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 REPLY BRIEF

LAURA DALE & ASSOCIATES, P.C.

Ashley V. Tomlinson

State Bar No. 24075170

1800 St. James Place, Suite 620

Houston, Texas 77056

Telephone: (713) 600-1717

Facsimile: (713) 600-1718

ATTORNEY FOR APPELLANT,

MARY LYNN KANTARA GERKE

ACCEPTED

01-14-00082-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/17/2015 5:59:52 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/17/2015 5:59:52 PM CHRISTOPHER A. PRINE Clerk
ii

TABLE OF CONTENTS

TABLE OF CONTENTS.......................................................................................... ii

INDEX OF AUTHORITIES.................................................................................... iii

ARGUMENT and AUTHORITIES...........................................................................1

I. Mary preserved error on each of the Fourteen Modifications....................1

a. Procedural History and Overview.........................................................1

b. Mary’s Motion for Reconsideration and Motion for New Trial were

sufficiently specific ...............................................................................6

II. James does not contend that the pleadings support the trial court’s 

judgment. ....................................................................................................8

III. James has failed to establish trial by consent.............................................9

IV. Each of the Fourteen Modifications substantively modifies the 2010 

Order, causing harm to Mary....................................................................13

a. Modification 1 .....................................................................................13

b. Modifications 2-5 and 8 ......................................................................14

c. Modification 13 ...................................................................................16

V. Mary did not invite error on the question of attorney’s fees....................17

a. Appellants must request additional findings on omitted elements .....17

b. The trial court omitted elements from its findings of facts and 

conclusions of law...............................................................................18

VI. Orders regarding counseling or secondary health insurance....................20

CONCLUSION and PRAYER ................................................................................22

CERTIFICATE OF COMPLIANCE.......................................................................23

CERTIFICATE OF SERVICE ................................................................................24
iii

INDEX OF AUTHORITIES

CASES

Bailey v. Rodriguez,

351 S.W.3d 424 (Tex.App.—El Paso 2011, no pet.) ..............................................20

Baltzer v. Medina,

240 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2007, no pet.).........................11

Binder v. Safady,

193 S.w.3d 29 (Tex.App.—Houston [1st Dist.] 2006, no pet.)............................. 8-9

Flowers v. Flowers,

407 S.W.3d 452 (Tex. App.—Houston [14th Dist.] 2013, n.p.h.) ............ 8-9, 12, 15

Greene & Mills v. Young,

174 S.W.3d 291 (Tex.App.—Houston [1st Dist.] 2005, pet. denied) ................. 9-10

Holley v. Adams,

544 S.W.2d 367 (Tex. 1976).............................................................................. 11-12

In the Interest of A.B.H. & L.N.H., 

266 S.W.3d 596 (Tex.App—Fort Worth 2008, no pet.)..........................................10

King v. Lyons, 

2014 Tex. App. LEXIS 13908 (Tex.App.—Houston [1st Dist.] Dec. 30, 2014)......9

Moneyhon v. Moneyhon, 

278 S.W.3d 874 (Tex.App.—Houston [14th Dist.] 2009, no pet.).................... 10-11

Moreno v. Perez, 

363 S.W.3d 725(Tex.App.—Houston [1st Dist.] 2011, no pet.)....................... 11-12

Sage Street Assoc. v. Northdale Constr. Co., 

863 S.W.2d 438 (Tex. 1993)....................................................................................10

Vickery v. Comm’n for Lawyer Discp., 

5 S.W.3d 241 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) .................. 19-20
iv

STATUTES AND RULES

TEX. FAM. CODE §106.002 .................................................................................17, 20

TEX. FAM. CODE §153.002 .......................................................................................11

TEX. FAM. CODE §153.071 .........................................................................................3

TEX. FAM. CODE §153.073 ..................................................................................... 2-7

TEX. FAM. CODE §153.074 .........................................................................................6

TEX. FAM. CODE §153.132 ..................................................................................... 2-7

TEX. FAM. CODE §156.005 ................................................................................. 17-20

TEX. R. APP. 33.1.......................................................................................................1

TEX. R. CIV. P. 296...................................................................................................18

TEX. R. CIV. PROC. 298 ............................................................................................18

TEX. R. CIV. PROC. 299 ...................................................................................... 18-19
1

ARGUMENT AND AUTHORITIES

I. Mary preserved error on each of the Fourteen Modifications.

Mary preserved error with respect to each of the Fourteen Modifications. James 

concedes that Mary preserved error with regard to midweek possession, but 

contends that Mary has failed to preserve error on the remaining thirteen 

modifications. Appellee’s Brief at 16. In order to preserve an issue for appellate 

review, the record must show that “the complaint was made to the trial court by a 

timely request, objection, or motion” that stated the grounds with sufficient 

specificity to make the trial court aware of the complaint, unless the specific 

grounds were apparent from the context. TEX. R. APP. 33.1(a)(1)(A). A motion 

for new trial overruled by operation of law preserves for appellate review any 

complaint properly made in that motion, unless taking of evidence was necessary 

to present the complaint in the trial court. TEX. R. APP. P. 33.1(b). Mary 

adequately preserved error regarding each of the Fourteen Modifications in her 

Motion for Reconsideration and Motion for New Trial.

a. Procedural History and Overview

On the last day of trial, James admitted into evidence a list of his requested 

relief. R1;8RR91-92. In his requested relief, James asked that the trial court leave 

intact the existing order regarding possession and access and the majority of the 

existing order regarding conservatorship. R1;8RR91-94. The only modification of 
2

conservatorship that he requested was to Mary’s rights under Section 153.073; 

specifically, he asked that Mary not contact school officials, and medical and 

mental health-care providers in a “harassing, offensive, or intimidating manner.” 

R1; 8RR92-94. 

At that time, the court had also heard hours of testimony of the following 

possession schedule: Mary had the right to possession of the children on 

Wednesdays from 5 p.m. until 8 p.m. and her weekend periods of possession ended 

on Mondays at the time the children’s school resumed. 1SCR13. At the close of 

evidence, the trial court made the following rendition:

“I’m appointing Mr. Kantara sole managing conservator, Ms. Kantara as 

sole possessory conservator...I’m giving Mr. Kantara the exclusive right to 

make all educational decisions, all medical decisions. I’m giving him the 

option of consulting with Ms. Gerke should he choose...Possession will be 

no overnight midweek, 1st, 3rd and 5th Fridays...to 6:00 p.m. on Sunday” 

(emphasis added). 

8RR134-35. The trial court also stated that, despite the existing possession order 

and the pleadings, “[this court’s] policy is to...return to primary on Sunday.” 

8RR125.

Prior to entry of the order, Mary filed her Motion for Reconsideration. 

4SCR42. Mary asked the trial court to reconsider its order naming James as sole 

managing conservator and removing the obligation to consult with Mary prior to 

making medical or educational decisions, because the pleadings did not support 

those modifications. 4SCR42-43. Mary did not raise any other points in her 
3

motion, because there were still disputes as to the substantive interpretation of the 

trial court’s oral rendition that the court had not yet resolved. 4SCR42-43; 9RR4-

14. 

On October 10, 2013, the parties appeared for a contested entry hearing. 9RR4-

14. There were disputes as to whether James’s proposed order was consistent with 

the trial court’s oral rendition. 9RR4-14. At the entry hearing, counsel argued 

over the following issues: (1) whether the court ordered that Mary lose her 

midweek period of possession entirely, or simply refused her request for overnight 

possession; (2) whether James’s option to consult with Mary regarding medical 

and educational decisions also applied to Mary’s rights at all times under Section 

153.0731

; and (3) whether the remaining rights and duties under Section 153.132

were modified and, if so, how. 9RR4-14. 

At the October 10th hearing, the trial court clarified that he was removing 

Mary’s midweek possession in its entirety. 9RR13. With regard to Mary’s rights 

under Section 153.073, Mary argued that James’s proposed order was inconsistent 

with the court’s rendition to the extent that the proposed order improperly

expanded the scope of the court’s rendition that removed James’s obligation to 

consult with Mary before making medical and educational decisions. James’s 

 1 Section 153.073 outlines a parent’s rights at all times and include the right to receive 

information from the other conservator or to confer with the other conservator. TEX. FAM. CODE

§153.073. In contract Section 153.132 outlines a distinct set of rights of conservators to be 

allocated between conservators. TEX. FAM. CODE §153.132; TEX. FAM. CODE §153.071
4

counsel conceded that he extended that ruling to Mary’s rights under Section 

153.073. 9RR5-7. In response to Mary’s objection that this was inconsistent with 

the trial court’s rendition, the trial court stated “I don’t necessary disagree with 

that.” 9RR7. Nevertheless, the trial court still accepted James’s proposed order, 

thus modifying his rendition to order that Mary’s rights under 153.073(a)(1)-(2) 

would only be “at the option” of James. 9RR8-9. 

During the contested entry hearing, the trial court also clarified his rendition 

and made a more detailed rendition regarding the parties’ rights and duties under 

Section 153.132. In his original rendition, the trial court orally rendered regarding 

only medical and educational decisions. 8RR134-35. On October 10, Mary sought 

clarification from the trial court regarding its ruling on Mary’s other rights under 

section 153.132, including the right to consent to marriage and enlistment, the right 

to represent the children in legal actions, and the right to service and earnings of 

the children. 9RR10-11. In response, the trial court ordered that James had the 

obligation to consult with Mary only prior to consenting to the children’s marriage 

or enlistment in the armed forces. 9RR10-11. The trial court clarified that all other 

rights under 153.132 would belong exclusively to James without consultation. 

9RR10-11.2

 2 Under the 2010 Order, other than the children’s residence, receipt of child support, medical, 

and education, all other rights and duties were independent. 1SCR8-9.
5

In his brief, James inaccurately states the trial court asked Mary “which rights 

she was specifically worried about” in reference to her Motion for Reconsideration

and that she “replied the right to consent to marriage and enlistment, the right to 

represent the children in legal actions, and the rights to service and earnings of the 

children.” Appellee’s Brief at 14. James argues that she, therefore, waived error 

on all other rights and duties under Section 153.132. Appellee’s Brief at 13-14. 

Yet, as the record reveals, Mary’s inquiry on these rights was limited to 

clarification of the court’s rendition; this exchange was not in the context of 

Mary’s Motion for Reconsideration or her Motion for New Trial. 9RR4-14.

Upon clarifying its rendition, the trial court heard Mary’s Motion for 

Reconsideration. 9RR14-15. In response to Mary’s motion, the trial court 

reinstated the parties as joint managing conservators, but kept the substantive 

allocation of rights as exclusively belonging to James. 9RR16. In other words, the 

court changed the titles, but still allocated rights to James as if he were sole 

managing conservator. The trial court also left in place his initial order removing 

the consultation requirement for medical and educational decisions and his

subsequent expansion of that order to other rights and duties. Mary timely filed 

her Motion for New Trial stating her objections to the court’s final order. CR61.
6

b. Mary’s Motion for Reconsideration and Motion for New Trial were

sufficiently specific.

Mary’s motion was sufficiently detailed to give the trial court notice of her 

objections. The motion clearly stated her specific complaint: the trial court 

knowingly granted relief for which neither party pleaded. In her motion, Mary 

challenged all relief that fell within the trial court’s explicit finding that the order 

included “modifications in addition to the modifications requested by the parties.” 

CR62. Mary also specifically objected that the “trial court modified the parties’ 

rights and duties under Chapter 153 of the Texas Family Code” and removed 

Mary’s midweek periods of possession without support in the pleadings. CR62-63. 

The rights and duties under Chapter 153 refer to a finite list contained in only three 

provisions: Section 153.073 (rights at all times); Section 153.074 (rights during 

periods of possession); and Section 153.132 (rights and duties of a parent 

appointed sole managing conservator). TEX. FAM. CODE §153.073; TEX. FAM.

CODE §153.074; TEX. FAM. CODE §153.132.

Even if this by itself were not sufficiently specific to make the trial court aware 

of the nature of the complaint, the nature of the complaints are apparent to the 

court from the context. The trial court was well aware which relief deviated from 

the pleadings. In fact, each item of relief that deviated from the pleadings was due 

to a purposeful decision on the part of the trial court. On the last day of trial, after 

hearing testimony about the visitation schedule and James’s requested relief, the 
7

judge interjected that the court has a standing “policy” to order children to return 

from weekend visitation on Sundays, and not Mondays. 8RR125. The institution 

of such a policy, by its very nature, reveals a deliberate action by the trial court to 

issue orders that may not be supported by the pleadings. The trial court also heard 

James testify that he was requesting only a few, narrow modifications to Mary’s 

rights under Section 153.073; specifically, that she not contact school staff and 

medical and mental health care providers in a harassing, offensive or intimidating 

manner. 8RR92. James admitted into evidence a summary of his requested relief. 

R1. On that same day, the trial court denied James’s requested modifications of 

Mary’s rights, instead “giving [James] the option of consulting with Ms. Gerke 

should he choose” on all educational and medical decisions. 8RR134-35.3 At no 

point had either party requested that James no longer have the obligation to consult 

with Mary prior to making medical or educational decisions for the children. 

Subsequently, at the hearing on Mary’s Motion for Reconsideration, the judge 

admitted that Mary “may have an appellate point.” 9RR18-19. Yet, rather than 

conform to the pleadings, the judge bluntly stated, “if the court of appeals reverses 

it, so be it.” 9RR19. Even though the judge reinstated the parties as joint managing 

conservators, he still allocated all rights and duties to James as a sole managing 

conservator. CR33-34. And despite Mary’s objection to the removal of the 

 3 The trial later expanded this ruling on October 10, 2013 to include two of Mary’s rights under 

Section 153.073. 
8

consultation requirement in her Motion for Reconsideration, the court expanded 

that ruling to additional rights and duties. 4SCR42-43; CR31. James has failed to 

cite to any authority that Mary’s objections in her Motion for Reconsideration and

Motion for New Trial are not sufficiently specific, or that her objections were not 

otherwise apparent from the context. 

II. James does not contend that the pleadings support the trial court’s 

judgment.

The central issue in this case is that of due process. More specifically, the issue 

before this Court is whether the trial court issued a judgment that failed to conform 

to the pleadings, thus depriving Mary of fair notice. Notably, James does not 

contend in his brief that there exists any plausible interpretation of the parties’ 

pleadings that would support the modifications in question. His brief does not 

contain any authority to support an argument that the pleadings could be 

interpreted to such a broad extent as to give adequate notice to Mary. 

Indeed, the trial court’s judgment requires an impermissibly broad 

interpretation of the pleadings. Neither party requested for Mary to lose time with 

the children. R1;8RR91-94; CR4-6; 1SCR36-44. Likewise, neither party requested 

that James be relieved of his obligation to consult with Mary, that Mary lose her 

independent rights, or that Mary no longer have the right to basic communication 

with James about their children, one of whom has special needs. R1;8RR91-94; 

CR4-6; 1SCR36-44. The facts of this case are strikingly similar to prior 
9

modification cases in which courts have refused to find adequate notice. See 

generally Flowers v. Flowers, 407 S.W.3d 452 (Tex. App.—Houston [14th Dist.] 

2013, n.p.h.); see also Binder v. Safady, 193 S.w.3d 29 (Tex.App.—Houston [1st 

Dist.] 2006, no pet.)

Recently, this Court reaffirmed the central holdings from these prior cases: a 

court may not grant relief in a suit affecting the parent-child relationship (SAPCR) 

unless the parties “had notice by way of the pleadings or the issue was tried by 

consent.” King v. Lyons, 2014 Tex. App. LEXIS 13908, at *19 (Tex.App.—

Houston [1st Dist.] Dec. 30, 2014) (citing Flowers, 407 S.W.3d at 457). Even 

though courts should read the pleadings liberally in SAPCRs, the pleadings must 

still be sufficient to inform the party of the issue. Id. (citing Messier, 389 S.W.3d 

at 907). Courts cannot use liberal construction “as a license to read into the 

petition a claim that it does not contain.” Id. at *7-8 (citing Flowers, 407 S.W.3d 

at 458). While general prayers for relief in SAPCRs may include relief consistent 

with the rest of a parties’ pleading, it cannot be used to “enlarge a pleading to the 

extent that it embraces an entirely different cause of action for which fair notice 

does not exist.” Id. 

III. James has failed to establish trial by consent.

James has failed to establish that any of the Fourteen Modifications were 

unequivocally tried by consent. Trial by consent applies only to exceptional cases 
10

in which it appears from the record that the parties tried an issue not raised by the 

pleadings. Greene & Mills v. Young, 174 S.W.3d 291, 301 (Tex.App.—Houston 

[1st Dist.] 2005, pet. denied). An issue must have been clearly tried. Id. 

Consent may be found only when evidence regarding an issue is developed 

under circumstances indicating that both parties understood that the issue was 

being tried. In the Interest of A.B.H. & L.N.H., 266 S.W.3d 596, 600 (Tex.App—

Fort Worth 2008, no pet.) Eliciting testimony or admitting evidence relevant to an

unpleaded issue is not by itself sufficient to establish trial by consent. Sage Street 

Assoc. v. Northdale Constr. Co., 863 S.W.2d 438 (Tex. 1993); Greene & Mills, 

174 S.W.3d at 301. Moreover, when that same evidence is also relevant to issues 

raised by the pleadings, that evidence cannot serve as a basis for trial by consent, 

because it does not indicate to the parties that the issue was being tried. Moneyhon 

v. Moneyhon, 278 S.W.3d 874, 879 (Tex.App.—Houston [14th Dist.] 2009, no 

pet.). 

James has conceded that the issue of midweek visitation was not tried by 

consent. Appellee’s Brief at 25. He has failed to establish that any of the 

remaining thirteen modifications were tried by consent. While he cites at length to 

the record to evidence that he contends supports a finding of trial by consent, he 

ignores that fact that he explicitly testified and admitted into evidence of summary 

of his requested relief at the end of trial. R1;8RR91-94. Nowhere in his requested 
11

relief did he ask the trial court to order any of the modifications at issue in this 

appeal. R1; 8RR91-94. This in itself indicates that, by the end of trial, neither 

party understood that the additional modifications were being tried. James has also 

failed to cite to any part of the record in which he explicitly requested any of the 

remaining thirteen modifications. See Baltzer v. Medina, 240 S.W.3d 469, 476 

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (refusing to find that an issue was 

tried by consent when there was never any testimony expressly requesting that 

relief.) 

Furthermore, all of the evidence to which James cites in support of his 

argument for trial by consent is also relevant to issues raised in the parties’ 

pleadings. See Moneyhon, 278 S.W.3d at 879. In regard to weekend possession, 

James points to his testimony in which he alleged that the children are stressed out 

at Mary’s house, that the children return upset, that Mary fails to complete their 

homework over the weekends, and that Mary makes inappropriate and hurtful 

statements to the children. Appellee’s Brief at 23. Even if Mary conceded the 

veracity of these allegations, they would not be sufficient to constitute trial by 

consent. They are equally relevant to a defense to Mary’s petition and to James’s 

contention that it would not be in the best interest of the children to modify the 

existing visitation schedule. CR6; TEX. FAM. CODE §153.002 (“The best interest of 

the child shall always be the primary consideration of the court in determining 
12

issues of conservatorship and possession of and access to the child); Moreno v. 

Perez, 363 S.W.3d 725, 737 (Tex.App.—Houston [1st Dist.] 2011, no pet.); Holley 

v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Likewise, James cites to globally relevant evidence in an attempt to establish 

trial by consent of the modification of the parties’ rights and duties. James 

specifically cites to testimony about the ongoing discord and ineffective 

communication (or absence of communication) between the parties. 4

 Yet, this 

testimony is also equally relevant to the parties’ requested relief, particularly 

Mary’s request for primary custody. The ability to effectively communicate (or 

inversely the failure to communicate) and to co-parent with the other conservator 

illustrates the overall “parental abilities of the [parent] seeking custody.” See 

Holley, 544 S.W.3d at 371-72. Because this evidence is relevant to both pleaded 

and unpleaded issues, it cannot establish trial by consent. The Fourteenth Court of 

Appeals has already refused to find trial by consent based on a similar set of facts. 

See Flowers, 407 S.W.3d at 459 (finding that evidence of “hostility and animosity” 

 4 In his brief, James also states that the amicus attorney “specifically asked James what was the 

best method of communication between James and Mary.” Appellee’s Brief at 21. James makes 

this reference in support of an argument that consultation through Our Family Wizard prior to 

making educational and medical decisions was an issue that was tried by consent. He refers to 

this as the “method of consultation.” As set forth below in Section IV(b), the trial court did not 

keep the consultation requirement intact and simply order James to consult with Mary via Our 

Family Wizard. This is an inaccurate representation of the order and of the record. The trial 

court removed the obligation to consult. Also, the statement is James’s brief does not accurately 

reflect the record. The amicus did not specifically ask James what the best method of 

communication with Mary. Instead, the amicus asked if James had an “answer” as to how to get 

the two parties to start “communicating effectively.” Again, this is generally relevant to parental 

abilities to co-parent and communicate.
13

and the parties’ inability to communicate did not establish trial by consent to 

remove the consultation requirement when the same evidence was relevant to the

remainder of the judgment).

IV. Each of the Fourteen Modifications substantively modifies the 2010 

Order, causing harm to Mary.

The Fourteen Modifications at issue are just that - modifications. In his brief, 

James contends that items 1-5, 8, and 13-14 do not constitute modifications. 

James’s argument, however, disregards the plain language of the order and 

inaccurately interprets the record. All of the Fourteen Modifications substantively 

modified Mary’s rights without notice, depriving her of due process and causing 

her harm.

a. Modification 1

The trial court specifically ordered that Mary only has the right to receive 

information from James concerning the health, education and welfare of the 

children, at the option of [James].” CR31. The court only ordered one narrow 

exceptions to James’s otherwise broad discretion regarding whether to share 

information about the children: James is required to “post the names of all medical 

providers and notice of all medical appointments of the children” to Our Family 

Wizard. CR54. This language is unambiguous and narrow. James is required to 

tell Mary only the names of medical providers and the dates of appointments. 

CR54. Should there be any information regarding the children’s welfare that Mary
14

cannot obtain through the school or medical provider, James may simply choose to 

withhold it from Mary. 

The record reveals that the Our Family Wizard exception was specifically 

crafted for and limited to this one issue. 9RR9-10. It was intended to give Mary 

just enough information to make inquiries to the children’s medical providers, and 

to excuse James from having to otherwise share any other information with Mary 

about their children’s well-being. 9RR9-10. Contrary, to James’s contentions, the 

narrow Our Family Wizard exception does not require him to consult with Mary 

prior to making any decisions. 

b. Modifications 2-5 and 8

James contends that the trial court did not modify the 2010 order when it 

removed James’s obligation to consult with Mary. According to James, the trial 

court did not remove the consultation requirement, but only modified the method 

of consultation. Appellee’s Brief at 21-22. This argument, however, is based on a 

specious interpretation of the plain language of the order and has no basis in the 

record. Contrary to what James claims in his brief, the order does not require 

consultation.

There is no language in the 2013 order that requires James to consult with Mary 

prior to exercising his exclusive rights. CR33-34. Moreover, the phrase “after 

consultation with Mary,” which was in the 2010 Order, has been removed from the 
15

same rights and duties in the 2013 Order. 1SCR8; CR33-34. The order is 

consistent with the trial court’s rendition, in which the court explicitly ruled that 

James was not required to consult with Mary. 8RR135; 9RR4-14. 

Further, the Our Family Wizard language only requires disclosure of very 

limited information; it does not require consultation prior to making medical, 

psychological or educational decision. CR54. Not only is this clear from the plain 

language of the order, but it is also readily apparent from the trial court’s 

explanation. On October 10, the trial court explained that James must post this 

limited information to Our Family Wizard “so there is simply a disclosure”

(emphasis added). 9RR8. 

There is simply no requirement that James consult with Mary through Our 

Family Wizard prior to exercising his exclusive rights. Just as in Flowers v. 

Flowers, the trial court erred when it completely removed the obligation to consult 

prior to exercising exclusive rights. 407 S.W.3d 452, 456-57 (Tex. App.—

Houston [14th Dist.] 2013). 5

 

 5 James attempts to distinguish this case from Flowers by contending that all of the rights in the 

2010 Order that are now at issue in Modifications 2-5 and 8 were conditional. Specifically, 

James claims that James’s obligation was limited to consultation with Mary “‘to the extent 

possible’ before making a decision concerning the health, education and welfare of the children.” 

Appellee’s Brief, p. 21. Once again, even a cursory review of the plain language of the order 

reveals that this is a wholly inaccurate representation. Under the 2010 Order, James was 

required to consult with Mary prior to making all medical, psychological and educational 

decisions under Sections 153.132 and 153.074. 1SCR7-8. There was no language in the 2010 

Order that limited or conditioned his obligation to consult only “to the extent possible.” 1SCR7-
16

c. Modification 13 

Finally, James contends that the trial court did not modify Mary’s weekend 

periods of possession, because trial court only “switched the pick-up and delivery 

time.” 6

 Appellee’s Brief at 24. Yet, James concedes that Mary does, in fact,

receive less time with the children on the weekends. His argument rests on the 

assertion that it did not “significantly lessen Mary’s possession time.” Appellee’s 

Brief at 24. Yet, it still constitutes a modification that neither party requested. 

CR4-6; 1SCR36-44. By the trial court’s own admission, the decision to modify 

Mary’s weekend periods of possession was based on a preexisting court “policy”

that weekend visitations end on Sunday. 8RR125.

 

8. All of these exclusive rights were explicitly contingent upon James first consulting with Mary.

1SCR7-8. 

This language (“to the extent possible”) is only found in one of the parties’ mutual rights at all 

times under Section 153.073. 1SCR5-6. In the 2010 Order, each party had the right under 

153.073 to confer with the other parent “to the extent possible” before the initiating parent made 

a decision. 1SCR5-6. For example, under the 2010 Order, Mary had the right to consult with 

James before she made a decision concerning the welfare of the children. James has inexplicably 

transplanted that language to other parts of the 2010 order. 

 

6 Under the 2010 Order, Mary picked up the children on first, third and fifth Fridays of each 

month at 6:00 p.m. and returned the children to school the following Monday at the time school 

resumed. 1SCR12-13. Under the current order, Mary is allowed to pick up the children on 

Fridays from school, instead of 6:00 p.m. CR37-38. However, she lost her Sunday overnight 

periods of possession; she must now return the children to James on Sundays at 6:00 p.m. 

CR37-38.
17

V. Mary did not invite error on the question of attorney’s fees.

James’s argument regarding invited error is misplaced. A request for findings 

and conclusions that are adverse to an appellant’s position does not constitute 

invited error. To the contrary, this is a relatively common and sometimes 

necessary a step to preserve rights on appeal. An appellant must request additional 

findings on omitted elements to prevent them from being deemed on appeal. 

a. The trial court omitted elements from its findings of facts and 

conclusions of law.

 

In its final order, the trial court awarded James’s attorney a judgment for 

attorney’s fees, expenses and costs in the amount of $50,000. CR54. On March 

17, 2014, the trial court entered its Findings of Fact and Conclusions of Law, in 

response to Mary’s request. 4SCR37-39. In its conclusions, the trial court stated 

that the judgment for attorney’s fees in the amount of $50,000 was reasonable and 

necessary. 4SCR37-39. In its findings, the trial court found that its order was 

“based upon [Mary’s] past history” and “obstructionism.” 4SCR37-39. The trial 

court, however, did not state whether it awarded fees under Section 106.002 or 

Section 156.005 of the Texas Family Code. 4SCR37-39. 

These provisions constitute the two grounds of recovery of attorney’s fees in a 

modification. Section 106.002 requires a showing that the fees were reasonable 

and necessary. TEX. FAM. CODE §106.002. In comparison, a trial court shall award 

attorney’s fees under Section 156.005 if it finds that a suit for modification was 
18

frivolously filed or designed for the purpose of harassment. TEX. FAM. CODE

§156.005. While the trial court’s findings and conclusions included elements of 

each of the two grounds for recovery of attorney’s fees, the trial court omitted from 

its findings and conclusions elements that definitely awarded the fees under one or 

the other. This left Mary without guidance on appeal.

Mary subsequently asked the trial court to make findings on the omitted 

elements. 3CR3. James now contends that Mary invited error by requesting this 

clarification. In fact, Mary was required to submit her request and additional 

requests for findings of fact and conclusions of law. Any omitted findings 

regarding attorney’s fees would have jeopardized her success on appeal. 

b. Appellants must request additional findings on omitted elements.

Mary was required to request additional, specific findings and conclusions 

regarding attorney’s fees in order to demonstrate the trial court’s error. Rule 296 

of the Texas Rules of Civil Procedure require appellants to request findings of fact 

and conclusions of law. TEX. R. CIV. P. 296. After a court files its original 

findings, any party may file a request for additional or amended findings or 

conclusions. TEX. R. CIV. P. 298. When the findings and conclusion contain one 

or more elements of a ground of recovery, those omitted, unrequested elements 

will be supplied by presumption in support of the judgment. Tex. R. Civ. P. 299. 
19

An appellant must then request the omitted finding or conclusion, even if they 

are adverse to the appellant’s position. Otherwise, a court could presume any 

ground of recovery for which there are one or more elements already present in the 

trial court’s findings and conclusions. When a court inadvertently omits from its 

findings an essential element of a ground of recovery or defense, the presumption 

of validity will supply the omitted element by implication. TEX. R. CIV. P. 299. 

However, a missing element that has been specifically requested cannot be 

supplied by implication. Vickery v. Comm’n for Lawyer Discp., 5 S.W.3d 241, 253 

(Tex. App.—Houston [1st Dist.] 1999, pet. denied). Requests for findings and 

conclusions, therefore, provide a basis for overcoming the presumption of validity 

and demonstrating error on appeal. Id. As a result, they are normally requested by 

the appellant, even though those findings may be adverse to the appellant’s 

position. Id. 

Moreover, in order to avoid the presumption of validity, the appellant must 

make the specific omission clearly manifest to the trial court. Id. An appellant 

cannot make a general request for additional findings or conclusions; an appellant 

must submit to the trial court the specific finding or conclusion that was omitted. 

Id. Any requests by an appellant for findings or conclusions in support of their 

position on appeal are inappropriate, as a court is not required to make additional 

findings which conflict with the original findings. Id. Nor would a request for 
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conflicting findings be sufficient to overcome the presumption of validity, because 

they may not apprise the trial court that it has omitted an element. Id. 

Therefore, Mary’s request for findings and conclusions regarding attorney’s 

fees was necessary to her appeal. The trial court’s findings and conclusions 

contained elements of both Section 106.002 and Section 156.005. Had she not 

requested additional findings or conclusions regarding the trial court’s basis for 

attorney’s fees, a reviewing court could uphold the trial court’s award under either

ground of recovery. Bailey v. Rodriguez, 351 S.W.3d 424, 425-26 (Tex.App.—El 

Paso 2011, no pet.) (presuming that the trial court could have awarded fees under 

Section 106.002 and Section 156.005 when the trial court failed to make findings 

of fact and conclusions of law). Her request did not invite error, but was consistent 

with the Texas Rules of Civil Procedure and case law. James has failed to cite to 

any authority that a request for findings of fact and conclusions filed pursuant to 

the Texas Rules of Civil Procedure constitutes invited error.

VI. Orders regarding counseling or secondary health insurance. 

Finally, Mary wishes to briefly respond to James’s allegations that Mary 

misinformed this Court about the order for counseling. Appellee’s Brief at 9. He 

similarly alleges that Mary omits facts regarding the order that relieved Mary of 

the obligation to carry secondary health insurance. Appellee’s Brief at 10. This is 

simply inaccurate. 
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In regard to counseling, James has misconstrued and omitted relevant portions 

of Mary’s brief. In her brief to this Court, Mary stated that “[i]n response to Dr. 

Harrison’s recommendation, the trial court issued temporary orders for counseling 

for the children.” CR10; 6RR48-49, 87. This is an accurate summary of the 

record. On April 4, 2012, James’s expert witness, Dr. Harrison, testified that he 

recommended counseling for all of the children. 6RR48-49. At the end of the 

hearing, the trial court ordered the children to counseling (6RR87) and 

subsequently entered its order on April 9, 2013. CR10. In its final order, the trial 

court ordered that the parties’ youngest child continue in counseling. CR53.

It is also entirely accurate that prior to the trial court’s order on April 9th order, 

Mary had continuously sought and the court had considered her request for 

counseling for the children. CR72 (August 12, 2012 docket entry in which the trial 

court noted that it had taken the motion for counseling under advisement); 

1SCR40; 4RR72. It is also entirely accurate that James opposed Mary’s request 

for court-ordered counseling, despite the recommendations of his own expert 

witness. Throughout the suit, James explicitly stated he was opposed to courtordered counseling. 4RR8, 45.

In regard to the secondary health insurance, James claims that Mary omitted 

from her brief the fact that James had agreed to release Mary from her obligation to 

carry secondary health insurance, as long as Mary reimbursed him for the cost of 
22

the health insurance premiums. Appellee’s Brief at 10. Mary discloses this very 

fact on page 7 of her brief: “The parties, however, were unable to reach an 

agreement on the amount Mary should be required to pay to James for 

reimbursement of health insurance premiums for the health insurance available 

through James’s employer.” Appellant’s Brief at 7-8.

CONCLUSION AND PRAYER

For the foregoing reasons, the trial court’s order should be reversed. Mary 

Lynn Kantara Gerke respectfully requests that this Court reverse the trial court’s 

judgment and remand with explicit instructions to remove the Fourteen 

Modifications from the order and to restore the preexisting order. Further, Mary 

Lynn Kantara Gerke respectfully requests that this Court vacate the award of 

attorney’s fees under Sections 106.002 and 156.005 of the Texas Family Code. In 

the alternative, Mary Lynn Kantara Gerke respectfully request that this court 

remand for further proceedings to reconsider the award of attorney’s fees. 

Respectfully submitted,

LAURA DALE & ASSOCIATES, P.C.

/s/ Ashley V. Tomlinson

ASHLEY V. TOMLINSON

State Bar No. 24075170

1800 Saint James Place, Suite 620

Houston, Texas 77056

Phone: (713) 600-1717

Fax: (713) 600-1718
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CERTIFICATE OF COMPLIANCE

I hereby certify that this Reply Brief contains a total of 5,487 words, excluding 

parts of the brief exempted under Tex. R. App. P. 9.4(i)(1), as verified by 

Microsoft Word 2010. This Reply Brief is therefore in compliance with Tex. R. 

App. P. 9.4.(i)(2)(C).

/s/ Ashley V. Tomlinson

ASHLEY V. TOMLINSON

Counsel for Appellant, 

Mary Lynn Kantara Gerke
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CERTIFICATE OF SERVICE

I certify that on this 17th day of April 2015, a true and correct copy of this 

Brief of Appellant was served in accordance with Rule 9.5 of the Texas Rules of 

Appellate Procedure as follows:

Mr. Wilfried Schmitz

17040 El Camino Real, Suite 400

Houston, Texas 77058

VIA-E-FILE

Douglas York

3355 W. Alabama, Suite 100

Houston, TX 77098-1863

VIA E-FILE

/s/Ashley V. Tomlinson

ASHLEY V. TOMLINSON

Counsel for Appellant, 

Mary Lynn Kantara Gerke