ACCEPTED
05-15-00554-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
12/14/2015 3:09:54 PM
LISA MATZ
CLERK
No. 05-15-00554-CV
IN THE
FILED IN
5th COURT OF APPEALS
FIFTH COURT OF APPEALS DALLAS, TEXAS
at Dallas, Texas 12/14/2015 3:09:54 PM
LISA MATZ
–––––––––––––––––––––––––––––––––––– Clerk
IN THE INTEREST OF J.A.C. AND Z.C.C., CHILDREN
––––––––––––––––––––––––––––––––––––
Appealed from Cause No. 416-54259-2014 in the
416th Judicial District Court of Collin County, Texas
________________________________________________________________
APPELLANTS’ REPLY BRIEF
________________________________________________________________
Grady Reiff
State Bar No. 24074941
greiff@fullenweider.com
Randall B. Wilhite
State Bar No. 21476400
rwilhite@fullenweider.com
FULLENWEIDER WILHITE, P.C.
4265 San Felipe, Ste. 1400
Houston, Texas 77027
713.624.4100
713.624.4141 Facsimile
service@fullenweider.com
ATTORNEYS FOR APPELLANTS,
J.A.C. AND Z.C.C.
ORAL ARGUMENT NOT REQUESTED
ABBREVIATIONS
Reporter’s Record .................................................................................................. RR
Clerk’s Record ..................................................................................................... CR 1
Supplemental Clerk’s Record ..................................................................... Supp. CR
All other abbreviations in Appellants’ Reply Brief remain the same as in
their Appellants’ Brief.
1
For clarity’s sake, or lack thereof, there are two Clerk’s Records—each
marked as Volume 1 of 1—and filed on May 26, 2015. However, each Volume 1
of 1 has different filings that compromise all of the Clerk’s Record on appeal.
ii
TABLE OF CONTENTS
Page
ABBREVIATIONS ................................................................................................ ii
TABLE OF CONTENTS ....................................................................................... iii
INDEX OF AUTHORITIES.................................................................................. iv
OBJECTION TO USE OF APPELLEE’S TRIAL EXHIBIT NO. 3 AND
CERTAIN UNSUBSTANTIATED FACTUAL ASSERTIONS IN
APPELLEE’S BRIEF ........................................................................................ 1
APPELLEE’S CONTENTIONS ............................................................................ 4
Claimed Collateral Attack on an Acknowledgment of Paternity ...................... 4
Public Policy ...................................................................................................... 6
PRAYER ................................................................................................................. 7
CERTIFICATE OF COMPLIANCE ...................................................................... 8
CERTIFICATE OF SERVICE ............................................................................... 8
iii
INDEX OF AUTHORITIES
Cases
Page
Columbia Med. Center of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238
(Tex. 2008)............................................................................................................6
State of Texas v. Shumake, 199 S.W.3d 279 (Tex. 2006) .......................................... 6
Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899
(Tex. App.—Dallas 2005, pet. denied) ................................................................. 1
Statutes
Tex. Fam. Code §160.103 ..........................................................................................6
Tex. Fam. Code §160.302 ......................................................................................4, 5
Tex. Fam. Code §160.308 ..................................................................................4, 5, 6
Tex. Fam. Code §160.311 ..........................................................................................5
Tex. Fam. Code §160.602 ......................................................................................6, 7
Tex. Fam. Code §160.637 ......................................................................................6, 7
Rules
Tex. R. App. P. 9.4.....................................................................................................8
Tex. R. Evid. 202 .......................................................................................................5
iv
OBJECTION TO USE OF APPELLEE’S TRIAL EXHIBIT NO. 3 AND
CERTAIN UNSUBSTANTIATED FACTUAL ASSERTIONS IN
APPELLEE’S BRIEF
Appellants object to the use of Appellee’s trial exhibit number 3, Deposition
of Nathan Cramer, in the Reporter’s Record for the April 13 hearing as it was only
offered, and not admitted, into evidence at the hearing. (RR, Exhibit List, p.4).
Neither Appellants, Appellee, nor the trial court referred to the exhibit during the
hearing; agreed its interpretation was an issue for the trial court to determine;
published the exhibit; nor did the trial court reference Mr. Cramer’s deposition in
its findings of fact and conclusions of law. An exhibit that is merely offered but not
admitted may not be considered by the appellate court except in narrow
circumstances, which do not exist here. See, e.g., Travelers Indem. Co. of Rhode
Island v. Starkey, 157 S.W.3d 899, 904 (Tex. App.—Dallas 2005, pet. denied)
(holding that if attorneys for both parties and trial court treated exhibit only offered
into evidence as if it was also admitted, i.e., referred to exhibit, agreed its
interpretation was issue for court to decide, published exhibit for court, lodged no
objections to its reference, and trial court based its findings of fact and conclusions
of law on exhibit, then exhibit is admitted for “all practical purposes”). As such,
Appellee’s exhibit number 3 was not properly before the trial court or this Court,
and Appellants object its use and to the following unsupported factual assertions in
Appellee’s Brief:
Page 1 of 8
1. “CRAMER acknowledged his paternity on the birth certificates.”
Citing RR Ex. 3 at 16:23-17:15. (Appellee’s Brief, p.2).
2. “CRAMER continued as an active father following the second
divorce.” Citing RR Ex. 3 at 26:11-17. (Id., p.5).
3. “CRAMER admitted that BENN’s suit on behalf of J.A.C. and Z.C.C.
to terminate CRAMER’s parental rights and adjudicate MASSEY as
the children’s father was purely based upon financial reasons.” Citing
RR Ex. 3 at 45:6-13, 46:5-9. (Id., p.6).
4. “[A]s well as prior acknowledgements of CRAMER’s paternity by
BENN and CRAMER.” Citing RR Ex. 3 at 16:23-17:15. (Id., p.7).
5. “CRAMER and BENN acknowledged CRAMER as the father of
J.A.C. and Z.C.C. by signing the children’s birth certificates
identifying CRAMER as the father . . . .” Citing RR Ex. 3 at 17:12-15.
(Id., p.18-19).
Appellants further object to the following factual assertions as each is
unsubstantiated by the reporter’s record reference:
1. “CRAMER and BENN acknowledged CRAMER’s paternity of J.A.C.
and Z.C.C. by signing the boys’ birth certificates with CRAMER as the father and
giving the boys CRAMER’s last name in May of 2001. Citing RR Ex. 4 at 16:23-
17:15. (Id., p.7).
Page 2 of 8
2. “The 2008 Georgia divorce decree between BENN and CRAMER
also adjudicated CRAMER’s paternity with respect to J.A.C. and Z.C.C., based on
prior acknowledgements of paternity including the South Carolina agreement and
Decree, and the May 2008 sworn settlement agreement.” Citing RR Exs. 1, 2.
(objection made to emphasized language).
3. “For over thirteen years, from the signing of the birth certificates . . .
.” Citing CR 4. (Id., pp.7-8).
4. “CRAMER was present at the birth of the children, testified that he
believed he signed the birth certificates acknowledging his paternity to J.A.C. and
Z.C.C. . . . .” Citing Supp. CR 6-7; RR 16:23-17:15. (Id., pp.16).
Page 3 of 8
APPELLEE’S CONTENTIONS
Appellee’s Brief, in essence, offers two arguments to support Mr. Massey’s
position.
Claimed Collateral Attack on an Acknowledgment of Paternity. In
Appellee’s Brief, Mr. Massey asserts that at least one acknowledgment of paternity
exists, which prevents J.A.C. and Z.C.C. from maintaining their suit as it
constitutes an impermissible collateral attack against such an acknowledgment
under Section 160.308(c). (Appellee’s Brief, pp. 9-22). To support this claim, Mr.
Massey relies upon the unsubstantiated contention that Mr. Cramer signed
Appellants’ birth certificates and has generally acknowledged his (mistaken)
fatherhood, including in two divorce proceedings, during Appellants’ lives.
Mr. Massey has imposed a mental framing on this case that is not the correct
one. He presumes that so long as Mr. Cramer is shown to have signed any
document acknowledging his paternity, then J.A.C. and Z.C.C. are precluded from
maintaining their case. Mr. Massey’s argument only applies, however, if the
acknowledgement(s) of paternity, which he says are (1) J.A.C. and Z.C.C.’s birth
certificates allegedly signed by Mr. Cramer, (2) a 2008 notarized settlement
agreement, and (3) the South Carolina and Georgia divorce decrees, comport with
the acknowledgment of paternity laws of this or another state. Tex. Fam. Code
§§160.302(a)(1)-(5) (setting forth requirements of an acknowledgement of
Page 4 of 8
paternity under Texas law); §160.311 (“A court of this state shall give full faith
and credit to an acknowledgment of paternity . . . that is effective in another state if
the acknowledgment . . . has been signed and is otherwise compliant with the law
of the other state.”). Neither of the latter documents satisfy the requirements under
Section 160.302(a)(1)-(5).
As for J.A.C. and Z.C.C.’s birth certificates, there is no evidence of them in
record, much less of Mr. Cramer having signed them, but assuming, arguendo,
their signed birth certificates were before the trial court, the trial court did not take
judicial notice of South Carolina law regarding its legal requisites of an
acknowledgment of paternity nor was any evidence provided by Mr. Massey
regarding the same to substantiate his argument the birth certificates constitute, in
legal effect, acknowledgements of paternity under South Carolina law. Id.
§160.311; see Tex. R. Evid. 202 (“Determination of Law of Other States”). The
record is likewise devoid of any evidence that the South Carolina and Georgia
divorce decrees or the 2008 notarized settlement agreement comport with the legal
rules and requirements of acknowledgments of paternity in those states. 2
2
The same is true for all the other factual assertions Mr. Massey makes,
baseless or not, as there is no evidence to support any or all of those assertions
constituting an acknowledgement of paternity under the laws of any state. Tex.
Fam. Code §160.311; see Tex. R. Evid. 202.
Page 5 of 8
As such, the trial court had no basis to conclude that Mr. Cramer has ever
executed an acknowledgement of paternity under Texas, South Carolina, Georgia,
or any other state’s parentage laws and that J.A.C. and Z.C.C. therefore lack
standing to maintain their suit under Section 160.308(c).
Public Policy. Mr. Massey also raises the claim of public policy to preclude
J.A.C. and Z.C.C.’s suit despite the Legislature’s meticulous and comprehensive
design to allow it. (Appellee’s Brief, pp. 22-26). The construction of Sections
160.602(a)(1) and 160.637(b) and the evidence in the record plainly allow J.A.C.
and Z.C.C. to maintain their parentage determination, along with the unambiguous
mandate that:
(a) [C]hapter 160 governs every determination of parentage in this
state.
(b) The court shall apply the law of this state to adjudicate the
parent-child relationship. The applicable law does not depend
on:
(1) the place of the birth of the child; or
(2) the past or present residence of the child.
Tex. Fam. Code §160.103.
Mr. Massey’s argument ignores the plain meaning of the words chosen and
objective of Chapter 160 and violates this Court’s primary objective—to ascertain
and give effect to the Legislature’s intent. E.g., State of Texas v. Shumake, 199
S.W.3d 279, 284 (Tex. 2006). Such an interpretation would correspondingly cause
Page 6 of 8
this Court to interpret Chapter 160 in a manner that renders numerous parts of its
statues “meaningless or superfluous.” E.g., Columbia Med. Center of Las Colinas,
Inc. v. Hogue, 271 S.W.3d 238, 256 (Tex. 2008). His theory also wrongfully denies
Appellants’ their lawful right to maintain this suit.
PRAYER
The plea to the jurisdiction should be reversed, and J.A.C. and Z.C.C. should
be given the opportunity to prove that Mr. Massey is their biological father as
provided under Sections 160.602(a)(1) and 160.637(b).
Respectfully Submitted,
FULLENWEIDER WILHITE, P.C.
4265 San Felipe, Ste. 1400
Houston, Texas 77027
713.624.4100
713.624.4141 Facsimile
service@fullenweider.com
By:/s/ Grady Reiff
Grady Reiff
State Bar No. 24074941
greiff@fullenweider.com
Randall B. Wilhite
State Bar No. 21476400
rwilhite@fullenweider.com
ATTORNEYS FOR APPELLANTS,
J.A.C. and Z.A.C.
Page 7 of 8
CERTIFICATE OF COMPLIANCE
Under Tex. R. App. P. 9.4(i)(3) as amended effective December 1, 2012, I
certify there are 1,290 words within this document exclusive of those contained in
the caption, table of contents, index of authorities, issues presented, statement of
the case, signatures, proof of service, and certificate of compliance, as tabulated by
the computer program used with preparing this document.
By: /s/ Grady Reiff
Grady Reiff
CERTIFICATE OF SERVICE
I certify a true and correct copy of the foregoing Appellants’ Brief was
served on each attorney of record or party under the Texas Rules of Civil and
Appellate Procedure on this the 14th day of December 2015.
By: /s/ Grady Reiff
Grady Reiff
Page 8 of 8