Mark Thompson, Sr. v. Karen Smith ( 2015 )

ACCEPTED
01-15-00010-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
4/8/2015 5:17:36 PM
CHRISTOPHER PRINE
CLERK
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
NO. 01-15-00010-CV 4/8/2015 5:17:36 PM
CHRISTOPHER A. PRINE
Clerk
MARK THOMPSON, SR.,
Appellant,
V .
KAREN SMITH,
Appellee.
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2013-03434
APPELLANT,S BRIEF
CORDELL & CORDELL, P C.
1330 Post Oak Boulevard, Suite 1800
Houston, Texas 77056
Tel: (832) 730-2969, Fax: (832) 730-2970
By: /s/Nida C.Wood _
Nida C.Wood
State Bar No. 24072034
E-mail: nchaudhriwood@cordelllaw . com
Bryan L. Abercrombie
State Bar No. 24029411
E-mail: babercrombie@cordelllaw . com
Attorneys for Appellant
ORAL ARGUMENT REQUESTED
/
IDENTITY OF PARTIES AND COUNSEL
Pursuant to the Texas Rule of Appellate Procedure 38.1(a), Appellant, Mark
Thompson, Sr., provides the following complete list of all parties and counsel to
the trial court's judgment being appealed:
Appellant:
Mark Thompson, Sr.
1800 James Bowie Drive #85
Baytown, Texas 77520
Trial/Appellate Counsel for Mark Thompson, Sr.
Nida Chaudhri Wood
CORDELL & CORDELL, P.C.
1300 Post Oak Blvd., Suite 1800
Houston, Texas 77056
State Bar No. 24072034
Email - nchaudhriwood@cordelllaw.com
Bryan L. Abercrombie
CORDELL & CORDELL, P.C.
1300 Post Oak Blvd., Suite 1800
Houston, Texas 77056
State Bar No. 24029411
Email - babercrombie@cordelllaw.com
Appellee:
Karen Smith
709 CR401
Dayton, Texas 77535
Trial Counsel Karen Smith
Sally A. Jones
ELLIOTT, HEINLEIN & JONES, P.C.
P O Box 1446
. .
Crosby, Texas 77532
State Bar No. 10954700
Email - sjones@ehjlawpc.com
-
1 -
Appellate Counsel Karen Smith
G Troy Pickett
.
BUTEL & PICKETT PLLC
2222 Bissonnet Street, Suite 203
Houston, Texas 77005
State Bar No. 24072757
Email - gtpservice@butelpickett.com
TABLE OF CONTENTS
I .
Identity of Parties and Counsel.1
II. Table of Contents.3
III. Index of Authorities.5
IV. Statement of the Case..7
V .
Issues Presented.8
VI. Statement of Facts...9
VII. Summary of Argument...11
VIII. Argument.12
A . Issue Number One - Under Texas Family Code Section 154.302, does a
trial court abuse its discretion by ordering a parent to provide indefinite
support for an adult child when the record contains insufficient evidence
to support a finding of disability and substantial care?.12
1 .
Standard of Review...12
2.
The evidence presented at trial was insufficient for the court to
exercise its discretion.14
B . Issue Number Two - Under Texas Family Code Section 154.306, does a
trial court abuse its discretion by imposing a child support obligation
past a child s 18tk birthday when the court failed to make findings
,
regarding the statutorily mandated factors?.17
IX. Prayer..20
X .
Verification.22
XI. Certificate of Service.. 23
XII. Certificate of Compliance.23
-
3 -
XIII. Appendix
INDEX OF AUTHORITIES
Cases Page
Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 242 (Tex.1985)..12
Fulgham v. Fischer,
349 S.W.3d 153, 157 (Tex.App.-Dallas 2011, no pet.).13
In re A.M. W,
313 S.W.3d 887, 890 (Tex.App.-Dallas 2010, no pet.).12
Mclntyre v. Ramirez,
109 S.W.3d 741, 745 (Tex.2003).14
Ortiz v. Jones,
917 S.W.2d 770, 772 (Tex. 1996).13
Quick v. Plastic Solutions of Tex., Inc.,
270 S.W.3d 173, 181 (Tex.App.-El Paso 2008, no pet.).13
Stucki v. Stucki,
222 S.W.3d 116, 199 (Tex. App.-Tyler 2006, no. pet).12
Watson v. Watson,
286 S.W.3d 519, 522 (Tex.App.-Fort Worth 2009, no pet.).12, 13
Worford v. Stamper,
801 S.W.2d 108 (Tex. 1990).12
Wolkv. Wolk,
No. 03-06-00595-CV (Tex.App.-Austin 2007, no pet.)
(memo op.; 9-12-07)........18, 19
-5-
Statutes Page
Tex. Fam. Code Ann. § 154.302.!.14,17
Tex. Fam. Code Ann. § 154.306..17,18,19,20
Tex. R. Evid. 601..15
Secondary Sources
The American Heritage College Dictionary (5th ed. 2015).15
-6-
Statement of the Case
This appeal arises from a suit for indefinite support of an adult child filed by
Appellee Karen Smith (hereinafter referred to as "Appellee"). C.R. 5-6. In
response to the petition, Appellant Mark Thompson, Sr. (hereinafter referred to as
,
"
Appellant"), filed a Motion to Transfer Venue Respondent's Plea in Abatement,
,
Plea to the Jurisdiction and Original Answer. and Motion to Dismiss for Lack of
,
Jurisdiction. C.R. 7-11,38-41.
After hearing oral arguments the trial court denied the transfer request and
,
held that jurisdiction did exist to conduct a hearing on whether or not the court has
jurisdiction over the issues of the child's alleged disability and right to support.
CR . .
52. Appellant sought mandamus relief from this Court and the Supreme
Court of Texas, but was denied the requested relief. C.R. 65-192, 194-205 220. ,
The parties proceeded to trial before the court Appellee's petition in August
2014, and the trial court ruled in favor of Appellee and ordered Appellant to pay
" "
support for the adult child (hereinafter JLT . . .
) indefinitely. C.R. 234-241.
Appellant requested and was denied a new trial (C.R. 254-261 268-269), and ,
timely filed notice of this appeal on January 7, 2015. C.R. at 296-297.
7
- -
Issues Presented
1 .
Under Texas Family Code Section 154.302 does a trial court abuse its
,
discretion by ordering a parent to provide indefinite support for an adult
child when the record contains insufficient evidence to support a finding of
disability and substantial care?
2
.
Under Texas Family Code Section 154.306 does a trial court abuse its
,
discretion by imposing a child support obligation past a child's 18th birthday
when the court failed to make findings regarding the statutorily mandated
factors?
-
8 -
Statement of Facts
This appeal stems from an order requiring Appellant to provide indefinite
support for an adult child. C.R. 234-241 296. ,
On January 18, 2013, Appellee filed a Petition for Support ofDisabled Child
seeking support of the parties' adult child J.L.T. , C.R. 5-6. In her petition,
Appellee alleged that J.L.T. "requires substantial care and personal supervision
because of a mental disability and is not capable of self-support .
"
C.R. 5-6. In an
amended petition filed in May 2014 Appellee further alleged that J.L.T.'s mental
,
disability "exists now and the cause of the disability was known to exist on or
,
before [J.L.T's] eighteenth birthday." C.R. 207-208. Trial was before the court in
August 2014. C.R. 234.
At trial, the court heard evidence from a custodian of records for J.L.T's
high school, Appellee J.L.T., Appellee's sister, J.L.T.'s older brother, and
,
Appellant. Through this testimony and the documents admitted into evidence the ,
following facts about J.L.T.'s mental state and capabilities were established -
. JL
. .
T is capable of communicating with others (2 R.R. 20:21-21:8 66:15- ,
78:24);
. JLT
. . .
is competent to testify as a witness and be placed under oath (2 R.R.
66:11-17);
. JLT
. . .
can dress herself without assistance (2 R.R. 68:2-6) but benefits from
,
9
- -
being reminded to engage in good personal hygiene (2 R.R. 22:20-23:9);
. JLT
. . .
has poor eyesight and hearing (2 R.R. 21:15-18), walks on her toes (2
RR . .
21:12-13), has balance issues (2 R.R. 21:14) and is clumsy (2 R.R.
,
93:16-20), but needs no special equipment to help her (2 R.R. 45:6-16 3 ,
RR . .
22:12-15);
. JLT
. . .
is under the care of a psychiatrist for reasons unrelated to her alleged
disability (2 R.R. 26:3-7, 59:2-8);
. JLT
. . .
has had mishaps in the past when she is upset (2 R.R. 22:14-16 25:8-
,
15, 83:6-17, 93:4-8; 94:9-18) but she is taking mediation that helps to
,
control these emotional outburst episodes (2 R.R. 69:3-10);
. JLT
. . .
lives with Appellee and has never been given the opportunity to live
on her own (2 R.R. 21:20-24, 57:4-5);
. JLT
. . .
has a high school diploma (2 R.R. 20:5-7, 3 R.R. 11:17-20) and made
' '
almost all A s and B s throughout her high school career (4 R.R. 34-37);
. JLT
. . .
is eligible to vote (2 R.R. 49:12-13); and
. JLT
. . .
is of sufficient intelligence and mental capability to understand and
sign a Power of Attorney (2 R.R. 55:18-56:1).
Evidence was also presented at trial regarding general living expenses of
J L T.
. .
(2 R.R. 28:8-19, 50:7-51:17, 56:7-57:3, 4 R.R. 43), medical bills incurred in
the past on her behalf (2 R.R. 29:7-9, 4 R.R. 43), and Appellant's income (2 R.R.
10-
-
28:12, 28:20-25, 3 R.R. 29:16-25, 39:15-18). The only evidence offered to the
lower court, though, regarding the financial resources available to Appellee for
'
support of J.L.T. was a ballpark figure for her husband s monthly net income. (2
RR
. . 46:16-23).
At the conclusion of the evidence and argument, the lower court took the
case under advisement (3 R.R. 53:2-3) and eventually ruled in favor of Appellee by
imposing an indefinite child support obligation on Appellant for support of J.L.T.
C R 233-241.
. .
On January 7, 2015, Appellant timely filed notice of this appeal. C.R. 296-
297.
Summary of the Argument
The trial court abused its discretion by imposing an indefinite child support
obligation on Appellant when there was insufficient evidence to show that J.L.T.
currently suffers from a disability that causes her to require substantial care.
Without such evidence, the court did not have the ability to exercise its discretion
in imposing a support obligation relating to the adult child and to do so was
manifestly unjust and wrong.
The trial court abused its discretion by imposing an indefinite child support
obligation on Appellant when the court did not have enough evidence before it to
consider the required factors under Texas Family Code Section 154.306. Appellee
-
11 -
failed to meet her burden regarding at least one of the four factors that the court
must give special consideration to when determining the amount of support to be
paid for an adult child. Accordingly, imposing and setting a child support
obligation in this case was an abuse of discretion.
Argument
A .
Issue Number One.
Under Texas Family Code Section 154.302, does a trial court abuse its
discretion by ordering a parent to provide indefinite support for an adult
child when the record contains insufficient evidence to support a finding of
disability and substantial care?
1 .
Standard of Review
A court,s order regarding child support may be overturned on appeal if the
complaining party can show a clear abuse of discretion. Worford v. Stamper 801 ,
SW
. .
2d 108, 109 (Tex. 1990); see also In re A.M.W., 313 S.W.3d 887 890 ,
(Tex.App.-Dallas 2010, no pet.). A trial court abuses its discretion when its
decision is arbitrary, unreasonable, and without reference to any guiding rules or
principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242
(Tex. 1985).
In family law cases, legal and factual insufficiency are factors in
determining whether there was an abuse of discretion by the trial court as opposed
to independent grounds of error. Watson v. Watson, 286 S.W.3d 519, 522
(Tex.App.-Fort Worth 2009, no pet.); Stucki v. Stucki, 222 S.W.3d 116, 199 (Tex.
-
12-
App.-Tyler 2006, no. pet). When a sufficiency of evidence inquiry overlaps with
the abuse of discretion standard, a two-pronged analysis is employed. Watson 286
SW
. . 3d at 522-23. First, the reviewing court must determine if the trial court had
sufficient evidence upon which to exercise discretion. Id. If sufficient evidence
exists, the appellate court must then decide if the trial court correctly applied its
discretion. Watson 286 S.W.3d at 522-23. In other words, this court must
conclude that the ruling was a reasonable decision. Id
Additionally, in an appeal from a bench trial, the trial court,s findings of fact
have the same weight as a jury verdict. Fulgham v. Fischer, 349 S.W.3d 153, 157
(Tex.App.-Dallas 2011, no pet.). Findings may be overturned only if they are so
against the great weight and preponderance of the evidence as to be clearly wrong
and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When the appellate
,
record contains a reporter s record, findings of fact are not conclusive and are
binding only if supported by the evidence. Fulgham, 349 S.W.3d at 157.
A trial court,s conclusions of law are reviewed de novo. Quick v. Plastic
Solutions of Tex., Inc., 270 S.W.3d 173, 181 (Tex.App.-El Paso 2008, no pet.).
Erroneous conclusions of law are not binding on the appellate court, but if the
controlling findings of fact will support a correct legal theory, are supported by the
evidence, and are sufficient to support the judgment, then the adoption of
erroneous legal conclusions will not mandate reversal. Id.
-
13-
 As applied to the case at hand, the evidence offered at trial was insufficient
to prove that J.L.T. suffered from a disability that required substantial past care and
thus the court abused its discretion in imposing a child support obligation on
Appellant.
2. The evidence presented at trial was insufficient for the court to
exercise its discretion.
Texas Family Code Section 154.302 sets forth the required findings a court
must make in order to impose an obligation for indefinite child support on a parent.
Tex. Fam. Code Ann. § 154.302. Specifically a party seeking indefinite child
,
support must show (1) the child requires substantial care and personal supervision ,
(2) the required care and supervision is caused by a present mental or physical
disability of the child, (3) the child will not be capable of self-support in the future ,
and (4) the disability either existed on or prior to the child's 18tf birthday or its
cause was known to exist on or before that date. Id. Failure to provide sufficient
proof of each element prevents a trial court from granting the request for indefinite
support. See Id.
The Texas Family Code does not provide a definition of "disability" or
"
substantial care" in connection with Section 154.302. Id. Under the rules of
statutory construction, though, a reviewing court is to start with the plain and
,
common meaning of the statute s words to determine the legislature's
intent. Mclntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). According to The
-14-
American Heritage College Dictionary the word "substantial" means considerable
,
in amount or extent, and the word "disability" means "a physical or mental
"
condition that significantly limits a person,s motor sensory, or cognitive abilities.
,
The American Heritage College Dictionary (5th ed. 2015). What's more in ,
the legal context, The American Heritage College Dictionary defines the word
"
disability" as a "lack of legal capacity to perform some act such as to enter into a
,
contract, because of infancy or lack of soundness of mind." Id.
During the trial of this case, the following uncontroverted information was
'
available to the court regarding J.L.T. s current mental and physical state as well as
her need for assistance -
. She is competent to testify as a witness and be placed under oath (2
RR . .
66:11-17), Tex.R.Evid. 601;
. She has a malformed jaw and tongue which cause a speech
impediment (2 R.R. 20:21-21:8), but that impediment does not prohibit her from
communicating with others (2 R.R. 21:3-8, 66:15-78:24);
. She is able to read (2 R R 19:17-18), write (2 R.R. 63:1-2, 74:25-
. .
75:10), do basic math (2 R.R. 63:3-4), use a computer (2 R.R. 50:3-4), and use a
cell phone (2 R.R. 76:6-14);
. She is capable of getting dressed without assistance (2 R R 68:2-6);
. .
. She has poor eyesight and hearing (2 R R 21:15-18), walks on her
. .
-15-
toes (2 R.R. 21:12-13), has balance issues (2 R.R. 21:14) and is clumsy (2 R.R.
,
93:16-20), but needs no special equipment to help her (2 R.R. 45:6-16 3 R.R. ,
22:12-15);
. She has a high school diploma (2 R R 20:5-7, 3 R.R. 11:17-20) and
. .
'
made almost all A s and B '
s throughout her high school career (4 R.R. 34-37);
. She is eligible to vote (2 R R 49:12-13); and
. .
. She is of sufficient intelligence and mental capability to understand
and sign a Power of Attorney (2 R.R. 55:18-56:1).
Using the common meanings of the words "disability" and "substantial" as
set forth above, the foregoing evidence overwhelmingly refutes Appellee's claims
that J.L.T. suffers from a disability and needs substantial care. The uncontroverted
facts clearly show that J.L.T. is of sound mind suffers no significant impairment of
,
her motor, sensory or cognitive abilities, and does not need a considerable amount
of care as a result of the impairments from which she does suffer.
Appellee will most likely point this Court to evidence regarding past
incidents and mishaps involving J.L.T. (2 R.R. 22:14-16 25:16-24, 83:6-17, 93:4-
,
8) to support her claim that J.L.T. is presently mentally disabled and needs
substantial care. For the majority of these incidents, though, Appellee failed to
provide any timeframe on when the incidents occurred in the twelve years since
JLT
. . .
turned 18 (2 R.R. 22:14-16, 83:6-17). Appellee further failed to provide any
-16-
evidence that these incidents are expected to reoccur in the future or explain how
these past behaviors are still part of J.L.T.'s mental state now that she is under the
care of a psychiatrist (2 R.R. 25:16-26:11) and taking mediation that helps to
control her emotional outbursts (2 R.R. 69:3-10). Finally Appellee presented
,
evidence that J.L.T. has never lived on her own (2 R.R. 21:22-24) but the Court
,
heard evidence from J.L.T. herself that although she does need to live with other
,
people, this is only to avoid nervous breakdowns (2 R.R. 67:21-68:1).
In sum, the evidence presented at trial was wholly insufficient to support the
trial court,s finding that J.L.T. was presently disabled and consequently requires
substantial care. The evidence clearly showed that J.L.T. does not need substantial
care and is not presently disabled and thus Appellee failed to meet her burden of
proof on two required elements under Texas Family Code Section 154.302.
Accordingly, the lower court abused its discretion when it imposed an indefinite
child support obligation on Appellant.
B .
Issue Number Two.
Under Texas Family Code Section 154.306, does a trial court abuse its
discretion by imposing a child support obligation past a child's 18tt birthday
when the court failed to make findings regarding the statutorily mandated
factors?
Under Texas Family Code Section 154.306, the court shall determine and
give special consideration to four factors when determining the support obligation
for a child over eighteen years of age: (1) any existing or future needs of the adult
-17-
child directly related to the adult child,s mental and physical disability; (2) whether
the parent pays for or will pay for the care or supervision of the adult child or
provides substantial care and personal supervision of the adult child; (3) the
financial resources available to both parents for the support; and (4) any other
resources or programs available for the support care, and supervision of the adult
,
child. Tex. Fam. Code Ann. § 154.306. When a trial court imposes a support
obligation under Section 154.306 without sufficient evidence on each of these
factors, an abuse of discretion has occurred. See Wolk v. Wolk No. 03-06-00595-
,
CV (Tex.App.-Austin 2007, no pet.) (memo op.; 9-12-07).
In the case of Wolk v. Wolk, the lower court imposed a post-18 child support
obligation on the father of a child suffering from Down's syndrome. Id. The
evidence presented at trial included confirmation of the child's present disability ,
that the mother was the primary caretaker of the child and that she had been taking
,
care of the child for years. Id. There was no evidence presented though, showing
,
the child's current or future medical needs directly related to his disability the
,
substantial care and personal supervision required relating to the child's disability ,
whether the mother pays or will pay for the care and supervision of the child or
will provide substantial care, or financial or other resources or programs available
for the support and care of the child. Id. Based on this lack of evidence the ,
appellate court found that the trial court abused its discretion by imposing a
-18-
support obligation when it did not have sufficient information to determine and
give special consideration to the statutorily required factors of Texas Family Code
154.306. Id.
As in Wolk, there was a complete lack of evidence presented at trial
regarding at least one required factor of Section 154.306. No evidence was
presented on what existing or future needs J.L.T. has that are directly related to her
alleged disability and the substantial care and personal supervision required by that
alleged disability. Testimony and exhibits were presented regarding general living
expenses of J.L.T. (2 R.R. 28:8-19, 50:7-51:17, 56:7-57:3, 4 R.R. 43) including
generic information on prior medical bills incurred on behalf of J.L.T. (2 R.R.
29:7-9, 4 R.R. 43), but nothing specific was offered as a need stemming directly
from her alleged disability (2 R.R. 59:2-8, 59:16-24). Accordingly, the court could
not have been able to consider the first required factor.
In addition, there was no evidence presented on whether Appellee pays for
or will pay for the care or supervision of the adult child or provides or will provide
substantial care and personal supervision for J.L.T. Appellee testified that she
lives with J.L.T. (2 R.R. 21:20-21. 57:4-5) and reminds J.L.T. to engage in good
personal hygiene (2 R.R. 22:20-23:9) but failed to offer evidence demonstrating
that she provides or will provide actual substantial care for J.L.T. in the future.
Without this evidence, it was not possible for the lower court to give proper
-
19-
consideration to the second statutory factor.
Moreover, the trial court was not presented with evidence regarding the
financial resources available to both parents for support of J.L.T. Evidence was
admitted regarding Appellant's income (2 R.R. 28:12 28:20-25, 3 R.R. 29:16-25,
,
39:15-18); however, Appellee did not disclose all of the financial resources
available to her that would be available to support J.L.T. (2 R.R. 46:16-23 58:12-
,
14, 63:13-64:19, 65:14-66:5). The only evidence she presented to satisfy the third
factor under Section 154.306 was an estimate of her husband's net monthly income
(2 R.R. 46:22-23). As such, the court was not able to give the requisite
consideration to this factor.
In conclusion, it was error for the trial court to impose a support obligation
on Appellant because the court was not presented with evidence sufficient to allow
special consideration of three of the four factors required under Texas Family Code
Section 154.306.
Prayer
Appellant respectfully requests, based on the argument and authorities
contained herein, that the Court reverse the applicable rulings of the 246th Judicial
District Court , Harris County Texas and hold that the trial court abused its
discretion by imposing an indefinite child support obligation on Appellant.
-20-
StaeBrNo.24091
Respectfully Submitted,
CORDELL & CORDELL, P.C.
1330 Post Oak Boulevard, Suite 1800
Houston, Texas 77056
Tel: (832) 730-2969
Fax: (832) 730-2970
By: /s/NidaC.Wood _
Nida C.Wood
State Bar No. 24072034
E-mail: nchaudhriwood@cordelllaw com .
Bryan L. Abercrombie
E-mail: babercrombie@cordelllaw .
com
Attorneys for Appellant
21 -
STATE OF TEXAS §
COUNTY OF HARRIS §
Before me, the undersigned authority appeared Nida C. Wood, known to me
,
to be the person whose name is subscribed below who stated, under oath, that she
,
is above the age of twenty-one years he is the attorney for Appellant, Mark
,
Thompson, Sr., in her capacity as such has personally reviewed all exhibits
,
contained in the appendix to this Appellant,s Brief he has personal knowledge that
,
all such exhibits are true, correct and complete as contained in the files of Harris
County District Clerk or LexisNexis, as applicable except as redacted in
,
compliance with the applicable Texas Rules of Appellate Procedure.
Nida C. Wood
SWORN TO AND SUBSCRIBED day of
-22-
Certificate of Service
I certify that a true copy of the foregoing with attached appendix was served
in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on each
,
party or that party s lead counsel via e-service on April 8, 2015:
Counsel for Appellee:
Mr. G. Troy Pickett
2222 Bissonnet Street, Suite 203
Houston, Texas 77005
/s/Nida C.Wood
Nida C. Wood
Bryan L. Abercrombie
Attorneys for Appellant
Certificate of Compliance
Pursuant to Tex. R. App. P. 9.4(i)(3), I certify that this document contains
2, 748 words and is thus within the limits imposed by Tex. R. App. P. 9.4(i)(2)(B).
/s/Nida C.Wood
Nida C. Wood
Bryan L. Abercrombie
Attorneys for Appellant
-
23 -
APPENDICES: The following documents are attached to this brief and
incorporated in it for all purposes.
Appendix A: Attached to this brief are the following documents:
1 _
A certified copy of the Order For Support ofAdultDisabled Child.
2 .
A certified copy of the Finding ofFact and Conclusions ofLaw.
3 . TEX. FAM. CODE ANN. §154.302 (West 2014).
4 . TEX. FAM. CODE ANN. §154.306 (West 2014).
5 .
TEX. RULES OF EVIDENCE Rule 601.
APPENDIX A-1
In re: Mark Thompson, Sr.-Appellant
APPENDIX
A-2 .
A certified copy of the Order For Support ofAdult Disabled Child.
A-3 .
A certified copy of the Finding ofFact and Conclusions of Law.
A-4 .
TEX.FAM. CODE ANN. §154.302 (West 2014).
A-5 .
TEX. FAM. CODE ANN. §154.306 (West 2014).
A-6 .
TEX. RULES OF EVIDENCE Rule 601.
A-1
APPENDIX A-2
In re: Mark Thompson, Sr.-Appellant
~
file n
Chris De;ii .} 1 .
Districi C:i
"
>
NO. 2013-03434
SEP 0 5 20W tP
lima-_Srt&Cgu
IN THE INTEREST OFt IN THE FAMILfeDISTMCTCO.
f;
S HARRIS COUNTY, TEXAS
1-
ADULT CHILD. 246™ JUDICIAL DISTRICT
ORDER FOE SUPPORT OF ADULT DISABLED CHILD
On August 13 and 14,2014, the Court heard the Petition for Support of Adult Disabled
Child filed by KAREN SMITH, Petitioner.
Appearances
Petitioner, KAREN SMITH, appeared in person and through attorney of record, Sally A
Jones, and announced ready for trial.
Respondent, MARK THOMPSON, SR., appeared in person and through attorneys of
record, Nida Chaudhri Wood and Biyan Abercrombie, and announced ready for trial.
Jurisdiction
The Court, after examining the pleadings and hearing the evidence and argument of
counsel, finds that it has jurisdiction of this case and of all the parties and that no other court has
continuing, exclusive jurisdiction, A jury was waived, and all questions of fact and of law were
submitted to the Court. All persons entitled to citation were properly cited.
Record
A record of testimony was duly reported by Jenine Redden on August 13,2014 and by
Alexandra McMillen on August 14,2014.
Filings [d
f self-support.'
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RECORDER'S MEMORANDUM
This ,nstrumerit is of poor quality
trie time of imaging 234
The Court further finds that the child the subject of this suit is over the age of eighteen
years, and the disability exists now and existed on or before the eighteenth birthday of the child.
Support Order
IT IS ORDERED that MARK THOMPSON, SR. is obligated to pay and shall pay to
KAREN SMITH child support of THREE HUNDRED AND NO/lOO ($300.00) DOLLARS per
month, with the first payment being due and payable on September 1,2014 and a like payment
being due and payable on the 1®* day of each month thereafter until the first month following the
date of the earliest occurrence of one of the events specified below:
the child dies; or
2 .
further order modifying this child support.
( /h /
IT IS ORDERED that all payments snail be made through the state disbursement unit at
Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791,
and thereafter promptly remitted to KAREN SMITH for the support of the child.
Withholding From Earnings
IT IS ORDERED that any employer of MARK THOMPSON, SR. shall be ordered to
withhold from earnings for child support from the disposable earnings of MARK THOMPSON,
SR. for the support of .
IT IS FURTHER ORDERED that all amounts withheld from the disposable earnings of
MARK THOMPSON, SR. by the employer and paid in accordance with the order to that
employer shall constitute a credit against the child support obligation. Payment of the full
amount of child support ordered paid by this decree through the means of withholding r
f om
earnings shall discharge the child support obligation. If the amount withheld from earnings and
credited against the child support obligation is less than 100 percent of the amount ordered to be
235
paid by this decree, the balance due remains an obligation of MARK THOMPSON, SR., and it is
hereby ORDERED that MARK THOMPSON, SR. pay the balance due directly to the state
disbursement unit as specified below,
On this date the Court signed an Income Withholding for Support.
IT IS ORDERED that all payments shall be made through the state disbursement unit at
Texas Child Support Disbursement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791,
and thereat
f er promptly remitted to KAREN SMITH for the support of the child.
IT IS FURTHER ORDERED that MARK THOMPSON, SR. shall notiy
f this Court and
KAREN SMITH by U.S. certified mail, return receipt requested, of any change of address and
of any termination of employment. This notice shall be given no later than seven days at
f er the
change of address or the termination of employment. This notice or a subsequent notice shall
also provide the current address of MARK THOMPSON, SR. and the name and address of his
current employer, whenever that information becomes available
IT IS ORDERED that, oni the request of a prosecuting attorney, the title 1V-D agency, the
friend of the Court, a domestic relations ofi
f ce, KAREN SMITH, MARK THOMPSON, SR., or
an attorney representing KAREN SMITH or MARK THOMPSON, SR., the clerk of this Court
shall cause a certified copy of the Income Withholding for Support to be delivered to any
employer.
Additional ChMSuppmi
As additional child support, IT IS ORDERED that KAREN SMITH is awarded all Social
Security Disability Insurance payments which are payable to through
the earnings record of MARK THOMPSON, SR., as his adult child who became disabled before
oillÿpars, lis pwded andasisavailabie underHederallaw.
#"
236
IT IS ORDERED that MARK THOMPSON, SR. shall assist and accompany KAREN
THOMPSON, as an adult disabled child claiming through MARK THOMPSON SR.,s Social
Security earnings record.
IT IS ORDERED that the application shall be completed to take effect on September 1,
2015, the date of MARK THOMPSON SR.'s full eligibility for Social Security benefits.
that all jjEÿme ntsmadebyihe
benefit of f PSON shaH-btfdirected t
Possession or Access
The Court finds that the following provisions for possession of or access to JENNIFER
THOMPSON are m the best interest of the child:
In the absence of other mutual agreement of the parties, MARK THOMPSON., SR. shall
have the right of possession of or access to on Sunday of each week,
ÿ"
beginning at 1:00 p.m. and ending at 3:00 p.m. P* ÿ (*rV' P ÿ6
"
tlrx. S-4 Vt*<4-A/vv
BEFORE THE INTENDED CHANGE. IF THE PARTY DOES NOT KNOW OR COULD NOT HAVE
KNOWN OF THE CHANGE IN SUFFICIENT TIME TO PROVIDE 60-DAY NOTICE, THE PARTY IS
ORDERED TO GIVE NOTICE OF THE CHANGE ON OR BEFORE THE FIFTH DAY AFTER THE DATE
THAT THE PARTY KNOWS OF THE CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH OTHER PARTY, THE COURT,
AND THE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS
ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR ENTITLED TO POSSESSION OF
OR ACCESS TO A CHILD.
FAILURE BY A PARTY TO OBEY THE ORDER OF THIS COURT TO PROVIDE EACH OTHER
PARTY, THE COURT, AND THE STATB CASE REGISTRY WITH THE CHANGE IN THE REQUIRED
INFORMATION MAY RESULT IN FURTHER LITIGATION TO ENFORCE THE ORDER, INCLUDING
CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY CONFINEMENT IN
JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, AND A MONEY
JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
Notice shall be given to the other party by delivering a copy of the notice to the party by
registered or certified mail, return receipt requested. Notice shall be given to the Court by
delivering a copy of the notice either in person to the clerk of this Court or by registered or
certified mail addressed to the clerk at P. O. Box 4651, Houston, Texas 77210. Notice shall be
given to the state case registry by mailing a copy of the notice to State Case Registry, Contract
Services Division, MC046S, P.O. Box 12017, Austin, Texas 78711-2017.
Notice to any peace officer of the state of Texas: You may use
REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODY SPECIFIED IN THIS
ORDER, A PEACE OFFICER WHO RELIES ON TOE TERMS OF A COURT ORDER AND THE
OFFICER,S AGENCY ARE ENTITLED TO TOE APPLICABLE IMMUNITY AGAINST ANY CLAIM,
CIVIL OR OTHERWISE, REGARDING THE OFFICER'S GOOD FAITH ACTS PERFORMED IN THE
SCOPE OF THE OFFICER,S DUTIES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO
CHILD CUSTODY. ANY PERSON WHO KNOWINGLY PRESENTS FOR ENFORCEMENT AN ORDER
THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE THAT MAY BE
PUNISHABLE BY CONFINEMENT IN JAIL FOR AS LONG AS TWO YEARS AND A FINE OF AS
MUCH AS $10,000.
Warnings
WARNINGS TO PARTIES: FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR
FOR POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER LITIGATION TO
ENFORCE THE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF CONTEMPT MAY BE
PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SDC MONTHS, A FINE OF UP TO $500 FOR
-
6 -
239
EACH VIOLATIONs AND A MONEY JUDGMENT FOR PAYMENT OF ATTORNEY'S FEES AND
COURT COSTS.
Failure of a party to make a child support payment to the place and in
THE MANNER REQUIRED BY A COURT ORDER MAY RESULT IN THE PARTY'S NOT RECEIVING
CREDIT FOR MAKING THE PAYMENT. -
FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT
PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. REFUSAL BY A PARTY TO.
ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY
COURT-ORDERED CHILD SUPPORT TO THAT PARTY.
Costs
IT IS ORDERED that costs of court are to be borne by the party who incurred them.
ReliefNot Granted
IT IS ORDERED that all relief requested in this case and not expressly granted is denied.
Date of Order
This order judicially PRONOUNCED AND RENDERED in court at Houston, Harris
County, Texas, on August 22,2014 and further noted on the court,s docket sheet on the same
date, but signed on
JUDGE PRESIDING
240
APPROVED AS TO FORM ONLY:
ELLIOTT, HEINLEIN & JONES, P.G.
Sally A J Jones
State/mr No. 10954700
P O/Box 1440
.
Crosby, Texas 77532
(281)328-6583
FAX (281) 462-0733
siones@ehjlawpc.com
Attorneys for Petitioner
CORDELL & CORDELL, P.C.
ftirtoacMcrt
Nida Chaudhri Wood
State Bar No. 24072034
1330 Post Oak Blvd., Suite 1800
Houston, Texas 77056
(832)730-2965
FAX (832) 730-2966
nchaudhrlwood@cordel1kw.com
Attorneys for Respondent
CORDELL & CORDELL, P.C.
A/t»f
Bryan Abercrombie ÿ t */
State Bar No. 24029411
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APPENDIX A-4
In re: Mark Thompson, Sr.-Appellant
Tex. Fam. Code 8 154.302
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > TEXAS FAMILY CODE > TITLE 5. THE PARENT-CHILD
RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP > SUBTITLE
B SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
. > CHAPTER 154. CHILD SUPPORT
> SUBCHAPTER F. SUPPORT FOR A MINOR OR ADULT DISABLED CHILD
§ 154.302. Court-Ordered Support for Disabled Child
(a) The court may order either or both parents to provide for the support of a child for an indefinite period and may
determine the rights and duties of the parents if the court finds that:
(1) the child, whether institutionalized or not, requires substantial care and personal supervision because of a
mental or physical disability and will not be capable of self-support; and
(2) the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child.
(b) A court that orders support under this section shall designate a parent of the child or another person having physical
custody or guardianship of the child under a court order to receive the support for the child. The court may
designate a child who is 18 years of age or older to receive the support directly.
History
Enacted by Acts 1995, 74th Lec„ ch. 20 (H.B, 655). § 1, effective April 20 1995; am. Acts 1997, 75th Leu., ch. 1173
,
(S.B. 497). § 1, effective September 1, 1997.
Annotations
Case Notes
Civil Procedure: Judgments: General Overview
Civil Procedure: Appeals: Standards of Review: Substantial Evidence: Sufficiency of Evidence
Evidence: Procedural Considerations: Weight & Sufficiency
Family Law: Child Support: Jurisdiction: Continuing Jurisdiction
Family Law: Child Support: Obligations: General Overview
Family Law: Child Support: Obligations: Types: Dependent Adult Support
Governments: Legislation: Interpretation
LexisNexis (R) Notes
Civil Procedure: Judgments: General Overview
1 Although the child did not need constant supervision, the testimony at the hearing was sufficient to support a finding
.
that he required substantial care and frequent personal supervision; thus, because the evidence supported the omitted
element that the child required substantial personal supervision, the appellate court could supply that element under Tex.
R Civ. P. 299: therefore, the trial court's findings are sufficient to support an order of child support beyond the child's
.
eighteenth birthday, Tex. Fam. Code Am. $ 154.302(a)(1). In re W.M.R., 2012 Tex, App. LEXIS 9097 (Tex. App. Fort Worth
Nov. I 2012).
Civil Procedure: Appeals: Standards of Review: Substantial Evidence: Sufficiency of Evidence
2 Evidence was legally and factually sufficient to support trial court>s finding that a child with muscular dystrophy would
.
be incapable of self-support after age 18 and thus judgment directing father to pay monthly support beyond eighteenth
NIDACHAUDHRI
APPENDIX A-5
In re: Mark Thompson, Sr.-Appellant
Tex. Fam. Code $ 154.306
This document is current through the 2013 3rd Called Session
Texas Statutes and Codes > TEXAS FAMILY CODE > TITLE 5. THE PARENT-CHILD
RELATIONSHIP AND THE SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP > SUBTITLE
B SUITS AFFECTING THE PARENT-CHILD RELATIONSHIP
.
> CHAPTER 154. CHILD SUPPORT
> SUBCHAPTER F SUPPORT FOR A MINOR OR ADULT DISABLED CHILD
§ 154.306. Amount of Support After Age 18
In determining the amount of support to be paid after a child's 18th birthday, the specific terms and conditions of that
support, and the rights and duties of both parents with respect to the support of the child, the court shall determine and
give special consideration to:
(1) any existing or future needs of the adult child directly related to the adult child's mental or physical disability
and the substantial care and personal supervision directly required by or related to that disability;
(2) whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide
substantial care or personal supervision of the adult child;
(3) the financial resources available to both parents for the support, care, and supervision of the adult child; and
(4) any other financial resources or other resources or programs available for the support, care, and supervision
of the adult child.
History
Enacted by Acts 1995. 74th Lee., ch. 20 (H.B. 655). § 1, effective April 20, 1995.
Annotations
Case Notes
Family Law: Child Support: Obligations: General Overview
Family Law: Child Support: Obligations: Types: General Overview
Family Law: Child Support: Obligations: Types: Dependent Adult Support
LexisNexis (R) Notes
Family Law: Child Support: Obligations: General Overview
1 A trial court is not required to take into consideration a party>s debts to determine his net resources, nor does it provide
.
that the court consider net resources of the parties when setting support for an adult disabled child. In re Marriage of
Harbrecht. 1998 Tex. Anp. LEXIS 1297 (Tex. Am. Amarillo Feb. 27 1998).
Family Law: Child Support: Obligations: Types: General Overview
2 Finding against the father was proper because his argument that the trial court abused its discretion by ordering him to
,
'
pay excessive child support was without merit. In part, the court heard testimony from the mother concerning the child s
future needs and documentary evidence was also presented and considered. In re W.M.R., 2012 Tex. Apv. LEXIS 9097 (Tex.
App. Fort Worth Nov. I 2012).
Family Law: Child Support: Obligations: 'types: Dependent Adult Support
3. Finding against the father was proper because his argument that the trial court abused its discretion by ordering him to
'
pay excessive child support was without merit. In part, the court heard testimony from the mother concerning the child s
NIDACHAUDHRI
APPENDIX A-6
In re: Mark Thompson, Sr.-Appellant
Tex. Evid. R. 601
This document is current through February 4, 2015
Texas Court Rules > STATE RULES > TEXAS RULES OF EVIDENCE > ARTICLE VI.
WITNESSES
Rule 601 Competency and Incompetency of Witnesses
(a) General Rule. -Every person is competent to be a witness except as otherwise provided in these rules. The
following witnesses shall be incompetent to testify in any proceeding subject to these rules:
(1) Insane Persons. -Insane persons who, in the opinion of the court, are in an insane condition of mind at the
time when they are offered as a witness, or who, in the opinion of the court, were in that condition when the
events happened of which they are called to testify.
(2) Children. -Children or other persons who, after being examined by the court, appear not to possess sufficient
intellect to relate transactions with respect to which they are interrogated.
(b) "Dead Man,s Rule" in Civil Actions. -In civil actions by or against executors, administrators, or guardians, in
which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the
others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is
corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions
"
of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent
based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving
evidence of or concerning any transaction with, any conversations with, any admissions of, or statement by, a
deceased or insane party or person merely because the witness is a party to the action or a person interested in the
event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from
testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral
statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called
at the trial by the opposite party.
Annotations
Notes
PUBLICATION REFERENCES. -See Texas Civil Trial Guide, Unit 22, Rules Affecting Admissibility ; Texas Litigation
Guide, Ch. 114, Motions in Limine.
Case Notes
Civil Procedure: Summary Judgment: Supporting Materials: General Overview
Civil Procedure: Summary Judgment: Supporting Materials: Affidavits
Civil Procedure: Appeals: Reviewability: Preservation for Review
Constitutional Law: Bill of Rights: Fundamental Rights: Criminal Process: Right to Confrontation
Contracts Law: Contract Interpretation: Parol Evidence: General Overview
Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Sexual Assault: General Overview
Criminal Law & Procedure: Criminal Offenses: Sex Crimes: Sexual Assault: Abuse of Children: General Overview
Criminal Law & Procedure: Counsel: Right to Counsel: Critical Stage
Criminal Law & Procedure: Trials: Examination of Witnesses: Child Witnesses
Criminal Law & Procedure: Witnesses: General Overview
Criminal Law & Procedure: Witnesses: Credibility
Criminal Law & Procedure: Witnesses: Presentation
NIDACHAUDHRI