ACCEPTED
05-15-00114-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
2/18/2015 11:49:04 AM
LISA MATZ
CLERK
NO. 05-15-00114-CV
___________________________________________________
FILED IN
5th COURT OF APPEALS
In the Court of Appeals for the Fifth District of DALLAS, TEXAS
Texas at Dallas 2/18/2015 11:49:04 AM
_____________________________________________ LISA MATZ
Clerk
IN THE INTEREST OF H.W.G., A CHILD
MICHAEL GIBB,
Appellant,
v.
EMILY STEPHENS
Appellee.
___________________________________________
On Appeal from the
366th Judicial District Court of Collin County, Texas
Cause No. 366-55837-2009
___________________________________________________
APPELLANT’S REPLY BRIEF IN SUPPORT OF MOTION TO
SUSPEND TRIAL COURT’S ORDER PENDING APPEAL
___________________________________________________
TO THE FIFTH DISTRICT COURT OF APPEALS:
Mother really has no substantive response to the motion to suspend
order.
First, Mother does not even attempt to argue that suspending the
order would harm or be unfair either to her or the child. The closest she can
come is a passing, unexplained reference to “an agreement contrary
001
thereto.” But she does not explain what this means. And, as the transcript
excerpts attached to Father’s motion make clear (and Mother does not
dispute), returning her to the previous access is entirely consistent with that
agreement.
Second, Mother does not attempt to dispute her recent history of drug
abuse, her agreement to the strict terms tying unsupervised access to a
period of clean drug tests, her failure to meet those strict terms, or the
possible resulting danger to the child.
All Mother really says is (1) the trial court found Step 4 access to be in
the child’s best interest, and (2) the trial court is scheduled to take this
matter under advisement in March. Neither contention is accurate, and
neither is relevant.
First, the trial court did not, either in its order or in its on-the-record
discussion of that order, state that Step 4 access was in the child’s best
interest. All the trial court mentioned on the record was “continuous serious
conflict” between the parents—a matter having nothing to do with drug
testing and possession under the prior judgment. The order says only that
Mother has satisfied the prerequisites for Step 4 access—something so
002
obviously untrue that not even Mother made that claim in the trial court (or
in her response to this motion).
Second, Mother’s pending request for temporary orders on appeal
concerns matters entirely unrelated to suspension of the order on appeal
(which only makes sense—why in the world would Mother, as Appellee,
seek temporary orders suspending the order on appeal?). The trial court’s
resolution of the request for temporary orders has nothing to do with the
relief sought by this motion.1
Finally, the trial court’s statements during the hearing made clear the
futility of seeking suspension of the order. Rather than waste his money and
the trial court’s time, Father instead sought relief from this Court—as the
Family Code explicitly permits.
The Family Code authorizes relief “on a proper showing.” TEX. FAM.
CODE ANN. § 109.002(b). Mother claims Father did not make a proper
showing. Again, however, she never provides any basis for this argument.
Father made a showing that Mother’s recent drug use poses a risk to the
child, and that suspending the order will not negatively affect Mother or the
child, or deny them time together.
1
Mother attached a copy of the motion to her response. The motion concerns complaints
Mother has about access under the order, and has nothing to do with suspending it
pending appeal.
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In light of Mother’s failure to identify any real reason not to grant
relief, Father asks that this Court err on the side of caution and protect the
child by suspending the order.
Respectfully submitted,
/s/Charles “Chad” Baruch
Texas Bar Number 01864300
THE LAW OFFICE OF CHAD BARUCH
3201 Main Street
Rowlett, Texas 75088
Telephone: (972) 412-7192
Facsimile: (972) 412-4028
Email: baruchesq@aol.com
Counsel for Relator
Certificate of Compliance
This brief was prepared using Microsoft Word for Mac. Relying on the
word count function in that software, I certify that this motion contains 501
words (excluding the case caption, signature block, and certificates).
/s/Charles “Chad” Baruch
004
Certificate of Service
The undersigned counsel of record certifies that a true copy of this
instrument was served in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure on each party or that party’s lead counsel on February
18, 2015, as follows:
Charles C. Phillips
Philips & Epperson, LP
2301 Virginia Parkway
McKinney, Texas 75071
By email to:
rcollins@philipsandepperson.com
/s/Charles “Chad” Baruch
005
in the Interest of H.W.G., a Child
Combined Opinion