Case Information
*0 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 5:01:40 PM CHRISTOPHER A. PRINE Clerk
*1 ACCEPTED 01-14-00082-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 2/9/2015 5:01:40 PM CHRISTOPHER PRINE
CLERK NO. 01-14-00082-CV IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON MARY LYNN KANTARA GERKE V. JAMIL “JAMES” KANTARA APPELLANT’S RESPONSE TO NOTICE OF DISMISSAL FOR WANT OF JURISDICTION
TO THE HONORABLE COURT OF APPEALS:
Appellant files this response to this Court’s notice dated January 27, 2015 regarding its intention to dismiss this matter for lack of jurisdiction. BACKGROUND 1. On October 28, 2013, Associate Judge Newey signed the Order in Suit to Modify the Parent-Child Relationship (“Order”) from which Mary Lynn Kantara Gerke now appeals.
2. The Order does not include any written finding that the parties waived their right to appeal Judge Newey’s order to the referring court. At the time, Judge 1 *2 Denise Pratt presided over the referring court. 3. However, prior to trial and entry of the Order, the parties twice waived on the record their right to appeal Judge Newey’s decision on final trial. 4. The parties first waived on the record their right to appeal to Judge Pratt on November 28, 2011. See Exhibit 1 at pp.5-6. 5. Subsequently, on August 17, 2012, the parties confirmed that they waived their right to appeal Judge Newey’s judgment on final trial. See Exhibit 2 at p. ARGUMENT & AUTHORITIES 6. This Court has jurisdiction over this appeal, because the Order does constitute a final judgment. 7. Under Section 201.007 of the Texas Family Code, “an associate judge may sign a final order that includes a waiver of the right of appeal pursuant to Section 201.015.” (emphasis added) T EX . F AM . C ODE §201.007(a)(16).
8. Section 201.015 allows parties to waive their right to appeal to the referring court in writing or verbally on the record. T EX . F AM . C ODE §201.015(g). 9. A prior waiver under Section 201.015(g) is sufficient to establish an associate judge’s authority to enter a final order under Section 201.007(a)(16). The order in question does not have to include a written finding that the parties already waived their right to appeal. And the mere fact that an order does not include a written reference to the prior waiver does not deprive an associate judge to enter
2 *3 a final order under Section 201.007(a)(16). See Wells v. Wells , 2010 Tex. App. LEXIS 6787, at 2 (Tex. App. –Houston [14th Dist.] Aug. 19, 2010, pet. denied) (finding that an order was final under Section 201.007(a)(16) even though the order did not include a written reference to a waiver, because the parties had already waived their right to appeal approximately one month prior to entry of the final order) (attached hereto as Exhibit 3 ).
10. Because the parties in this matter had already waived on the record their right to appeal under Section 201.015(g), Judge Newey had the authority to enter a final order in this matter under Section 201.007(a)(16). Therefore, the Order is a final judgment and is appealable.
Respectfully submitted, LAURA DALE & ASSOCIATES, P.C. /s/ Ashley V. Tomlinson
ASHLEY V. TOMLINSON
1800 St. James Place, Suite 620 Houston, Texas 77056 Tel: (713) 600-1717 Fax: (713) 600-1718 State Bar No. 24075170 E-Service: eserviceavt@dalefamilylaw.com Non-Service: atomlinson@dalefamilylaw.com Attorney for Mary Kantara Gerke
3
CERTIFICATE OF SERVICE
*4 I certify that on this 9 th day of February, 2015, a true and correct copy of the foregoing document was served in accordance with the Texas Rules of Civil Procedure as follows:
Mr. Wilfried Schmitz 17040 El Camino Real, Suite 400 Houston, Texas 77058 Attorney of record for Mr. Kantara Via E-Service Douglas York 3355 W Alabama, Suite 100 Houston, TX 77098-1863 Amicus Attorney Via E-Service
/s/ Ashley V. Tomlinson
ASHLEY V. TOMLINSON
4
*5 I Hearing November 28, 2011 1 REPORTER ' S RECORD
VOLUME 1 OF 1 VOLUME
2 CAUSE NO. 2011-46281 IN THE MATTER OF 3 IN THE DISTRICT COURT
THE MARRIAGE OF
4 Mary Lynn Kantara Gerke
AND
HARRIS COUNTY , TEXAS 5 Jamil James Kantara an 311TH JUDICIAL DISTRICT ~ K- HEARING On the 28th day of November , 2011 , the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Robert Newey , Judge Presiding , held in Houston , Harris County , Te x as .
Proceedings reported by computerized stenotype machine .
EXHIBIT 1
*6 November 28 , 2011 APPEARANCES 1 2 3 Ms . Ma ry Lynn Kantara Gerke
707 Almond Pointe 4 League City , Texas 77573 Telephone : 281-332-8858 Pro s e Mr . Wilfried Schmitz
SBOT NO . 17778700
WILFRIED SCHMITZ & ASSOCIATES 17040 El Camino Real Suite 400 Houston, Texas 77058 Telephone : 281-486-5066 Counsel for Defendant *7 November 28, 2011 VOLUME 1
INDEX
Hearing November 28 , 2011 Reporter ' s Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 1
*8 November 28 , 2011 1 THE COURT : All right . Court calls 2 Cause No. 2011-46281 ; In the Interest of J
, J , J , and J K . Counsel , identify yourself for the record , please. MR. SCH MITZ: Your Honor , I 'm Wilfried Schmitz, S-c-h-m-i-t-z . I represent James Kantara. THE COURT : Introduce yourself , please. MS . GERKE : My name is Mary Lynn Kantara
Gerke , G-e-r-k-e; and I ' m pro se. THE COURT: And what's set this morning this afternoon? MR. SCHMITZ : Your Honor , it ' s Mrs . Gerke ' s motion that the children to confer with the II judge; my motion for atto rney fees , and mo tion to protective order and a protective hearing . THE COUHT : Okay . How old is the oldest child? MS. GERKE : Sixteen and a half. THE COURT : Okay . Is she o n this case? MR. SCHMITZ : Yes , your Honor . Well,
she ' s my client ' s cousin . THE COURT : I ' m sorry? MR. SCHMITZ : She ' s my client ' s cousin . THE COURT : Oh , okay . So , is this a
*9 November 28, 2011 custody case? MS . GERKE : It ' s a modification case . THE COURT : Asking for what? MS . GERKE : Asking -- at this point for
confer with the children to see what their preferences are as far as primary residence and possession and access , electronic communication , counseling .
THE COURT : So , if this case doesn ' t get resolved , who's going to hear it on final? MR. SCHMITZ : It doesn ' t matter to me , your Honor -- just you or Judge Pratt , either one of you .
THE COURT : I ' m the associate judge . Judge Pratt is the elected judge . I ' ll be happy to hear it for you , but you wLll have to waive your right of appeal to Judge Pratt and agree to appeal only to the Court of Appeals for me to hear it ; other wise , you need for her to hear it .
MS . GERKE : I don ' t think-- you are fine. THE COURT : I ' m sorry? MS. GERKE : You are fine . You or
Judge Pratt . THE COURT : Are you okay for me hearing it? MR . SCHMITZ : Yes , your Honor . *10 November 28, 2011 THE COURT : Now , why are you opposing me interviewing -- and how old is the youngest child? How old is J ? ; J is just ten . MR. SCHMITZ: J is the one who turned 12 since the last modifi cation . She ' s 13 now. She turned 12 when THE COURT: And you want me to inter v ie w all three of these kids? MS. GERKE : Yes , your Honor. THE COURT : Why should I not do that? MR. SCHMITZ: Your Hono~ this is request
of jury trial in this matter. There ' s no -- no motion for temporary orders .
THE COURT : Did you request a jury trial? MS . GERKE: I requested a confer to
determine what their preference is . THE COURT : Did you request a jury trial? MS . GERKE : No , your Ho n or.
I
THE COURT: Did you? MR . SCHMITZ : Yes , your Honor . If a jury trial has been THE COURT :
requested , then it ' s useless to intervie w the childre n because I or Judge Pratt or whoever wouldn ' t be able to pass on any information to anybody about that interview anyway.
~------------------------------------~------------~, 1 *11 November 28 / 2011 MS. GERKE: Your Honor , I haven ' t requested that there be a change in the primary I ' m just asking residen c e unless the c hi ldre n con fer. for temporary orders at this point in time .
THE COURT: Well , I understand that ; but it is ultimate request for a jury trial . MS. GERKE : The question -- THE COURT : We are not going to change the
residence that's been previously establis h ed by court order solely on the preference of the child or the children .
MS. GERKE : Okay . THE COURT: There has to be an emergency
or immediate threat to them before we will even co nsider that .
MS. GERKE : In the alternative , I - - I ' ve asked for confer for it to talk to the children about what they would like as far as having additional expanded visitation or co unseling other issues affecting their -- their relationship with both parents.
THE COURT: Is this case set for trial? MR. SCH MI TZ: Mu ch to our c hagrin , I
believe my staff saw it and set the trial in February. I am not sure how court ' s dockets is in February. THE COURT: Tammy, can you see or check *12 November 28/ 2011 and see if this case is set on Judge Pratt ' s or on the docket for jury trial?
THE CLERK : Okay , Judge . THE COURT : While she ' s doing that , who is
presently primary? MR . SCHMITZ : My client is , your Honor . THE COURT : Ok ay . THE CLERK : Jury trial when , Judge? THE COURT : Say it again? THE CLERK : When did y ' all say it was for
j ury t rial? MR . SCHMITZ : I think we sa w it was set on 13 the court calendar in February . Called the jury request 14 and 15 THE COURT : When did yo u p a y the j u ry fee? 16 MR . SCHMITZ : I would be telling the 17 Court -- probably , three -- four weeks or a mont h ago? 18 Two weeks ago? I can get the e x act d ate if 19 I ' m sorry? THE COURT :
MR . SCHMITZ : -- the Court wants -- I can 20 21 get the exact date . 22
THE COURT : It should be on the co mp u t er . MR . SCHMITZ : I can call 23 24 THE CLERK : Well , February 6th ; but it ' s 25
just on the general docket . *13 November 28 , 2011 MR . SCHMITZ : Has the jury request fee been paid? THE CLERK : J ury fee paid on Nove mb er 14th . So , they just paid for i t , Judge . THE COURT : Okay . But it ' s t imely paid? THE CLERK : Yes , sir . THE COURT : All right . Let ' s dea l with
the protective order first . MR . SCHMITZ : Your Honor , before we start this h earing , I would like to request by the rule invoke the rule .
THE COURT : Well , I haven ' t -- I need to hear the argument on the protective order before we take any witness ' testimony .
MR . SCHMITZ : Okay . Sure . Your Honor , on the protective order , I
have before the Court -- make a long story short -- this case wa s originally a modification case . There was original trial date . It was 2006 , a trial bet ween the parties . The case was -- went up for modi f ication in April -- March -- April of 2010 . After a long jury trial , the --
THE CO URT : When was th i s jury trial? In 2 010? *14 November 28, 2011 MR . SCHMITZ: In 2010 . THE COURT : Was that in Galveston County? MR. SCHMITZ : Galveston County . THE COURT: Okay . MR. SCHMITZ : The jury awarded the -- it
would be the best of the children -- of all four children that my client be awarded primary -- to take care of all children at that time. Since that time, the order was signed in April 15th, 2002 . Since that time, many things have happened.
My client was given the exclusive right at the consultation to make medical decisions on behalf of the children among other things . My clie nt has attempted to take the children t o several physicians , and he ' s always be impeded by " letter writing campaigns " or by whatev er by Mrs. Gerke. In fact , attached to my motion is a letter from Dr. Kitt Harrison -- said that he ' s not even going to go ahead and see the children until he gets some of sort of protective order from this court because Mrs. Gerke , since that time , has
filed numerous comp l a i nts against other medical professionals. She has been on a " letter wr iting campaign " to those medical professions . We can ' t get anybody to see these children with regard to -- with what's actually going on whether it be psychological ,
*15 November 28 , 2011 et cetera -- in some cases , medical providers , such as lead doctors, et cetera . THE COURT : The basis of your protective order is Judge , that she doesn ' t MR . SCHMITZ : contact them until after Kitt Harrison and the other professional that he decides has a chance to finish his
report . And that ' s all we are asking for . THE COURT : That she not con tact wh o? MR . SCHMITZ: Kitt Harrison -- unless he
asks her to . No complaints against him , no threats against him , none of that sort of thing .
THE COURT : And your response? MS. GERKE : Have you received my response ,
your Honor? THE COURT : When did you file it? MR. SCHMITZ : November 22nd . THE COURT : Probably not . If you can
provide me with a copy -- or let me see if Mr. Schmitz has it .
Do you have an extra copy of her response, or do you have a copy of your response? MS. GERKE : Yes , sir . THE COURT: All right . MS . GERKE : Your Honor , Mr. Kantara ,
*16 November 28 , 2011 according to the court orders , is supposed to confer wi th me before he takes the children to a physician, a counselor , or a psychologist or something li ke that .
I ' ve created a list for the kids have actually received all the medical care they need . What has happened is , i n some instances , Mr. Kantara ' s -- I work a dis t ance from my home ; and so , the appointments wil l be in the
middle of the day . So , I have sent faxes saying that these are my concerns . The kids -- I 'm unaware of the k ids not being able to receive any medical care as far as psycholog i cal care since the rendition -- or since
the last orders . I requested the kids receive their o wn counselor that ' s independent of Mr . Kantara o r myse lf . Mr . Kantara ha s engaged in t his effort since the last court orders of tr ying to take the kids to his own pr i vat e counselor ; and I guess no w, he ' s trying to make arrangements fo r an expert because he wants to further exclude me from these kids' lives . And this protective order is just a further effort to his -- to bias Mr. Henderson or Ms . Kennedy or whatever by not allowing me to have my input into what ' s going on with the kids --
THE COURT : Di d you hire Dr . Harrison? MR . SCHMITZ : Well , we attempted to --
yes, y ou r Honor . We tried also hire Ms . Kennedy at one *17 November 28 , 2011 point -- Dr. Kennedy -- THE COURT : But your protective order is aimed at protecting Dr . Harrison while he does his investigation? MS . GERKE : That ' s right . Dr. Harrison and anybody else that he refers -- part of the work to -- THE COURT : Where do you work? MS. GERKE : I work in Galveston . THE COURT : I know . Doing what? MS . GERKE : Moody National Bank . THE COURT : Doing what?
I ' m -- I ' m an accountant.
MS . GERKE :
THE COURT : I mean , both sides in a
custody case have a right to hire their o wn e xp ert if they want to . They pay for them . Expert does whatever the expert does , and then you have the right to take his
deposition to enter into whatever discovery you need to find out whether or not any opinion he renders is valid or invalid or whatever .
Now , if he -- Dr . Harrison , in this instance , wants to talk to you ; then he will make that desire known , and you can go talk to him . Other wi se , Mr . Schmitz ' s motion is to leave him alone wh ile he ' s doing his investigation .
*18 November 28 , 2011 why should I not gran~ that? It appears that both of you have this ability to threaten the other wi th grievances against their doctors . That ' s your right of free speech , but it is not helpful for your kids ; nor is it helpful for the litigation process . So , that ' s my question to you -- if it ' s their expert, why shouldn ' t they be able to have their e xpe rt do his work whatever that looks like before you have an opportunity
to talk to him and crJss -examine him . MS. GERKE : Mr . Schmitz ' s motion was not -- for Ms . Harrison-- just Mr. Harrison Mr . Schmitz's motion ls for me to not to speak to any 13 medical care provider -- 14 THE COURT : Right now , I ' m just focusing 15 on Dr . Harrison . 16 MS. GERKE : -- Just Dr. Harrison 17 THE COURT : I mean , I ' m inclined to grant 18 it as to Dr. Harrison . He is their e xp ert . 19 MS. GERKE : If they are going to have an 20 examine for litigation purposes , and he's not their 21 psycho logist or their counselor -- 22 THE COURT : He ' s just he ' s j us t doing 23 an evaluation from your standpoint ; is that correct , Mr . 24 Schmitz? 25
MR . SCHMITZ : That is correct , your Honor . *19 November 28, 2011 THE COURT : Okay. Then , he ' s not a treater . He's an evaluator. You can hire your own evaluator if you want to. No , I'm serious . That ' s the way this type of litigation unfolds. All right . I ' ll grant your motion as to Dr . Harrison . Are you asking for anything
further? MR. SCHMITZ : Yes , your Honor . Any other medical professionals that he may utilize in his investigation .
THE COURT : So , you want to -- MR. SCHMITZ : If he if he decides, for
example, he wants to-- I don ' t know a testing by somebody else require testing and review that test or whatever he decides to do , stay out of it .
THE COURT : Not any of the treaters of h is -- not any of the treaters of the chi ld ren . MR . SCHMITZ : Not any of the treaters per se . MS. GERKE : Your Honor , I don ' t have any rights to get any sort of evaluation of any sort? All of those rights are M r . Kant a r a ' s , so --
THE COURT : In this l i t i gation you have the right to get whatever evaluation you think you need . MR. SCHMITZ : With regards to the *20 November 28/ 2011 1 children? THE COURT: Absolutely. This is what this is about. There ' s a difference between an evaluation for litigation purposes and a treater for medical or
psychological reasons. MS. GERKE: Okay. THE COURT: We ' re talking here only about People wh o come in and tell the court or
evaluators. the jury what their opinion is of whatever the subject matter. They are not treaters . They are evaluators. MS. GERKE: And if you don ' t have access to my children during the week to have this done, I 13 still run into 14 THE COURT: Well , then , I can help you If they won ' t make the children available, I 15 with that . 16 can help you with that . Now, what Mr. Schmitz is 17 ta lking about is that Dr. Harrison may want to talk to 18 some other doctor to do some other form of testing. One 19 of these children apparently has some kind of special 20 medical problem. MS. GERKE : Your Honor, two of them have 21 22 special medical problems, and just so that you are 23 aware , that the kids have pretty much been tested every 24 year since they were little . There have been family 25 psychological evaluations, there have been educational
*21 November 28 , 2011 evaluations; there is evaluations everywhere on this entire family
THE COURT : Nobody has evaluated the evaluators . Well , I ' m going to expand the motion , but it does n ot apply to an y doctor who is treating any of If Dr . Harrison wan ts some form of test these children . done by somebody , he ' s going to have to find somebody who ' s not a treater o f these children .
MR. SCHMITZ : Yes , your Honor . I ' ll draft you a court order . THE COURT : Okay. Wha t else? MR . SCHMITZ : The last thing we have , your
Honor , is our motion to enter attor ney fees and for expert fees .
THE COURT : What is your client do for a living? MR . SCHM I TZ : He ' s an engineer for Lockheed Mar tin . THE COURT : And makes ho w much a month? MR . SCHMITZ : About 10 , 000 . THE COURT : I ' m sorr y? MR . SCHMITZ : About 10 ,0 00 a month .
Total . ~ HE COURT : A month? *22 November 28, 2011 MR. SCHMITZ : A month . THE COUR T : And is this a p ost-divorce
modification, or were they born without benefit of the marriage?
MR . SCH MITZ: No , this is post -- this is second post-divorce modificat io n . This second post-divorce modification was filed by Ms. Gerke . THE COURT : When was the divorce granted? Divorce was granted in 2006 . MR . SCHMITZ : THE COURT : Where? MR. SCHMITZ : In Galveston . THE COURT : Okay . MR. SCHMITZ : And the modification
was 2010 , April . THE COURT: Okay . Well, t here was another modifi cation filed little over a year? MR . SCHMITZ : Just a little bit over a year -- at that case -- and her basis -- although she hadn ' t really said so , I think the second modification I was involved in was very costly and time consuming. It was set for a full jury trial and the whole nine yards.
And I believe, Ms. Gerke is doing this just to complete my clie nt's resources ; and we can ' t continue to go further because she keeps filing these
things. And so , we'd like for this to stop at some *23 No vember 28 , 2011 point , but since she's bringing this up , we would like to get some attorney fees or something for it because now we're having to hire another expert. To give the judge a little education , in the 2010 trial , there was a court-appointed expert , if you wi ll , on a --on the children ' s mental health . THE COURT : Okay . MR . SCHMITZ : That particular
court-appointed expert was very expensive -- was paid for. She ' s in the Children Medical Center; and after
that trial, she testified on behalf of my client. This is court-appointed -- not that anybody can do anything with her. She turns around -- and she , Ms . Gerke, files complaint against this particular doctor . This particular doctor don't want to -- because of that complaint .
THE COURT : Okay . MR . SCHMITZ : This has cost us more and
more money every time. THE COURT: What happened to that complaint? MR. SCHMITZ : Pardon? THE COURT : What happened to that
complaint? MR. SCHMITZ : They dismissed that *24 November 28, 2011 complaint with that particular doctor . THE COURT : Why did t h at cos t your client anythi n g? MR . SCHMITZ : Because that particular expert , if you will , that particular person will not come for ward anymore . The modification trial also had a n amicus with her. We had to pay half of the amicus
costs . And we paid money after money , after money , after money , in that case .
T HE COURT : Okay . MR. SCHMITZ : And so , it just kept going
on and on and on. And this is a year later . I n that trial -- to let you know about the modificat i on trial , Ms . Gerke claimed the children wante d to live with her . She had people , friends, testify to that . She had her witnesses testify to that, et cetera , et cetera , et cetera . The jury still found , it was in the best
i n terest , after hearing all t h e ev i de n ce , that t h e children live with my client . Now , she ' s coming to this court and saying, well , the children want to live with me.
THE COURT : Were any attor n ey fees assessed against her in that trial? MR . SCHMITZ : Only on appeal only if she ap p ealed . If she appealed , that would be assessed *25 November 28/ 2011 against her . THE COURT : Was that the judge ' s decision or the jury ' s decision? J u ry ruled MR . SCHMITZ : Jury ' s decisio n. that if she appealed the case , there will be attorney fees assess .
THE COURT : But they did n ' t give any attor n ey ' s fees for the defense of the main case . MR. SCHMITZ : For that ' s correct . No attorney fees were assessed in the main case - - j u st that if it ' s appealed , but it is basical ly the same case we l itigate all over again . I don ' t kn o w when it stops . THE COURT : I don ' t know whether it is or it isn ' t . That ' s a fact or situation that gets -- in my opinion , it gets approached as the t rial p roceeds .
MR . SCHMITZ : Right . But we need to be able to defend ourselves --and I don ' t have a again , if she ' s paying for problem
THE COURT : I ' ll say to bot h si d es t h at this kind of litigation , loser pays . If you lose , you are going to pay the attorney ' s fees for the other side . If she wins you pay her attorney ' s fees .
MR . SCH MITZ : Yes , yo u r Ho n or . THE COURT : We ' ll carry the attorney ' s fee
request in che time of trial . *26 November 28, 2011 MR. SCHMITZ : And the expert fees? THE COURT : If it ' s your e~pert, you pay
for him. If she hires an exper t, she pays for her hers. MR. SCHMITZ : Yes, your Honor . THE COURT : Anything else? MS. GERKE : May I give you my -- THE COURT : No , you 've already filed it;
and it will work its way to our file . MS . GERKE : I have requested Court order mediation because I -- THE COURT : We require mediation in every case before final trial. MS. GERKE : I ' ve sent multiple requests to Mr. Schmitz THE COURT : I ' m just telling both of you that we requ ire mediation before trial . Anything else? MS . GERKE: If I withdraw my petition for primary custody and just request the expa nded visitation , would that allow for just a bench trial? I 'm sorry . Does it allow
THE COURT : for -- MS . GERKE : Just a bench trial at this point, not a jury trial? THE COURT : Yeah , basically. There's *27 No vember 28 , 2011 nothing -- there is no issue for a jury to decide if you make that decision .
MS. GERKE : Okay . THE COURT : All right? Al l right . Thank
you very much . MR. SCHMITZ : You said that trial is for February , is that going to be moved now to a j ury trial? THE COURT : No . And I don ' t know because she ' s indicating she may withdraw her request to be appointed primary . I ' m sorry . But if she MR. SCHMITZ : doesn ' t , then If she does not , as far as I'm THE COURT : concerned , it ' s on a ju ry docket . MR. SCHMITZ : Okay . Thank you . MS . GERK E : Your Honor , d i d you make a
ruling o n conferring my other iss u es with the children --
THE COURT : I ' m not going to make that ruling until we kn o w whether or not there ' s going to be a jury trial or not a jury trial . MS. GERKE : Okay , your Honor . THE COURT : I need an e ntry date .
December 9th on the protective order . MR. SCHMITZ : Dece mber 9th? *28 November 28, 2011 THE COURT : Yes . MR . SCHMITZ : 9:00a . m., your Honor? THE COURT : Yes. There ' s going to be a
formal written order prepared. You ' ll have a chance to review it . If you have any problems with it , come in
and we ' l l listen to you on December the 9th . Thank y ' all . MR. SCHMITZ : Thank you , your Honor . Your Honor THE COURT : Yeah . Hold on a minute. MR . SCHMITZ : I think , December 9th is
supposed to be advance drafting. Is that a Friday or Thursday?
THE COURT : It ' s a Friday. MR. SCHMITZ : I think it ' s advance
drafting. THE COURT : Advance drafting MR. SCHMITZ : Yeah -- THE COURT : -- takes preference over
getting this order in . MR. SCHMITZ : It doesn ' t , your Honor , but I would ask the Court to wait one week. THE COURT : To December 16th? MR. SCHMITZ : Yes , your Honor . THE COURT : Okay.
*29 November 28 , 2011 MR. SCHMITZ : Thank you. THE COURT : December the 16th instead of
the 9th. MR . SCHMITZ: Tha nk you very much, your Honor . MS . GERKE : Thank you v ery much. (proceedings conclude d)
*30 November 28 , 2011 STATE OF TEXAS COUNTY OF HARRIS
I, Jessica J. Kim, Deputy Court Reporter in and for the 311th District Court of Harris , State of Texas , do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested in writing by counsel for the parties to be included in this volume of
the Reporter ' s Record in t he above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me .
I further certify that this Reporter ' s Record of the proceedings truly and correctly reflects the exhibits , if any, offered by the respective parties.
I further certify that the total cost for the preparation of this Reporter ' s Record is $ \j{~.~and
was paid/w ill be paid by
Jess~ca J . Kim , CSR Texas CSR 8971 Deputy Court Reporter 311th District Court Harris County , Texas P . O . BOX 19695 Houston, Texas 77224 Telephone : 832-398-0576 Expiration : 12/31/2013
EXHIBIT 2
*31 *45 Page 1 *46 FOCUS - 1 of 1 DOCUMENT LEANNE NICOLE WELLS, Appellant v. DOUGLAS GIBSON WELLS, Appellee NO. 14-09-00811-CV COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON 2010 Tex. App. LEXIS 6787 August 19, 2010, Memorandum Opinion Filed SUBSEQUENT HISTORY: Petition for review denied record reflects that appellant waived her right of appeal to by Wells v. Wells, 2011 Tex. LEXIS 134 (Tex., Feb. 18, the referring court in writing at the June 18, 2009 hearing 2011) before the associate judge. See Tex. Fam. Code Ann. §
201.015(g) (Vernon Supp. 2009) ("Before the start of a PRIOR HISTORY: [*1] hearing by an associate judge, the parties may waive the On Appeal from the 328th District Court, Fort Bend right of a de novo hearing before the referring court in County, Texas. Trial Court Cause No. 09-DCV-169191. writing or on the record."). Specifically, appellant signed an agreed order before the associate judge that states, "I COUNSEL: For appellants: Michael William Elliott, hereby waive any right of appeal to the referring court Richmond, TX. pursuant to Section 201.015(g) Texas Family Code ."
Moreover, this agreed order reflects that the nature of the For appellees: David Perwin, Rosenberg, TX; Adam J. proceeding was a "Final Decree of Divorce." The Morris, Houston, TX. associate judge signed the order, noting that the divorce decree would be entered on July 15, 2009. An associate
JUDGES: Panel consists of Chief Justice Hedges and [*2] judge "may sign a final order that includes a waiver Justices Yates and Boyce. of the right of appeal pursuant to Section 201.015 ." Id . § 201.007(a)(16) (Vernon 2008).
OPINION
Under these circumstances, we conclude that appellant waived her right to appeal the associate judge's
MEMORANDUM OPINION
order to the referring court. We therefore overrule her sole appellate issue and affirm the trial court's judgment.
In her sole issue on appeal, appellant Leanne Nicole Wells asserts that the trial court erred in ruling that her
PER CURIAM
appeal of an associate judge's entry of the final divorce decree to the referring court was untimely. However, the