ACCEPTED
03-14-00117-CV
6459633
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/12/2015 11:05:42 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00117-CV
NASH JESUS GONZALES and § FILED IN
IN THE COURT OF APPEALS
3rd COURT OF APPEALS
GONZALES & GONZALES, P.C., § AUSTIN, TEXAS
Appellants § 8/12/2015 11:05:42 AM
V. § THIRD JEFFREY D. KYLE
JUDICIAL DISTRICT
Clerk
§
MARISSA ANN GONZALES §
Appellee § AUSTIN, TEXAS
APPELLEE MARISSA ANN GONZALES’ REPLY TO APPELLANTS’
RESPONSE TO MOTION TO DISMISS
TO THE HONORABLE COURT:
COMES NOW Appellee Marissa Ann Gonzales, and files her Reply to
Appellants’ Response to Appellee’s Motion to Dismiss and respectfully shows the
Court as follows:
In the trial court Nash sought a residency restriction limiting the residency of
the children to Travis County. Nash complains in this appeal that the residency
restriction should have been limited to Travis County or New York (but in any
event not to the State of Texas as found by the jury). He claims there was no
evidence supporting a restriction to the State of Texas. If Nash’s appeal is
successful, on remand a jury would consider a residency restriction of Travis
County or New York.
Simultaneously, Nash seeks an order from the Collin County District Court
restricting the children’s residency to Collin County, where the parties all currently
Page 1
live. Collin County is not Travis County and is not New York. The conflict
created by Nash’s SAPCR suit filed while this appeal is pending is that simple.
Nash argues in his response that Marissa has ignored other issues in the
appeal. To the contrary, Marissa clearly states in her motion that there is no longer
a controversy in the Court of Appeals “with regard to the geographic restriction of
the children and such issue should be dismissed as moot.” Marissa also states the
contradictory relief sought by Nash “divests this Court of jurisdiction over that
issue.” Marissa is only asking the Court of Appeals to consider Nash’s waiver and
contradictory position with regard to the geographic restriction because it is the
only geographic restriction that Nash seeks to alter in the Collin County SAPCR
suit.
Nash also argues that Marissa misunderstands the relief requested in this
Court as a rendition of judgment. The Motion to Dismiss does not mention or
even contemplate a rendition of judgment. In any event, that is not the relevant
analysis to the jurisdictional issues before this Court. The relevant analysis is
Nash’s affirmative request for relief in the district court that moots any relief that
would otherwise come from this Court. The relevant analysis is also the focus on
the contradictory outcomes of the ultimate relief sought by Nash- which is a
geographic restriction to Travis County on the one hand and Collin County on the
other. He asks for both and both are not possible.
Page 2
Nash argues his request for the Collin County restriction compliments his
request for the Travis County restriction. If anything, a restriction in Collin
County compliments the jury’s finding that the restriction should be limited to the
State of Texas, but at a minimum it highlights the conflict created by his SAPCR
suit. If Nash is successful in this appeal and the case is remanded, the end result
will be a judgment limiting the residency restriction to either Travis County or
New York. There is no possibility of a judgment restricting the parties to Collin
County on remand. Contrary to Nash’s statement in his Response, a retrial would
occur in Travis County, where the judgment at issue was rendered, and a jury
would not consider Collin County as an option. Nash’s very point in this appeal is
that the only evidence supporting a geographic restriction in the trial court was for
Travis County or New York. There certainly was not evidence presented to
support Collin County.
Another possibility, not discussed by Nash, is this Court will affirm the
judgment of the trial court (as requested by Appellee) thus establishing the
geographic restriction as the State of Texas. The point is, regardless of this
Court’s decision, an order from the Collin County District Court limiting the
geographic restriction to Collin County clearly contradicts any possible geographic
restriction that could result from this appeal.
Page 3
Nash argues that merely requesting that the geographic restriction be
modified in his SAPCR suit does not divest this Court of jurisdiction. To the
contrary, Nash is essentially asking a district court to modif3r the very order that he
is simultaneously asking this Court to review. Put simply, Nash is attempting to
take two bites at the apple by appealing the order while simultaneously seeking
modification of the same order in a new and separate district court suit. This
necessarily divests this Court ofjurisdiction.
For the reasons discussed above, Appellee Marissa Ann Gonzales
respectfully requests that the Court grant her Motion to Dismiss.
Respectfully submitted,
SAVRICK, SCHUMANN, JOHNSON, MCGARR,
KAMINSKI & SHIRLEY, LLP
tifl
C ilson Shirley III
State Bar No. 00795647
Jessica Marcoux Hall
State Bar No. 24046348
The Overlook at Gaines Ranch
4330 Gaines Ranch Loop, Suite 150
Austin, Texas 78735
512-347-1604 Phone
512-347-1676 Facsimile
Email: wilson@ssj miaw. corn
Email: jessica(ssjmlaw.com
ATTORNEYS FOR APPELLEE
MARISSA ANN GONZALES
Page 4
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Motion for Substitution of
Counsel has been served on the following via the Efile system on this 12
th
day of
August, 2015:
Thomas B. Cowart Via email: tom@tcowart.com
WASOFF & COWART, PLLC
100 North Central Expressway, Suite 901
Richardson, Texas 75080
4es ica Marcoux all
Page 5