Nash Jesus Gonzales and Gonzales & Gonzales, P.C. v. Marissa Ann Maggio

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