IN THE COURT OF APPEALS

FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

NO. 01-15-00010-CV

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:

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72034

E-mail: nchaudhriwood@cordelllaw.

com

Bryan L. Abercrombie

State Bar No. 24029411

E-mail: babercrombie@cordelllaw.

com

Attorneys for Appellant

ORAL ARGUMENT REQUESTED

ACCEPTED

01-15-00010-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/8/2015 5:17:36 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 4/8/2015 5:17:36 PM CHRISTOPHER A. PRINE Clerk
/

IDENTITY OF PARTIES AND COUNSEL

Pursuant to the Texas Rule ofAppellate 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

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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 ofParties and Counsel.1

II. Table of Contents.3

III. Index ofAuthorities.5

IV. Statement ofthe Case..7

V. Issues Presented.8

VI. Statement ofFacts.. 9

VII. Summary ofArgument.. 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 ofReview.. 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 bi

rthday 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

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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 ofTex., 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

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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

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Statement ofthe Case

This appeal arises rom a suit for indefinite support of an adult child filed by

Appellee Karen Smith (hereinater 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.

C.

R. 52. Appellant sought mandamus relief rom this Court and the Supreme

Court ofTexas, 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 (hereinater "

J.

L.T.

"

) indefinitely. C.R. 234-241.

Appellant requested and was denied a new trial (C.R. 254-261, 268-269), and

timely filed notice ofthis appeal on January 7, 2015. C.R. at 296-297.

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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?

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Statement ofFacts

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 Petitionfor 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 -

. J.

L.

T is capable of communicating with others (2 R.R. 20:21-21:8, 66:15-

78:24);

. J.

L.T. is competent to testify as a witness and be placed under oath (2 R.R.

66:11-17);

. J.

L.T. can dress herselfwithout assistance (2 R.R. 68:2-6), but benefits from

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being reminded to engage in good personal hygiene (2 R.R. 22:20-23:9);

. J.

L.T. has poor eyesight and hearing (2 R.R. 21:15-18), walks on her 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);

. J.

L.

T. is under the care of a psychiatrist for reasons unrelated to her alleged

disability (2 R.R. 26:3-7, 59:2-8);

. J.

L.

T. 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);

. J.

L.T. lives with Appellee and has never been given the opportunity to live

on her own (2 R.R. 21:20-24, 57:4-5);

. J.L.

T. 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);

. J.

L.T. is eligible to vote (2 R.R. 49:12-13); and

. J.L.T. is of sufficient intelligence and mental capability to understand and

sign a Power ofAttorney (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.

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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

R.R. 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 ofAppellee 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 ofthis appeal. C.R. 296-

297.

Summary ofthe 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

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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 ofdiscretion.

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 ofReview

A court,s order regarding child support may be overturned on appeal ifthe

complaining party can show a clear abuse of discretion. Worford v. Stamper, 801

S.W.

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.

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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

S.

W.

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 offact

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 ofthe 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 offact 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.

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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 insuficient 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. Speciically, 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 ofthe 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 rom 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

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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 ofinfancy or lack of soundness ofmind." 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

R.

R. 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 ofgetting dressed without assistance (2 R.

R. 68:2-6);

. She has poor eyesight and hearing (2 R.

R. 21:15-18), walks on her

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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 ofAttorney (2 R.R. 55:18-56:1).

Using the common meanings ofthe 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 ofthe impairments rom 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 timerame on when the incidents occurred in the twelve years since

J.

L.T. turned 18 (2 R.R. 22:14-16, 83:6-17). Appellee further failed to provide any

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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 ofthe adult

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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 ofthe 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 ofthe child, and that she had been taking

care ofthe 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

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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

rom 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 ofthe adult child or provides or will provide

substantial care and personal supervision for J.L.T. Appellee testiied 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

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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 ofher 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 ofthree ofthe 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 ofthe 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.

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Respectfully Submitted,

CORDELL & CORDELL, P.C.

1330 Post Oak Boulevard, Suite 1800

Houston, Texas 77056

Tel: (832) 730-2969

Fax: (832) 730-2970

By:

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E-mail: nchaudhriwood@cordelllaw.

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Bryan L. Abercrombie

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Attorneys for Appellant

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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 ofAppellate Procedure.

Nida C. Wood

SWORN TO AND SUBSCRIBED day of

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Certificate ofService

I certify that a true copy ofthe 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

Certiicate 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

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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 ofthe Order For Support ofAdultDisabled Child.

2. A certified copy ofthe 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 ofthe Order For Support ofAdult Disabled Child.

A-3. A certified copy ofthe Finding ofFact and Conclusions ofLaw.

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
IN THE INTEREST OFt

ADULT CHILD.

NO. 2013-03434

lima-_Srt&Cgu

IN THE FAMILeDISTMCTCO.

HARRIS COUNTY, TEXAS

f;

S

1-

file

~

n

Chris De;ii .} 1 . Districi C:i "

>

SEP 0 5 20W tP

246TM JUDICIAL DISTRICT

ORDER FOESUPPORT OF ADULT DISABLED CHILD

On August 13 and 14,2014, the Court heard the Petition for Support ofAdult Disabled

Child iled by KAREN SMITH, Petitioner.

Appearances

Petitioner, KAREN SMITH, appeared in person and through atorney ofrecord, 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 fortial.

Jurisdiction

The Court, after examining the pleadings and hearing the evidence and argument of

counsel, inds that it has jurisdiction ofthis case and of all the parties and that no other court has

continuing, exclusive jurisdiction, Ajury was waived, and all questions offact and oflaw were

submitted to the Cout. All persons entitled to citation were properly cited.

Record

A record oftestimony was duly reported by Jenine Redden on August 13,2014 and by

Alexandra McMillen on August 14,2014.

Filings

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fself-support.'

<£>

RECORDER'S MEMORANDUM This ,nstrumerit is ofpoor quality trie time ofimaging 234
The Court furtherfinds that the child the subject ofthis suit is over the age ofeighteen

years, and the disability exists now and existed on or before the eighteenth birthday ofthe child.

SuppotOrder

IT IS ORDERED that MARK THOMPSON, SR. is obligated to pay and shall pay to

KAREN SMITH child support ofTHREE 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 ofeach month thereafter until the first month following the

date ofthe earliest occurrence ofone ofthe events specified below:

the child dies; or

2.

further order modifying this child support. ( /h <L / o°>/

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 thereater promptly remitted to KAREN SMITH for the support ofthe child.

WithholdingFrom Earnings

IT IS ORDERED that any employer ofMARK THOMPSON, SR. shall be ordered to

withhold from earnings for child support from the disposable earnings ofMARK THOMPSON,

SR. for the suppot 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. Paymentofthe full

amount ofchild support ordered paid by this decree through the means ofwithholding rom

earnings shall discharge the child support obligation. Ifthe amount withheld from earnings and

credited against the child support obligaion is less than 100 percent ofthe amount ordered to be

235
paid by this decree, the balance due remains an obligation ofMARK THOMPSON, SR., and it is

hereby ORDERED that MARK THOMPSON, SR. pay the balance due directly to the state

disbursement unit as speciied 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 thereater promptly remitted to KAREN SMITH for the support ofthe child.

IT IS FURTHER ORDERED that MARK THOMPSON, SR. shall notiy this Court and

KAREN SMITH by U.S. certified mail, return receipt requested, ofany change ofaddress and

ofany termination ofemployment. This notice shall be given no later than seven days ater the

change ofaddress or the termination ofemployment. This notice or a subsequent notice shall

also provide the current address ofMARK THOMPSON, SR. and the name and address ofhis

current employer, whenever that information becomes available

IT IS ORDERED that, oni the request ofa prosecuting attorney, the title 1V-D agency, the

friend ofthe Court, a domestic relations ofice, KAREN SMITH, MARK THOMPSON, SR., or

an attoney representing KAREN SMITH or MARK THOMPSON, SR., the clerk ofthis Court

shall cause a certiied copy ofthe Income Withholding for Support to be delivered to any

employer.

AdditionalChMSuppmi

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 ofMARKTHOMPSON, SR., as his adult child who became disabled before

oillÿpars, lispwded andasisavailabie underHederallaw.

#"

236
IT IS ORDERED that MARK THOMPSON, SR. shall assist and accompany KAREN

THOMPSON, as an adult disabled child claiming through MARKTHOMPSON SR.,s Social

Security earnings record.

IT IS ORDERED thatthe application shall be completed to take effect on September 1,

2015, the date ofMARK THOMPSON SR.'s full eligibiliyfor Social Security benefits.

benefit of

that all jjEÿmentsmadebyihe

PSON shaH-btfdirected t

Possession orAccess

The Court finds that the following provisions for possession ofor access to JENNIFER

THOMPSON are m the best interest ofthe child:

In the absence ofother mutual agreement ofthe parties, MARK THOMPSON., SR. shall

have the right ofpossession ofor access to on Sunday ofeach week,

beginning at 1:00 p.m. and ending at 3:00 p.m. P* ÿ (*rV' P ÿ6 ÿ"

"

tlrx. S-4 Vt*<4-A/v<U. ttru

RequiredInformaion

section 105.006(a) ofthe Texas Family Code

is as follows:

Name: KAREN SMITH

Social Security number: XXX-XX-X430

Diver's license number and issuing state: XXXXX407 Tessas

finrrentresidence address: 709 CR401

Dayton, Texas 77535

709 CR 401

Dayton, Texas 77535

-4-

237
Home telephone number: (281) 576-5930

Name ofemployer: Not employed

Address ofemployment: Not applicable

Work telephone number: Not applicable

Name: MARK THOMPSON, SR.

Social Security number*? XXX-XX-X526

Driver,s license number and issuing state: XXXXX248

Current residence address: 1800 James Bowie Dr. #85

Baytown, Texas 77520

1800 James Bowie Dr. #85

Baytown, Texas 77520

Home telephone number: (716) 536-2116

Name ofemployer: Compass Engineering Corporation

Address ofemployment: 1061 Planters Lane

Greensboro, Georgia 30642-4898

Work telephone number: (8001431-3429

Mam®

Social Secuity mme XXX-XX-X

Identification number and issuing state: XXXXX

Noices

EACH PERSON WHO IS A PARTY TO THIS ORDER IS ORDERED TO NOTIFY EACH OTHER

PARTY, THE COURT, AND THE STATE CASE REGISTRY OFANY CHANGE IN THE PARTY,S

CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE NUMBER, NAME OF

EMPLOYER, ADDRESS OF EMPLOYMENT, DRIVER'S LICENSE NUMBER, AND WORK

TELEPHONENUMBER, THE PARTY IS ORDERED TO GIVE NOTICE OF AN INTENDED CHANGE IN

ANY OF THE REQUIRED INFORMATION TO EACH OTHER PARTY ON OR BEFORE THE 60TH DAY

238
>v

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 deliveing a copy ofthe notice to the paty by

registered or certiied mail, return receipt requested. Notice shall be given to the Court by

delivering a copy ofthe notice either in person to the clerk ofthis Court or by registered or

certiied 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 ofthe notice to State Case Registry, Contract

Services Division, MC046S, P.O. Box 12017, Austin, Texas 78711-2017.

Notice to any peace officerofthe state of Texas: You may use

REASONABLE EFFORTS TO ENFORCE THE TERMS OF CHILD CUSTODYSPECIFIED IN THIS

ORDER, A PEACE OFFICER WHO RELIES ONOE TERMS OF A COURT ORDER AND THE

OFFICER,S AGENCY ARE ENTITLED TO OE 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 ORNO 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 ofa party to make achild supportpaymentto 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 OFA 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 ofcourt are to be borne by the party who incurred them.

ReliefNot Granted

IT IS ORDERED that all reliefrequested in this case and not expressly granted is denied.

Date ofOrder

This orderjudicially 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.

SallyAJ 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.

tiroacMct

Nida Chaudhi 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 ÿt */

State BarNo. 24029411 <cTV

1330 Post Oak Blvd., Suite 1800

Houston, Texas 77056

(832) 730-2965

FAX (832) 730-2966

babercrombie@.cordelllaw,com

Attorneys for Respondent
APPENDIX A-3

In re: Mark Thompson, Sr.-Appellant
FILED j),

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Time:. Harris Taxes

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Judge,

246thDistrictCourt Cÿivil Courts Blog.

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(713) 274-4500 J R01"'ÿ' 1 ®T" Floor FAMILY LAW AND CIVIL TRIAL LAW Houston, Texas 77002 TEXAS BOARD OF LEGAL SPECIALIZATION

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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

RELATIONSHIPAND THE SUITAFFECTING 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 cout may order either or both parents to provide for the suppot of a child for an indefinite period and may

determine the rights and duties of the parents if the cout 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 bithday 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 cout may

designate a child who is 18 years of age or older to receive the suppot 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 Suppot: 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

RELATIONSHIPAND THE SUITAFFECTING 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 suppot 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 ofthe 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 suppot, 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 Suppot: 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 suppot 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: 'ypes: 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 suppot was without meit. In pat, the cout 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 paty 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