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NO. 04-14-00547-CV 

______________________________________________________ 

IN THE COURT OF APPEALS 

FOURTH SUPREME JUDICIAL DISTRICT 

SAN ANTONIO, TEXAS 

______________________________________________________ 

IN THE INTEREST OF T.S.P.

______________________________________________________ 

 

ON APPEAL FROM 

THE COUNTY COURT AT LAW 

MEDINA COUNTY, TEXAS 

CAUSE NO. 07-06-4710-CCL 

HON. VIVIAN TORRES 

 ______________________________________________________ 

REPLY BRIEF FOR APPELLANT 

TAD DANA PERRY 

 ______________________________________________________ 

LAW OFFICE OF 

ROBERT J. BARRERA

424 East Nueva 

San Antonio, Texas 78205 

Telephone: (210) 244-5858 

Facsimile: (210) 224-5890 

Robert J. Barrera 

Texas Bar No. 01807500 

ATTORNEY FOR APPELLANT

TAD DANA PERRY 

ACCEPTED

04-14-00547-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/29/2015 2:25:10 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/29/2015 2:25:10 PM KEITH E. HOTTLE Clerk
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TABLE OF AUTHORITIES

Statutes Page

Texas Family Code § 157.162....................................................................................... 5,6,9 

Texas Rules of Evidence

Rule 201 ........................................................................................................................ 5,6,9 

Texas Rules Civil Procedure

Rule 65 ......................................................................................................6,7 

Cases

In the Interest of K.R., a Minor Child, 

No. 05-06-00885-CV (Tex.App.—Dallas 2007, pet. denied) (memo op.: 

07-23-07).......................................................................................................................... 7 
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ISSUE PRESENTED

1. Trial court erred in granting judgment on child support and medical 

support as the Attorney General Payment Record was improperly 

considered as evidence when it was never admitted during the trial and 

as the court took “judicial notice” of it improperly. Accordingly, there 

is no evidence to support the judgment on either the child support or 

the medical support awarded to Appellee. 

2. The trial court erred in ordering Appellant to pay a Civil Contempt 

fine of $2,500.00 to the clerk of [that] Court for the benefit of 

Marsalie Zinsmeyer”. Said order is void and unenforceable without 

regard to the lack of Motion for New Trial on that issue being filed. 
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SUMMARY OF ARGUMENT 

 At trial, Appellee’s burden was to establish by evidence properly admitted that she 

complied with the court ordered written notices necessary to sustain and trigger an increase in 

medical support by Appellant. No evidence was admitted to prove this condition precedent and 

the trial court concurred that there was no evidence “in the record” of when the increased health 

insurance amounts were due. As such appellant’s argument that there was no showing of 

compliance with the written notice provision has not been waived as there is no need, duty, or 

requirement to disprove an unproven fact. The Appellant’s failure to inform the Appellee of this 

evidentiary failure during trial does not constitute a waiver of that error. 

Appellees contention that Appellant waived his argument that the trial court improperly 

considered the Attorney General’s record fails for the same reason. Appellant agrees that the 

court may consider Attorney General’s record for its truth if it is properly admitted during the 

trial. In this case the Attorney General record was never offered nor admitted as evidence by 

Appellee. Accordingly, there is no evidence of the payment record for the court to consider for 

any purpose. The Appellant’s failure to inform the Appellee of this evidentiary failure during 

trial does not constitute a waiver of that error. 

The civil contempt fine issued to Appellant on August 20, 2013 is a void ruling. The 

court ordered the fine to be paid for benefit of Marsalie Zinsmeyer. The court does not have the 

authority to issue fines payable for the benefit of individuals. For this reason the ruling is void 

and unenforceable as a matter of law. 
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ARGUMENT AND AUTHORITIES 

ISSUE ONE: Trial court erred in granting judgment on child support and medical support 

as the Attorney General Payment Record was improperly considered as evidence when it 

was never admitted during the trial and as the court took “judicial notice” of it improperly. 

Accordingly, there is no evidence to support the judgment on either the child support or 

the medical support awarded to Appellee. 

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either 

(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate 

and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” 

TX R EVID Rule 201. Appellee cites § 157.162 of the Tex. Fam. Code in attempt to prove the 

accuracy of the report, the contents of which state as follows: 

(c) The movant may attach to the motion a copy of a payment record. The 

movant may subsequently update that payment record at the hearing. If a 

payment record was attached to the motion as authorized by this subsection, 

the payment record, as updated if applicable, is admissible to prove: 

(1) the dates and in what amounts payments were made; 

(2) the amount of any accrued interest; 

(3) the cumulative arrearage over time; and 

(4) the cumulative arrearage as of the final date of the record. 

(c-1) A respondent may offer evidence controverting the contents of a 

payment record under Subsection (c). 

Statutorily, it is clear that for the payment record even to be admissible, it must be 

attached to the pleadings. Conversely, the document is not even admissible by itself without 

compliance with Subsection (c) above and therefore could not be judicially noticed upon request 
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of any party. Further, it is inconsistent and a legal absurdity to apply the concept of “judicial 

notice” to a document which statutorily is authorized to be “controverted” by other evidence. See 

Tex. Fam. Code §157.162 (c-1). Clearly, the only logical application of Appellee’s argument is 

Tx. R. Evid. Rule 201 (2). However the logic is unsupported both statutorily and by the very 

definition the Appellee seeks to use to support his averment that the payment record facts in 

dispute “cannot reasonably be questioned.” 

By deeming this report admissible rather than admitted the legislature requires the 

movant to offer and admit the documents to the same degree as any other piece of evidence in 

the movant’s case. Appellee openly admits that the Attorney General Payment Records were 

never offered not admitted as an exhibit. He does so by arguing that since the Court took 

“judicial notice of the court’s file” (RR at 5) that he was relieved of the duty to offer and admit 

the record. Appellee then goes on to argue that since the undersigned failed to object to the 

introduction of the payment record, that the error is waived. All the statements referred to by 

Appellee regarding the payment records and the undersigned’s comments related thereto were 

made in “opening statements” (RR at 4). The comments of the Appellant’s counsel confirm the 

legal premise that the records are “admissible” and that the amounts reflected therein speak for 

themselves (RR at 6) however the Appellant’s counsel went on to object to the fact that the pay 

records were not attached to the amended motion for contempt which was the pleading being 

litigated in trial. The amended pleading at trial superceded and effectively negated the previous 

pleadings to which the payment records were attached. See Tx. R.Civ. Proc. R.65. Appellee 

acknowledges that the amended pleading has no payment record attached (RR at 6) and 

acknowledged that the payment record was not “updated at the hearing” {“was filed in January 

of this year” (RR at 5)} as required by §157.162(c). Accordingly, the payment record was never 
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attached to the amended pleading and was therefore never properly before the court for 

consideration, even arguendo, that the Appellee had sought to introduce it. Appellant’s attorney 

properly objected to “anything in excess of what he has pled” (RR at 6) and has therefore 

preserved any evidentiary objections to the evidence. The Court even acknowledged same for 

purposes of the issues related to the payment record. (RR at 7) 

Appellant, in previous brief, cited In the Interest of K.R., a Minor Child, No. 05-06-

00885-CV (Tex. App. – Dallas 2007) as evidence that a payment record must be entered into 

evidence. Appellee attempts to differentiate the present case from established precedent by 

showing that in In The Interest of K.R. a hearsay objection was made, and error was preserved, 

when the Attorney General attempted to introduce a payment record into evidence. In the 

present case the record was never attempted to be admitted into evidence. No objection was 

needed, nor could it even have been made since the event never occurred. 

In relation to the increased premiums for health insurance, Appellant’s counsel was 

cognizant of the evidentiary failures concerning both the conditions precedent to the increase in 

premium and to the failure to identify the dates upon which the alleged increase in premiums 

were supposed to start. Specifically, the Appellant’s counsel specifically requested separate 

findings on each issue. (RR at 180,181) The Appellant specifically pointed out (without 

specifying the lack of proof as to the written notices, and the dates which certified mail were 

supposed to be proven and admitted) that there was “no evidence in this record of when the 

increased amounts of child—of health insurance were due” (RR at 181). Even the Court 

acknowledged that fact by stating “You’re correct.” (RR at 181). The Court went on to state that 

all calculations were to be based “only to what has been presented in this courtroom as evidence 

under the rules of evidence and the special rule that deals with AG records that you have.” (RR 
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at 182). (Emphasis supplied by author) Based upon the Court’s own conditional evidentiary 

wording, if the evidence was not “presented in this courtroom” it could not be used as the basis 

of anyone’s calculations as to support payments allegedly due and owing. (RR at 182). 

 This court should additionally consider that the trial judge was “about as clear as 

mud” (RR at 133) as to what payments were being used to calculate the alleged totals. The 

entirety of the contents of Reporter’s Record at 134 consists of the objections to the pleadings 

that the court was attempting to consider as “evidence” which included the Appellee’s 

“spreadsheet” based upon the Attorney General’s payment record. The spreadsheet itself, though 

marked as “Petitioner’s 3” was never admitted as evidence. Even the Court opined that Appellee 

could make better “use of your time”. (RR at 146). The record is replete with commentary that 

the Court took “judicial notice” of the Attorney General records. (RR at 134, 137, 147,) so 

rationally, the Court assumed that they were introduced as evidence as well when the record 

shows that they were not. The Court admittedly took judicial notice of the Attorney General 

payment records which it cannot do, either by definition or statute. 

The gravamen of the Appellee’s brief and response to Appellant’s argument is as follows: 

Because the Appellant’s counsel failed to point out to the Court during trial all of the evidentiary 

failures of the Appellee’s case, the Appellant is barred from complaining about what the Court 

considered in making its ruling. Put another way: If Appellant’s counsel had only informed the 

Appellee of what evidence was needed to prove her case, the Appellee would have had the 

opportunity to remedy the evidentiary failure during the trial. The Appellant’s counsel can only 

object to the introduction of evidence when the evidence is sought to be introduced! Had 

Appellant’s counsel informed the Court and Appellee during the trial that the payment record 

should have been introduced as an exhibit, certainly the Appellee would have then done so. 
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Further, had Appellant’s counsel informed the Court and Appellee during the trial of what the 

conditions precedent to the increase in medical support payments were lacking, certainly the 

Appellee would have attempted to correct this evidentiary failure. Appellant’s counsel was under 

no obligation to educate either the Appellee or the Court during the trial of what was missing in 

order for the Court to make an adverse ruling against the Appellant. 

It is undisputed that the Attorney General payment records can be admitted as evidence if 

they are attached to the live pleadings on file at the time of trial and they are admitted in 

evidence as an exhibit. It is further undisputed that they were not attached to the “amended 

pleading” at the time of trial but were in fact filed attached to a superceded pleading or filed by 

themselves two (2) months before the amended pleading was filed. Additionally, they were never 

marked nor offered in evidence. As such, the Appellee failed to comply with the statutory 

requirements of Tx. Fam. Code. §157.162; and Tx. Rule Civ. Proc. Rules 62-65. It is further 

undisputed that both Appellee and the trial Court concluded that the trial Court had the authority 

to take “judicial notice” of the “pleadings on file” which included the authority to consider the 

Attorney General payment records as “evidence” simply by their being attached to the pleadings. 

The trial court relied upon the records in drawing her conclusion that “you (Appellee’s counsel) 

have everything you need already” (RR at 147) to prove your case. Clearly, without the payment 

record, the court would have no ability to draw any conclusion as to the amount of child support 

or medical support due and owing. 

The court’s decision to afford any weight to facts not in evidence constitutes fundamental 

error and requires a reversal of the judgment rendered against the Appellant. 
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ISSUE TWO: 

The trial court erred in ordering Appellant to pay a Civil Contempt fine of 

$2,500.00 to the clerk of [that] Court for the benefit of Marsalie Zinsmeyer”. Said order is 

void and unenforceable without regard to the lack of Motion for New Trial on that issue 

being filed. 

Appellee points to the fact that appeals to court orders must be made within 30 days from 

the date judgment is signed. This is true in most cases, but does not apply when the court’s 

ruling is void. The civil contempt fine issued August 20, 2013 constitutes a void ruling. The 

fine in question was ordered to be made payable for the benefit of Marsalie Zinsmeyer 

(Appellee). The court lacks authority to make civil contempt fines payable for the benefit of any 

party to the suit. This lack of authority renders the $2500 fine issued against appellant on August 

20, 2013 void and the thirty day (30) day deadline is inapplicable to this void order. 

Respectfully submitted, 

ROBERT BARRERA P.C. 

424 East Nueva 

San Antonio, Texas 78205 

Telephone: (210) 244-5858 

Facsimile: (210) 224-5890 

________/S/_________________ 

ROBERT J. BARRERA 

State Bar No. 01807500