Mary Lynn Kantara Gerke v. Jamil James Kantara, 01-14-00082-CV

Background

This is an appellee brief in an appeal from a 2013 trial-court order modifying a 2010 family-law custody/possession order between Mary Lynn Kantara Gerke (Appellant) and Jamil “James” Kantara (Appellee).
Mary filed to modify the 2010 order in 2011 seeking extensive changes including primary custodial rights, educational and medical decision-making, expanded possession, and removal of passport/travel restrictions; trial began 2012 and concluded 2013.
The trial court retained joint managing conservatorship but granted James additional exclusive rights, imposed use of the OurFamilyWizard communication platform, ordered counseling for the children with a provider selected by James, altered possession times (including removal of mid-week visit), and apportioned health-insurance premium payments.
The court found Mary’s modification suit frivolous and designed to harass, and awarded James $50,000 in attorney’s fees under Tex. Fam. Code §§106.002 and 156.005 (reduced from claimed fees of ≈$103,812).
Appellee’s primary defenses on appeal: (1) Mary waived most preservation arguments by failing to make specific trial objections; (2) many contested changes were clarifications or were tried by consent; (3) the attorney-fee award was within the court’s discretion and/or invited by Mary.

Issues

Issue	Plaintiff's Argument (Mary)	Defendant's Argument (James)	Held (Trial-court outcome / Appellee position)
Whether the 2013 order modified rights not pleaded or tried	Mary contends 14 modifications violated due process because they lacked pleading support and were not tried by consent	James argues Mary failed to preserve error for most alleged modifications and many were clarifications or tried by consent	Appellee: court did not err; most objections waived and many changes were procedural/method clarifications (e.g., use of OurFamilyWizard)
Use of OurFamilyWizard and removal of "after consultation" wording	Mary asserts the court impermissibly altered statutory/contractual consultation rights	James contends the court only established a method to effect consultation because prior informal consultation failed	Appellee: adoption of OurFamilyWizard is a permissible method of consultation; not reversible error and was effectively tried by consent
Change to possession schedule (weekend start/end times and elimination of mid-week visit)	Mary argues these are unauthorized modifications of possession rights	James argues changes were for children’s welfare, tried at trial, and court found mid-week visits would harm children	Appellee: court properly adjusted times for children’s welfare; removal of mid-week was supported by evidence (harm) and/or tried by consent
Attorney-fee award under Tex. Fam. Code §§106.002, 156.005	Mary contends award was excessive/unwarranted and tied to alleged improper modifications	James argues Mary invited the ruling, trial evidence supported fees, fees were reasonable, and the suit was frivolous/harassing	Appellee: court’s $50,000 award appropriate; trial judge acted within discretion, fee testimony admitted, and Mary requested some relief tied to fee judgment (invited error)

Key Cases Cited

Cunningham v. Parkdale Bank, 660 S.W.2d 810 (Tex. 1983) (trial court generally may not grant relief not pleaded unless error was preserved or issue tried by consent)
Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.—Houston [14th Dist.] 2013) (addressing scope of modifications, notice/pleading, and whether a change removing consultation was permissible or was trial-by-consent issue)
In re B.L.D., 113 S.W.3d 340 (Tex. 2003) (preservation and necessity of specific trial complaints for appellate review)
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (standard of appellate review for suits affecting parent–child relationship; trial court’s broad discretion)
Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (factors for determining reasonable and necessary attorney’s fees)