority of the trial was centered on her change of custody request to become the primary conservator of the children. Mary’s change of custody request affected all fourteen points, which she is now complaining of as well as many others. The Court denied Mary’s request to change custody and many of the other additional modifications 34 Brief of Appellant Appendix 7 and 8 35 Brief of Appellant Page 40 - 34 - she was requesting. 36 The court became so disillusioned with Mary’s behavior, it found Mary to be an obstructionist and that her suit was filed frivolously and for the purpose of harassment of James. Mary argues the court granted the majority of her requested modifications so James’ attorney fees should be reduced. Mary fails to remember the following: (i) The court denied her change of custody request; (ii) JK4 had been in counseling with Dr. Brandon six months prior to the court entering its order for counseling37; (iii) James agreed to relieve Mary of her secondary health insurance obligation so long as she reimbursed him for the cost of the insurance premium prior to Mary seeking a court order38; and (iv) James has no intention of taking the children to the Middle East. No matter how Mary spins it, the overriding requested modification is Mary’s request to change custody, which James successfully defended. It was within the court’s discretion to grant James attorney fees and it was not an abuse of discretion for the court to find $50,000.00 in attorney fees as reasonable and necessary for James to defend this case. 36 Brief of Appellant 37 Appellee’s Reply Brief Appendix 9 38 Appellee’s Reply Brief Appendix 10, 12 - 35 - III. There is no requirement attorney fees awarded under Tex. Fam. Code §156.005 be reasonable. Tex. Fam. Code §106.002 39 provides a court may render a judgment for reasonable attorney fees and expenses under Title 5 of the Family Code. Tex. Fam. Code §156.00540 provides the court may assess attorney fees as costs if the court finds a modification suit was filed frivolously or designed to harass a party. The legislature, when drafting Tex. Fam. Code §156.005, could have put in a reasonable requirement for attorney fees, but did not. Appellee has researched this issue and is unable to point this court to any cases wherein the reasonableness of attorney fees under Tex. Fam. Code §156.005 was specifically appealed. Appellee argues if the trial court finds a modification suit was filed frivolously or for the purpose of harassment and if (i) it is within the discretion of the trial court to award attorney fees under Tex. Fam. Code §156.005; and if (ii) there is competent testimony regarding the total amount of the attorney fees; and if (iii) there is no requirement for proof of reasonableness, a trial court’s award of attorney fees pursuant to Tex. Fam. Code §156.005 cannot be disturbed as an abuse of discretion based on reasonableness of the fee award. 39 Brief of Appellant Appendix 1 40 Brief of Appellant Appendix 2 - 36 - Conclusion and Prayer For all the foregoing reasons, Jamil “James” Kantara respectfully requests this court to overrule Appellant’s issues and affirm the trial court’s judgment. Respectfully submitted, Wilfried P. Schmitz & Associates, P.C. /s/ Wilfried Schmitz BY: _________________________ Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Phone: (281) 486-5066 Email: Court_Documents@schmitzlaw.com Attorney for Jamil “James” Kantara - 37 - Certificate of Compliance Pursuant to TRAP 9.4(i)(3), I hereby certify that this brief contains 7,392 words as determined by the word processor function excluding exempted items as listed under TRAP 9.4 (i)(1). /s/ Wilfried Schmitz BY: _________________________ Wilfried P. Schmitz Texas Bar No. 17778700 17040 El Camino Real, Suite 400 Houston, Texas 77058 Phone: (281) 486-5066 Court_Documents@schmitzlaw.com Attorney for Jamil “James” Kantara - 38 - Certificate of Service This is to certify that a true and correct copy of the foregoing Appellee’s Brief has this 13th day of March, 2015, been sent pursuant to T.R.A.P. 9.5 (b)(1) by electronic mail, to the following: Ashley Tomlinson 1800 Saint James Place, Suite 620 Houston, TX 77056 atomlinson@dalefamilylaw.com Douglas York 3355 W. Alabama, Suite 100 Houston, Texas 77098 york@douglasyork.com /s/ Wilfried Schmitz Wilfried P. Schmitz - 39 - APPENDIX 9 ,. NO. 2011-46281 ~ ~ IN THE INTEREST OF § IN THE DISTRICT COURT Gil § § § BARRIS COT.JNTY TEXAS § § § § 311TB JUDICIAL DISTRitp' I LED Chris Daniel Dlatrlct Clerk ORDER FOR COUNSELING APR 0 I 2013 1'1me: Hllltla eountJ.llliBI The Court finds this case is brought under Title V ofthe Texas FatllijJ.,Ccde 'R!t~ Comt further finds it has authority under T.R.C.P. 204.4 on its own initiative to appoint a psychologist or couoselor to make any and all appropriate mental e¥aminations and/or treatment of and - - - · ~er collectiveiyreferred to as "the children."). IT IS ORDERED Iamil "lames'' Kantara is ORDERED to schedule appointments fur the children~ a licensed psycho1ogist or counselor. IT IS FURTHER ORDERED the psychologist or coUDSelor selected by Iamil "James" Kantara is authorized to interview, examine and eva4Jate and treat the cbi1dren as the psychologist or counselor determines in her/his medical opitrion is reasonable and necessary. The psychologist or counselor selected by Jamil "James" Kantara shall be a preferred provider under the parties' current heahh plan covering the children. Each party is ORDERED to pay oru> half (1/2) oftbe psychologist or counselor's fees not covered by insurance within &~ .30 days ofpresentmmt of the bill by the psychologist or oounselor to that party. IT IS ORDERED Jamil "James" Kantara and Mary Lynn Kantara Gerke shall cooperate with the psychologist or counselor and neither party shall harass, annoy, or intimidate the psychologist or counselor orally or in writing. IT IS FURTHER ORDERED each party shall transport the children to their scheduled appointments during their periods ofpossession Unless otherwise directed by the psychologist or coUDSelor. IT IS ORDERED the psychologist or couoselor shan not testify fur either party in this matter and the records of the psychologist or counselor are protected :ftom discovery 10 and/or disclosure pummnt to T.R.E. 510{b)(1)(2) unless otherwise ordered by this Court. IT IS ORDERED neither party may communicate with, question, ta1k to, inquire about,. or discuss any mattm or issues with the children regarding cotiuseling sessions other than times of appointments. IT IS ORDERED neither party may coJJDTI1Jilicate with, question, ta1k to, inquire about, or discuss any matters or issues with the psychologist or counselor except fur ~uting appointments and payment of fees unless both parties are present, ~.1£17 --riTE ca.N1"'££Qr.(' ;::r:-~~J' ~H ;:r-M'f"F~I0."£7d U~ ~ SIGNEDon ~ q ,2013. /, j 11 • AGREED TO AS TO FORM: Wilftied P. Schmitz & Associates, P.C. By:._~lJ~.l~~~c.A__---:---~­ Wilfiied P. Schmitz State Bar No. 17778700 17040 El Camino Rea], Suite 400 Houston, Texas 77058 Phone: (281} 486-5066 Fax: (281} 486-2041 Attorney mr Jamil "James" Jesus Kantara By: 'P...£Kw~ Muy L~KantaraGeiPiose 707 Almond Pointe League City, Texas 77573 Phone: (281}332-8858 Fax: (281) 290-0004 Law Offices o Douglas Ray Yolk, P.C. ar No. 24028243 . Alabama, Suite 100 Ho Texas 77098 Phone: (713) 479-5555 Fax: (713) 586-5585 Amicus Attorney 12 APPENDIX 10 NO. 2011-46281 IN THE INTEREST OF § IN THE DISTRICT COURT . § § § HARRIS COUNTY TEXAS § § § CHILDREN § lllTH JUDICIAL.DISTRICT JAMIL "JAMES" KANTARA'S RESPONSE TO MARY LYNN KANTARA GERKE'S MOTION FOR RELIEF FROM THE ORDER TO CARRY SECONDARY INSURANCE AND FOR THE COURT TO SELECf A PREFERRED PROVIDER AND ORDER TO COUNSELING AND REQUEST FORATI'ORNEY FEES COMES NOW Jamil "James" Kantara. (h~eina.fter "James") and files his Response to Mary Lynn Kantara Gerke ·s Motion for Relief From the Order to Carry Secondary lruuranpe and for the Court to Select a Preferred Provider and Order to Counseling and Request for Attorney Fees and would show the Court the fullowing: 1. Mary Lynn Kantara Gerke (hereinafter ·•'Mary") states in her Motion she was asked by this Court to research psychologists· with experience in autism who are preferred providers on James' insurance plan. Mary states James bas refused to consider other equally qualified health providers who are preferred providers on his insurance plan. James carefully reviewed the list provided by Mary. Some of the providers did not specialize :iri autism and others were not acceptable after review by James. 2. Mary agrees in her Motion Dr. Michael Brandon is a good doctor but does not _take their :b.eahh insurance. She states inlier November 13, 2012 email to James Dr. Brandon seems qualified, appears co~ent, and it is too late to change for sake. {See Exhibit "A"). has now been seeing Dr. Brandon for over six -months and · and ·Dr. Brandon have developed a strong and trusting relationship. It is in W best interest fur to continue counseling with Dr. Michael Brandon. The parties have been paying Dr. BrandQn $75.00 per office visit and sharing that expense equally. Dr. Brandon has further· offered to ·reduce his rate to $60.00 per session. From a financial standpoint, the yearly cost 15 between . using Dr. Brandon versus using a preferred provider, after paying the $650.00 deductible, ~ almost equal (See Exhibit ..B"). 3. Mary has requested the Court fur relief :from carrying secondary heahh :insurance for the children. She states: ''Ms. Kantara Gerke bas tried to secure agreement through a Rule. 11 agreement, however Mr. Kantara has refused to sign the agreement necessitating a ~-" The truth of the matter is Jaines sent Mary a Rule 11 Agreement agreeing to release Mary ft-om her obligation to maintain health insurance fur the. children provided she would reimburse James $191.27 per month to cover the cost of the children's health insurance. (See Exhibit "C"). To date. Mary has not responded. 4. For the above reasons, James prays the Court, after hearing arguments of counsel: (i) Deny Mary Lynn Kantara Gerke's Motion for Relieffrom the Order to Carry Secondary Insurance or, in the alternative, order Mary L}'Ilil Kantara Gerke to reimburse Jamil "James" Kantara the cost of the children's heahh insurance in the amount of$191.27 per month beginnlng May 10, 2013; (ii) Deny Mary Lynn Kantara Gerke's. Motion for the Court to Select a · Preferred Provider and Order 0 - to CoU17Seling; and (iii) Award James Kantara his· reasonable attorney fees. Respectfully submitted, WILFRIED P. SCHMITZ &ASSOCIATES, P.C. By: ltJ e. 5e4 .. Wilfiied P. Schmitz State Bar No. 17778700 r 17040 El Camino Real, Suite 400 Houston, Texas 77058 Telephone: (281) 486-5066 Fax: (281) 486-2041 Attorney for Jamil Kantara -2-. 16 Certificate ofServiee this is to certify a true and correct copy of the furegoing ·Jamil "James, Kantara ·s Response to Mary Lynn Kantara Gerke's Motion for Relief From the Order to Carry Secondary Insurance and for the Court to Select a Preferred Provider. and Order to Counseling · and Request for Attorney Fees was forwarded to all parties and/or counsel of record on this q-14- day of May, 2013, via facsimile pursuant to T.R.C.P. 21(a). hand delivery and/or certified mail, retmn receipt requested to the fOllowing: Mary Gerke, Pro Se 707 Almond Pointe LeagUe City, Texas 77573 Fax: (281) 290-0004 Mr. Douglas York Law Offices ofDouglas Ray York, P.C. 3355 W. Alabama, Suite 100 Houston, Texas 77098 Fax: (713) 586-5585. Amicus Attorney WJJ:fried. P. Schmitz . -3- 17 James From: Mary Lynn· Kantara [marykantara@gmail.com] Sent Tuesday, November13, 201211:42AM . · To: jameskantara@comcast.net; james.kantara@lmco.com Subject: RE: Counseling for••IL or. Brandon seems qualified and appears competent. I think it is too late to change for ._. . . . . .~sake as you have already taken him for session. My concern is that once again~ you did not Tollow the Court orders prior to putting all this in place. -----Original Message----- From: James Kantara [mailto:jameskantara@comcast.net] Sent: Monday, November 12, 2012 2:54 PM To: Mary Kantara Gerke; Mary Kantara Gerke; Mary Kantara Gerke; Mary Kantara Gerke cc: James Kantara Subject: Re: Counseling ~or ....... Do you object iT Dr. Brandon is best ~or tlllll• but not part ~ Aetna and/or American National's network? From: Mary Kantara Gerke To: James Kantara To: James Kantara Sent: Nov 12, 2912 9:45 AM Subject: RE: Psychiatrist for • • • • I haven,t met with Dr. Brandon yet. I'll let you know. I understand you are taking . . . . . .~ ~or an appointment with Dr. Brandon today. Is Dr. Brandon a pre~erred provider on·the insurance? From: James [mailto:JamesKantara@comcast.net]Sent: Monday, November 12, 2812 7:26 AM To: "Mary Kantara'; 'mary_kantara@hotmail.com' j 'mary.kantara@gmail.com'Cc: 'James' Subject: RE: Psychiatrist for •••1 Dr. Brandon wants to meet today. His availability is at 5:15pm today at his Friendswood,s office. I,d like to take so they can visit. From: James [mailto:JamesKantara@comcast.net]Sent: Sunday, November 11, 2912 2:48 PM To: 'Mary Kantara'; mary_kantara@hotmail..com; mary.kantara@gmail.comCc: 'James· · Subject.: RE: · Psychiatrist for • • • What is your input and/or opinion about Dr. Brandon? 1 Exhibit "A" 18 From: James [mailto:JamesKantara@comcast.net]Sent: Wednesday~ November 97-, 2912 6:35 PM To: 'Mary Kantara'; 'mary_kantara@hotmail.com'; 'mary.kantara@gmail.com'Cc: 'James' Subject: RE: Psychiatrist for • • • • This is Dr. Brandon"s contact information: 159 W. Shadowbend Lane, Friendswood, TX 77546. He cim be reached at 409-599-8177 or 281-338-2992. I established contact with him and I recommend you do the same so we can make the decision to get started. Please let me know. James (7rom:. James [mailto:JamesKantara@comcast.net]Sent: Wednesday, November 97, 2912 4:17 AM To: 'Mary Kantara'; 'mary_kantara@hotmail.com'; 'mary.kantara@gmail.com'Cc: 'James Kantara' Subject: RE: Psychiatrist for I tl • Dr. Michael Brandon is an experienced counselor that may be a valuable coun.selor for I .U t What opinion do you have and what information you may have about him and his credentials? Dr. ~randon has an office in Friendswood. Please let me know. James Sent via BlackBerry from T-Mobile 2 19 James From: Mary Lynn Kantara [marykantara@gmail.com] Sent: Wednesday, April24, 2013 8:36AM To: 'James'; 'James Kantara' Subject: RE: Dr. Brandon's hourly fees That's really nice of Dr. Brandon. However, I've done the research like the judge asked me to do and have found quite a few preferred providers in close proximity who have experience with autism, learning differences, anxiety and the like, who are licensed in psychology and some who are also licensed in school psychology. Most of the providers have the same contracted rate which results in a capay amount of less than $12 per visit. I do not have the resources to not maximize the medical benefits for our kids. I have no problem staying with Dr. Brandon, so long as you are agreeable to follow the court order of paying the difference over the preferred provider co pay. For you to continue to pay Mr. Schmitz to oppose every opportunity for compromise is only detrimental to our kids and could easily pay for the very things you are opposing. It just doesn't make any sense and I really don't think it's being lost on the judge or the amicus anymore. The reality is Mr. Schmitz is the only one happy about this litigation, has only encouraged extended conflict and is smiling all the way to the bank with money that could be invested in our kids and their future. That's so sad for our kids. From: James [mailto:JamesKantara@comcast.net] Sent: Tuesday, April23, 2013 9:02PM To: 'Mary Lynn Kantara'; 'mary kantara'; 'mary kantara' Cc: 'James' Subject: Dr. Brandon's hourly fees Mary, Dr. Brandon offered to lower his counseling fees for from $75 to $60 per session. Not to mention that changing counselor for is not in our son's best interest since he has already built a trusting relationship with Dr. Brandon in the last six months of so, our yearly cost for Dr. Brandon's sessions will only be about $1,200 (for an estimated 20 sessions/year * $50/session). From a financial stand point, switching • A I ato an Aetna preferred provider will be subject to the upfront $650 deductible for the first 6 sessions or so before our out-of-pocket co- insurance cost goes into effect. This means that our cost savings for the year will be negligible to non-existent, even likely to end up being more cost effective for us than switching to an Aetna preferred provider. This should greatly help address your financial concerns while keeping Dr. Brandon, the best counselor in the area for James Exbibit "B" 20 APPENDIX 11 Cause No. 2011-46281 .IN THE INTEREST OF § IN THE DIS1RICT COURT OF § § § 311 tb JUDICIAL DISTRICT § § § CHILDREN § HARRIS COUNTY. TEXAS ~.LYNNKANTAIIAG.ERKE'SMOTIONJ10RREI.IEFJIIOMTBEOIIDER TO CARRY SECONDARY INSURANCE AND FOR THE COURT TO SELECT A PREFERRED PROVIDER AND ORDER j TO COUNSELING On June 3, 2013, the Court c:onsidered .Mary Lynn KantQI'a Gerke's Motion for Relieffrom the Order to Carry Secf!ndary Insurance andfor the Court to Select a Prefem!d Provider and Order to Cormseling. After reviewing the Motion and responses and hearing arguments, it is ORDERED: Mary Lynn Kantara. Gerke's Mary Lynn KantOI'a Gerke's Motion/or Relieffrom the Order to Ct117)1 Secondary Insurance is granted in part and denied in part Mary Lynn Kantara Gerke is released from her obligation to maintain seconduy health insurance T\o\c. Cow\ ~\I-ll)~ -l~~ t.on4)-\\~t.!J o.. ~o..\~in" l\k e~~ ••u{ '\~ 1t'\ \-M. after June 30, 2013.'%~~';_ ~~.:!;;, ne,+'; U\'''\r:" t"~:t:Tk\:~~~~!.\"'"'r:~"'~:':O.c~o.rt'\.od h'l Mary Lynn Kantara Gerke is ORD~D to reim~ Jarif:i Karitafa the sum of $76.40 per month for partial reimbursement of the cost of the children's health insurance premimn with the first payment ;.d, ,l,Q\ ~ due~~ ~ c. ~ f r ·f .I. on the S"' day or5"'1i~lle\'li&g canceJhwoa and aassatiea ef El.t~:~&ena for 1iAe ehild:ren's st.etulal'¥~ ~ #• "' r- -heekh inst11'8ftee with Ms.l&ritara Gerlie's s~~apJayep..and a like payment due on tbe 5th day of each monthKJ'~ ~ ~ thereafter until further ordered ofthe Court. ,... "' . lf y::.. (' ~ ft Mary Lynn Kantara Gerke's Motion for the Court to Select a Preferred Provider and Order! ::s s: .. .,~ ft.'... " ~ $It to Counseling is granted in part and denied in part. a"fif - F • • • • •11-shall continue in counseling with Dr. Michael Brandon. The ftequency, dura.tion,'l } ?l r f' and all other specifics of said counseling shall be per the recommendations of Dr. Michael Brandon. Eacht ~~~ i- ;,/~ party is ORDERED to pay :;:::r-~~2) of the fees not covered by insurance within 30 days of presentmentt f~ :-{. ; f' oftbe bill·&;· ;g,. RFIRdeAoto party. ~ r -;j J. t ::;"' ..r~ ~·I"" .,t. fa --~- F. ~ 1 _... !" $:. JUL 0 8 2013 - -·:r'1 ~ SIGNED on -=----------...;20_. c;J"' ~ ) 'u-a.~ ~ i"'~ '} Cl.. ~~~~ Pagel of2 J: ~~ ;:~\t ~~ 2~ . I APPROVED AS TO FORM: f..,{ • £ ~.J:I,AL_ Mary Lynn Kantara Gerke, pro se 707 Almond Pointe League City, TX 77573 Tel: (281) 332-8858 Fax: (281) 290-0004 Mr. Wilfred Schmitz, Attorney for Jamil K.anta.ra State Bar No. 17718700 17040 El Camino Real, Suite 400 Houston. Texas 77058 Phone: 281 6-5066 Fax: 8 - l Mr. ork, Amicus Attorney State Bar. o. 24028243 33S5 W labama, Suite J00 Hous , TX 71098-1863 Phone 713-479-SSSS Fax 713-586-5585 Page2 of2 28 APPENDIX 12 VviLFRIED P. SCHMITZ&:ASSOCIATES, P.C. ATrOBNEYS.ATLA.W 17040 :EL c~o BEAL. SUlTE 400 · ·. HOUSTON. TEXAS 770.SS Telephone {281) 486-5066 Facsimile {281) 480-2041 e-mail wilfried@Schmitzlaw.com Aprilll, 2013 Ms. Mary Gerke Via Fax 707 Almond Pointe League City, Texas 77573 RE: Cause No. 2011-46281; In the lntel'est of 11 •w • District Court ofHarris County, Texas. Dear Ms. Gerke: I am in receipt of your proposed Rule 11 Agreement. My client is agreeable to releasing you · from yo:o;r obligation of maintaining secondary health :insurance.on the children if you are willing to r_eimbmse Mr. Kantara $191.27 per month tor the cost ofheillth insurance for the children on his insurance pbm as shown on the attached.. If yOu are ·agreeable, please sign the attached Rule 11 Agreement. Sincerely, · w. f.· :5U.:.r;: Wilfiled P. Schmitz · ·WPS:me EncJosures cc: Mr. DoUglas York_ Exhibit "C" ·. Lockheed Martin Partidpant Partidpant + Extra Coverage Cost for children HealthWorks Medical . only (James) Children Coverage during 2013 Weekly Cost Monthly CoSt Health Coverage $ 31.29 $ 67.58 $ 36.29 $ 157.26 Dental $ 7.10 $ 14.20 $ 7.10 $ 30.77 VISion $ 0.68 $ 1.43 $ 0.75 $ 3.25 Total $ 39.07 $ 83.21 $ 44.14 $ 191.27 22 APPENDIX 13 Motions Filed by Mary Gerke 2011-11-10 Motion to Confer 2011-12-05 Mary's Motion for Temporary Orders 2011-12-15 Mary's Motion to Dismiss Motion to Compel 2011-12-21 Mary's Motion to Quash Mary Gerke's Deposition 2011-12-27 Mary's Motion to Compel Financial Information 2011-12-27 Mary's Motion to Compel RFD 2011-12-28 Mary's Motion for Children to Testify 2012-01-17 Mary's Motion to Quash Amended Deposition on Written Questions for Employment Records 2012-01-18 Mary's Emergency Motion for Court Ordered Counseling 2012-01-23 Mary's Motion for Contempt on Financial Disclosure 2012-01-24 Mary's Motion to Extend Discovery and Continuance 2012-01-31 Mary's Motion to Compel Discovery 2012-02-13 Mary's Motion on Apportionment of Amicus Fees 2012-02-14 Mary's Motion for Temporary Orders 2012-02-19 Mary's Motion to Compel HIPPA Compliance 2012-02-29 Mary's Amended Motion to Compel Discovery 2012-04-09 Mary's Motion for Protective Order for Gerber 2012.04-09 Gerber's Motion for Protective Order 2012-04-09 Mary's Motion for Protective Order on Letter Rogatory 2012-04-12 Mary's Motion to Compel Date for Harrison to Complete Exam 2012-04-16 Mary's Motion for Appropriateness of Dr. Kennedy's Fees 2012-04-23 Mary's Motion to Compel Production to Hope Moser 2012-04-25 Mary's Motion to Compel Date Certain for Harrison's Deposition ~ .. EXHIBIT. l J... . /f-1o 2012-04-27 Gerber's Motion to Deny Letter Rogatory 2012-05-02 Gerber's Motion for Special Exception to Motion for Spoliation 2012-QS-02 Mary's Motion for Spoliation of Evidence 2012-05-20 Mary's Motion to Compel Fourth RFP and 2nd Set of Interrogatories 2012-05-22 Mary's Motion to Determine Appropriateness of Hope Moser's Fee 2012-05-22 Mary's Request for Entry Upon James' Property 2012-06-07 Mary's Objection to Filing Business Record of Dr. Harrison 2012-06-12 Mary's Motion to Compel Harrison's Production 2012-06-25 Mary's Emergency Motion to Stay Order 2012-06-27 Mary's Motion for Review of Harrison's Evaluation 2012-Q7-08 Mary's Motion to Exclude Harrison's Report and Testimony 2012-08-05 Mary's Motion to Strike Kassidi Turnpaugh 2012-08-05 Mary's Motion to Strike 2nd and 3nt Amended RFD and Amended Counterpetition 2012-08-Q9 Mary's Motion for James to Pay Amicus Fees 2012-QB-09 Mary's Motion to Determine Scope of Confidentiality 2012-Q8-12 Mary's Motion to Strike Kit Harrison 2012-08-12 Mary's Amended Motion to Pay Amicus Fees 2012-08-14 Mary's Motion for Partial Summary Judgment 2012-Q8-14 Mary's Motion to Send Parties Back to Mediation 2012-08-23 Mary's Motion to Compel Production 2012-08-23 Mary's Amended Motion to Strike Kit Harrison 2012-10-28 Mary's Motion to Determine Arrearage of Medical Payments 2012-11-05 Mary's Motion to Examine Harrison's File 2012-11-10 Mary's Motion to Confer with the Children 2011-11-22 Mary's Motion to Recuse Wilfried P. Schmitz 2012-11-29 Mary's Motion to Compel 2013-01-02 Mary's Emergency Motion to Reset Pre-Trial Conference 2013-Q1-22 Mary's Emergency Motion to Enforce Visitation 2013-01-14 Mary's Motion for Witnesses Testifying Out of Order 2013-01-14 Mary's Motion to Strike Dr. Kennedy 2013-01-14 Mary's Motion to Strike Kit Harrison 2013-01-14 Mary's Motion to Strike Joanne Therese 2013-01-14 Mary's Motion to Strike Sherrie Me.ister 2013-02-13 Mary's Motion on Apportionment of Amicus Fees 2013-05-14 Mary's Motion for Sanctions 2013-05-28 Mary's Motion Prohibiting Homeschooling 2013-05-28 Mary's Amended Motion for Relief from the Order to Carry Secondary Insurance