in Re Connie Harrison — freecase.ai

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in Re Connie Harrison

ACCEPTED 14-15-00273-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/27/2015 8:30:39 AM CHRISTOPHER PRINE CLERK

14-15-00273-CV NO. ______________ FILED IN 14th COURT OF APPEALS __________________________________________________________________ HOUSTON, TEXAS 3/27/2015 8:30:39 AM IN THE COURT OF APPEALS CHRISTOPHER A. PRINE FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS Clerk _________________________________________________________________

IN RE: CONNIE V. HARRISON __________________________________________________________________

PETITION FOR WRIT OF MANDAMUS __________________________________________________________________

Lana Shadwick State Bar No. 00784951 2210 Norfolk, Suite 920 Houston, Texas 77098 Telephone: (713) 392-8222 Telecopier: (713) 622-6334 Lana@LanaShadwick.com Attorney for Relator, Connie V. Harrison

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Preamble

COMES NOW Connie V. Harrison, Relator herein, who respectfully files this, her Petition for Writ of Mandamus. In this Petition, Ms. Harrison will be referred to as “Ms. Harrison,” and her ex-husband Cliff Harrison, will be referred to as “Mr. Harrison.”

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Identity of Parties and Counsel

Pursuant to Tex. R. App. Pro. 52.2, Ms. Harrison identifies the following parties and counsel:

Relator and her Counsel: Connie V. Harrison Represented by: Lana Shadwick State Bar No. 00784951 Respondent: Judge Alicia K. Franklin Presiding Judge, 311th District Court 201 Caroline, 8th Floor Houston, Texas 77002 Telephone: (713) 274-4580 Real Parties in Interest and his Counsel: Cliff Harrison Represented by: Schlanger, Silver, Barg & Paine LLP Patricia A. Wicoff State Bar No. 21422500 Amy Harris State Bar No. 2401057 109 North Post Oak Lane, Suite 300 Houston, Texas 77024 Telephone: (713) 735-8514 Telecopier: (713) 351-4514

Amicus Attorney: Heather Hughes State Bar No. 00796794 952 Echo Lane, Ste. 475 Houston, Texas 77024 Telephone: (713) 463-5505 Telecopier: (713) 463-5213

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Table of Contents Preamble......................................................................................................................i Identity of Parties and Counsel ................................................................................ iii Table of Contents .................................................................................................. iv-v Index of Authorities ................................................................................................... 6 Statement of the Case................................................................................................. 7 Statement of Jurisdiction............................................................................................ 8 Sole Issue Presented ................................................................................................... 8

The Honorable Judge Franklin committed a clear abuse of discretion in refusing to render judgment based on the parties’ mediated settlement agreement found in Appendix 1 which dealt with all issues involving the children save and except management of their college funds.

Statement of Facts ...................................................................................................... 8 Arguments and Authorities ...................................................................................... 12 Sole Issue Presented ................................................................................................. 12

The Honorable Judge Franklin committed a clear abuse of discretion in refusing to render judgment based on the parties’ mediated settlement agreement found in Appendix 1 which dealt with all issues involving the children save and except management of their college funds.

I. Introduction............................................................................................13

II. The Standard Of Review………………….…………………………..14

III. Texas Family Code Section 153.0071(e) Entitles Relator To A Judgment On the Mediated Settlement Agreement…………………15

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A. Texas Family Code Section 153.0071………………………..………..16

B. The Texas Supreme Court Settled The Issue In In re Stephanie Lee – Mediated Settlement Agreements Are To Be Enforced……………17

C. Texas Family Code 153.001(a) Expresses Public Policy of Texas That Parents Should Be Able To Make Decisions About Their Children..................................................................................................22

IV. Conclusion – Ms. Harrison Is Entitled To Entry Of The MSA Order And A Stay Of The March 27, 2015 9 a.m. Entry Of The Trial Court’s Rendition That Does Not Adopt The MSA...........................................22

Conclusion and Prayer ............................................................................................. 24 Certificate of Conference ......................................................................................... 25 Certification ............................................................................................................. 25 Certificate of Service ............................................................................................... 26 Certificate of Compliance ........................................................................................ 26 Appendix………………………………………………………………………27-28

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Index of Authorities Cases

Acker v. Texas Water Comm’n, 790 S.W.2d 299 (Tex. 1990)………………………………………………………16

Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012)………………………………………………………16

City of DeSoto v. White, 288 S.W.3d 389 (Tex. 2009)……………..………………………………………..16

In re Gonzalez, 981 S.W.2d 313 (Tex. App.—San Antonio 1998, pet. denied)…………………….26

In re Stephanie Lee, 411 S.W.3d 445 (Tex. 2013)……………...…………………………………..passim

Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011)………………...…………………………………….16

Perkins v. City of San Antonio, 293 S.W.3d 650 (Tex. App.—San Antonio 2009, no pet.)………………………..25

Texas Dep’t of Protective & Reg. Srvcs v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004)………………………………………………………16

Texas Statutes Tex. R. Civ. P. 21………………...……………………………………………….25 Tex. Fam. Code sec. 157.0071………………………………...……………..passim Tex. Fam. Code sec. 153.001(a)…………………………………………………..24 Tex. Gov’t Code sec. 311.026……………………………………………………16 *7 TO THE HONORABLE COURT OF APPEALS:

Relator, Ms. Connie V. Harrison, files this petition for writ of mandamus. Ms. Harrison asks this Court to issue a writ of mandamus to Judge Alicia Franklin, Presiding Judge of the 311th Judicial District Court of and for Harris County, Texas, compelling Judge Franklin to enter judgment based upon the mediated settlement agreement found in Appendix 1 to this petition for writ of mandamus, and to stay the entry of judgment on March 27, 2015 at 9 a.m., based on the Judge Franklin’s rendition of February 13, 2015 found in Appendix 2. In support of her prayer, Relator, Ms. Harrison would respectfully show this Honorable Court as follows.

STATEMENT OF THE CASE

The Petitioner is Mr. Harrison, referred to here as (“Mr. Harrison”) and Respondent is Connie Harrison, referred to here as (“Ms. Harrison”). The parties reached a Mediated Settlement Agreement (“MSA”) on all matters dealing with their children on January 29, 2014. Appendix 1 (MSA). In the MSA, Ms. Harrison has joint custody with Mr. Harrison. According to the MSA, Ms. Harrison is the primary care parent and the children live with Ms. Harrison in Harris County, Texas. Ms. Harrison and Mr. Harrison, along with their counsel signed and agreed to all provisions of the MSA.

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Relator, Ms. Harrison, seeks relief from Judge Franklin’s entering judgment on March 27, 2015 at 9 a.m. based on her February 13, 2015 rendition (Appendix 2) that fails to incorporate the parties’ MSA as to parent-child issues.

STATEMENT OF JURISDICTION

The basis of this Court’s jurisdiction is section 22.002(a) of the Texas Government Code. This section confers jurisdiction on this Court to issue writs of mandamus agreeable to the principles of law regulating those writs, against a district judge.

SOLE ISSUE PRESENTED

The Honorable Judge Franklin committed a clear abuse of discretion in refusing to render judgment based on the parties’ mediated settlement agreement found in Appendix 1 which dealt with all issues involving the children save and except management of their college funds.

STATEMENT OF FACTS

Background Overview: The divorce action was filed in 2006. The case was tried to a jury beginning in March 2010 and ending in April 2010. Respondent appealed the final order in September 2010. In December 2012, the Fourteenth Court of Appels reversed and remanded the case to the trial court for a new trial, with the exception that the appellate court affirmed the divorce between the parties as of June 2010. The parties participated in mediation and signed a mediation *9 agreement on January 29, 2014. Appendix 1. On April 10, 2014, the Court signed an order to comport with the mediated settlement agreement. Appendix 2. Trial was conducted in January 2015 wherein Ms. Harrison was forced to proceed pro se. Ms. Harrison has repeatedly motioned for attorney’s fees, and even though the community estate is sizable, she has not been awarded attorney’s fees. On January 16, 2015, Ms. Harrison was ordered to pay the Amicus Attorney over $14,000.00. The Court also awarded on October 24, 2014 that monies in the registry of the Court in the amount of $14,421.31 be awarded to the Amicus Attorney.

 Jan. 29, 2014: Mediated Settlement Agreement Signed - Appendix 1

Mr. Harrison and Ms. Harrison reached a Mediated Settlement Agreement (“MSA”) on all matters dealing with their children on January 29, 2014. Appendix 1 (MSA of January 29, 2014). In the MSA, Ms. Harrison has joint custody with Mr. Harrison. According to the MSA, Ms. Harrison is the primary care parent and the children live with Ms. Harrison in Harris County, Texas. Ms. Harrison and Mr. Harrison, along with their counsel signed and agreed to all provisions of the MSA. The MSA addressed all issues involving the children save and except management of their college funds. See Appendix 1. ). The MSA contained all the statutorily required language for a valid and enforceable MSA.

 March 7, 2014 – Emergency Motion For Enforcement of MSA Filed By Mr. Harrison - Appendix 5

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 March 12, 2014 – Emergency Motion To Enter Order Filed By Amicus Attorney - Appendix 6

 April 4, 2014 – Mr. Harrison filed Motion to Enter MSA – Appendix 8

 April 10, 2014 – MSA incorporated into Agreed Order on Parent-Child Issues and it was signed by the Court – Appendix 3 & 4

On April 10, 2014, the 311th Court entered the MSA and incorporated the MSA into the Agreed Order on Parent-Child Issues and the parties operated under this Order. See Appendix 3 (Agreed Order) & 4 (transcript of hearing).

 May 30, 2014 – Hearing on Motion to Enforce MSA – Appendix 9.

On May 30, 2014 in a hearing before the Court, counsel for Ms. Harrison stated to the Court “We are asking this Court to enforce the MSA as written as I argued during my opening summary.” Appendix 9, pg. 6 (Hearing transcript of 5/30/14). Mr. Harrison was questioned about “prior acts or criminal factors” and “a criminal conviction for family violence” but Mr. Harrison replied that there was not, “There was a dismissal. Deferred adjudication and a dismissal.” He also testified that he received deferred adjudication on an assault and battery charge and the charge was dismissed. Id. at pg. 7.

 September 3, 2014 – Hearing Before Associate Judge Without Notice To Ms. Harrison Resulting In Mr. Harrison Being Appointed SMC and Ms. Harrison Having Supervised Visitation – Appendix 10

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On September 3, 2014, a hearing was heard and the Associate Judge ordered that Ms. Harrison be “immediately, instanter removed as a joint managing conservator” and ordering that Mr. Harrison “immediately, instanter appointed the temporary sole managing conservator.” The order further provides that Mr. Harrison was to have “the exclusive right to all periods of possession and access with the children,” and that Ms. Harrison “shall not have any periods of possession and/or access to the children until further order of the Court or by written agreement of the parties and the attorneys.” The order also terminated Mr. Harrison’s obligation to pay child support. Ms. Harrison was not represented by counsel. Appendix 10. Ms. Harrison tells Counsel she was not given notice and she was not served concerning the matters conducted during the September 3, 2014 hearing.

 September 8th, October 24th, 2014 – Respondent Requested a De Novo Hearing and Appeal of the Associate Judge’s Ruling – Appendix 12 & 13

On September 8th and October 24th, 2014, Respondent timely filed a Request For De Novo Hearing And Appeal To The District Court appealing the September 3, 2014 hearing and Order of the Associate Judge. Although there is a notice of hearing in the district court records, Ms. Harrison tells counsel she did not receive a de novo hearing of the Associate Judge’s order.

 January 14th and January 16, 2015 - Ms. Harrison Asked The Court To Enter MSA But Was Denied An Opportunity To Present Evidence – Appendix 14 January 16th, 2014 Trial Transcript

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On January 16th, Ms. Harrison asked the trial court to enforce the MSA and the trial court denied her request. Appendix 14.

 January 20, 2015 – Ms. Harrison filed Emergency Motion To Enforce

MSA – Appendix 16.

On the morning of January 20, 2015, Ms. Harrison filed another motion to enforce the MSA, she told the Court that she had filed the Motion and wished to urge the motion and her Motion was perfunctorily denied. See Appendix 15, pg. 4 (Trial transcript excerpt). The trial court continued the court trial and did not allow Ms. Harrison to put on evidence as to the MSA. Ms. Harrison also filed an Emergency Motion for Continuance.

 February 13, 2015 – Trial Court’s Rendition Giving Mr. Harrison

SMC – Appendix 2.

On February 13, 2015, the Judge's Rendition gave sole managing conservatorship (“SMC”) to Mr. Harrison and gave possessory conservatorship (“PC”) to Ms. Harrison with only supervised visitation.

ARGUMENT AND AUTHORITIES

SOLE ISSUE PRESENTED

Honorable Judge Franklin committed a clear abuse of discretion in refusing to render judgment based on the parties’ mediated settlement agreement found in Appendix 1 which dealt with all issues involving the children save and except management of their college funds.

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I. Introduction

The parties in this case were ordered to mediation and concluded the mediation by reaching a mediated settlement agreement and signing off on that MSA (all parties and counsel). The MSA contained all the statutorily required language for a valid and enforceable MSA.

The first page of the mediated settlement agreement contains the following sentence, which appears in bold, capitalized and underlined print:

“THIS MEDIATED SETTLEMENT AGREEMENT IS BINDING AND IS NOT SUBJECT TO REVOCATION.” Appendix 1 at pg. 1.

The parties, their counsel, and the amicus attorney signed the MSA after reading the following admonishment: “I HAVE READ, UNDERSTAND, AND I CONSENT TO ALL OF THE TERMS OF THIS BINDING AND IRREVOCABLE MEDIATED SETTLEMENT AGREEMENT. I UNDERSTAND I HAVE THE RIGHT TO CONSULT WITH LEGAL COUNSEL BEFORE SIGNING THIS DOCUMENT.” Appendix 1 at pg. 3.

The MSA contains all of the necessary terms as it relates to parent-child issues save and except management of the children’s college fund. Appendix 1 at pg. 2-3 and Exhibit A attached to the MSA.

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II. The Standard Of Review The issue in this case involves the statutory interpretation of Texas Family Code section 153.0071 governing mediated settlement agreements. The Texas Supreme Court has held that questions of statutory construction are reviewed de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). The fundamental objective in interpreting a statute is “to determine and give effect to the Legislature’s intent.” Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012). The Statutory Construction Act mandates that courts give effect to the clear meaning of the words in a statute. Tex. Gov’t Code sec. 311.026. The primary objective of statutory interpretation when a statute is unambiguous is to determine legislative intent by examining the statute’s plain language. City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it. Acker v. Texas Water Comm’n, 790 S.W.2d 299, 301 (Tex. 1990). If the statutory text is unambiguous, a court must adopt the interpretation supported by the statute’s plain language unless that interpretation would lead to absurd results. Texas Dep’t of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004).

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III. Texas Family Code Section 153.0071(e) Entitles Relator To A Judgment On the Mediated Settlement Agreement

Section 153.0071(e) entitles Relator, Ms. Harrison, to judgment on the mediated settlement agreement. In its wisdom, the Texas Legislature provided a solution for resolution of family law matters and empowered individuals to make decisions that are in the best interest of them and their children. In enacting section 153.0071 of the Texas Family Code, the Legislature not only empowered individuals to make decisions for themselves and their children, but also provided a way whereby they could come to agreements without protracted litigation and its concomitant expense. See Tex. Fam. Code Ann. sec. 153.0071. Other Texas statutes also reflect the general public policy of the state “to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.” Tex. Civ. Prac. & Rem. Code sec. 154.002. In accordance with that policy, the Legislature enacted Texas Family Code section 153.0071 to address the resolution of suits affecting the parent-child relationship.

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A. Texas Family Code Section 153.0071

Entitled “Alternate Dispute Resolution Procedures,” section 153.0071 of the Texas Family Code provides in pertinent part:

(a) On written agreement of the parties, the court may refer a suit affecting the parent-child relationship to arbitration. The agreement must state whether the arbitration is binding or non-binding.

(b) If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator's award unless the court determines at a non-jury hearing that the award is not in the best interest of the child. The burden of proof at a hearing under this subsection is on the party seeking to avoid rendition of an order based on the arbitrator's award.

(c) On the written agreement of the parties or on the court's own motion, the court may refer a suit affecting the parent-child relationship to mediation.

(d) A mediated settlement agreement is binding on the parties if the agreement:

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and

(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.

(e) If a mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

(e–1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that:

(1) a party to the agreement was a victim of family violence, and that circumstance impaired the party's ability to make decisions; and (2) the agreement is not in the child's best interest.

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Tex. Fam. Code Ann. sec. 153.0071(a)-(e-1) (emphasis added).

Subsection (d) provides that an MSA is binding on the parties if it is signed by each party and by the parties’ attorneys who are present at the mediation and states prominently and in emphasized type that it is not subject to revocation. Id. sec. 153.0071(d). Subsection (e) goes even further, providing that a party to an MSA is “entitled to judgment” on the MSA if it meets subsection (d)’s requirements. Id. sec. 153.0071(e). Subsection (e-1) provides a narrow exception to subsection (e)’s mandate, allowing a court to decline to enter judgment on even a statutorily compliant MSA if three conditions are met: (1) a party to the agreement was a victim of family violence; (2) the violence impaired the party’s ability to make decisions; and (3) the agreement is not in the best interest of the child.

B. The Texas Supreme Court Settled The Issue In In re Stephanie Lee – Mediated Settlement Agreements Are To Be Enforced

In In re Stephanie Lee, the Texas Supreme Court had before it on petition for writ of mandamus, the issue of “whether a trial court abuses it discretion in refusing to enter judgment on a statutorily compliant mediated settlement agreement (MSA).” See In re Stephanie Lee, 411 S.W.3d 445 (Tex. 2013). The trial court had refused to enter the MSA on best interest grounds. The Relator in the case argued that she was “entitled to judgment on the [MSA] because it met the statutory requirements under section 153.0071 of the Family Code. The Judge had denied enforcement on the MSA on the basis that a registered sex offender was living in her home.

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The Texas Supreme Court noted that the issue before the Court was one of first impression. There was a split among the intermediate appellate courts. Id. at 450, fn.6. The Court also cited Alvarez v. Reiser from the Eastland Court of Appeals for the proposition that “even if one party withdraws its consent to the MSA, the trial court is required to enter judgment on the agreement.” Id. (citing Alvarez v. Reiser, 958 S.W.2d 232, 233 (Tex. App.—Eastland 1997, pet. denied)).

The Court conditionally issued the writ of mandamus stating:

We hold that this language means what it says: a trial court may not deny a motion to enter judgment on a properly executed MSA on such grounds.

Id. at 457.

In its opinion, the Court found that:

Encouragement of mediation as an alternative form of dispute resolution is critically important to the emotional and psychological well-being of children involved in high-conflict custody disputes. Indeed, the Texas Legislature has recognized that it is “the policy of this state to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.”

Id. at 449 (citing TEX. CIV. PRAC. & REM. CODE sec. 154.002) (emphasis the Court’s own).

The Court noted in detail, the high financial and emotional cost, and the harmful effect on children, of high-conflict litigation. The Court stated “The Legislature has thus recognized that, because children suffer needlessly from *19 traditional litigation, the amicable resolution of child-related disputes should be promoted forcefully.” Id. at 449-50.

The Texas Supreme Court in In re Stephanie Lee held that:

Section 153.0071(e) unambiguously states that a party is ‘entitled to judgment’ on an MSA that meets the statutory requirements ‘notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.’ By its plain language, section 153.0071 authorizes a court to refuse to enter judgment on a statutorily compliant MSA on best interest grounds only when the court also finds the family violence elements are met. Stated another way, ‘[t]he statute does not authorize the trial court to substitute its judgment for the mediated settlement agreement entered by the parties unless the requirements of subsection 153.0071(e-1) are met.’ Subsection (e-1), enacted after subsection (e), makes it absolutely clear that the Legislature limited the consideration of best interest in the context of entry of judgment on an MSA to cases involving family violence.

Id. at 453 (citations omitted).

The Court noted the distinction between section 153.0071(b) and section 153.0071(e) saying:

Section 153.0071(b), governing arbitration of child-related disputes, is also instructive. In stark contrast with subsection (e), subsection (b) explicitly gives trial courts authority to decline an arbitrator’s award when it is not in the best interest of the child. (citations omitted). This distinction between arbitration and mediation makes sense because the two processes are very different. Mediation encourages parents to work together to settle their child-related disputes, and shields the child from many of the adverse effects of traditional litigation. On the other hand, arbitration simply moves the fight from the courtroom to the arbitration room. If the Legislature had intended to authorize courts to inquire into the child’s best interest when determining whether to render judgment on validly executed MSAs, as it did in section 153.0071(b) with respect to judgments on arbitration awards, it certainly knew how to do so.

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Id. at 453-54. The Texas Supreme Court in In re Stephanie Lee held that “section 153.0071(e) reflects the Legislature’s determination that it is appropriate for parents to determine what is best for their children within the context of the parents’ collaborative effort to reach and properly execute an MSA.” The Court opined that “[t]his makes sense not only because parents are in a position to know what is best for their children, but also because successful mediation of child-custody disputes, conducted within statutory parameters, furthers a child’s best interest by putting a halt to potentially lengthy and destructive custody litigation.” The failure of the trial court in this case to enforce the MSA has caused or enabled, the very things that the Texas Legislature was trying to address when it enacted section 153.00071(e). Id. at 454.

The Texas Supreme Court opined that “we hold that section 153.0071(e) encourages parents to peaceably resolve their child-related disputes through mediation by foreclosing a broad best interest inquiry with respect to entry of judgment on properly executed MSAs, ensuring that the time and money spent on mediation will not have been wasted and that the benefits of successful mediation will be realized. Allowing courts to conduct such an inquiry in contravention of the unambiguous statutory mandate in section 153.0071 has severe consequences that will inevitably harm children. The decisions below ignore clearly expressed legislative intent, undermining the Legislature’s goal of protecting children by *21 eroding parents’ incentive to work collaboratively for their children’s welfare. This frustrates the policies underlying alternative dispute resolution in the custody context, which are firmly grounded in the protection of children.” Id. at 455.

The Court concluded that a trial court may not deny a motion to enter judgment on a properly executed MSA under section 153.0071 based on a broad best interest inquiry. The Court held that in cases of abuse or neglect, section 261.101 of the Family Code provides a mandatory duty to report. Moreover, it noted that there were numerous other statutes authorizing protective action by the trial court, and said that the safeguards inherent in the mediation process fulfill the need to ensure that children are protected. Id. at 458.

The State Bar of Texas Family Law Council had submitted an amicus curiae brief in support of Relator’s petition for writ of mandamus. The Court noted that the Council argued that:

that a strict interpretation of section 153.0071 fulfills the state policy favoring amicable resolution of disputes and suggests that holding as the courts below did could lead to a loss in confidence in mediation and an increase in litigation over the best interest of the child. The Council argues that rules of statutory construction make clear that the Legislature intended to remove the best interest determination in the context of an MSA, instead deferring to parents to determine the best interest of the child, except where family violence is involved. The Council urges that to hold otherwise would ‘gut the legislative intent favoring alternative dispute resolution of family law matters by mediation,’ increasing both the cost of the proceedings and the stress on families forced to resolve ‘their disputes in the adversarial venue of the courts, rather than the cooperative environment of mediation. The

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Council contends that ‘[t]his result is certainly not in a child’s best interest.’

Id. at 453 (citations in amicus brief omitted).

As is clear by the mandate set by the Texas Supreme Court in In re Stephanie Lee, a trial court abuses its discretion in denying a motion to enter judgment on an MSA and in setting a case for trial based on the court’s conclusion that the MSA is not in the child’s best interest.

C. Texas Family Code 153.001(a) Expresses Public Policy of Texas That Parents Should Be Able To Make Decisions About Their Children

Moreover, section 153.001(a) of the Texas Family Code provides that: In suits affecting the parent-child relationship, it is the public policy of the State

of Texas to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code sec. (a). IV. Conclusion – Ms. Harrison Is Entitled To Entry Of The MSA Order And A Stay Of The March 27, 2015 9 a.m. Entry Of The Trial Court’s Rendition That Does Not Adopt The MSA

Ms. Harrison is entitled to entry of the MSA order as to parent-child issues. As evidenced by the record, and the exhibits filed in the Appendix to this writ of mandamus, the parties intended that the MSA would be enforced. They signed on *23 January 29, 2014, and the trial court incorporated it into an Interim Agreed Order on April 10, 2014. Appendix 1, 3, 4. Moreover, the Petitioner and Respondent/Relator, and the Amicus Attorney, all urged that the MSA would be entered. Appendix 5, 6, 8, 9, 12, 16. Relator urged the MSA again at trial but the trial court judge refused to entertain her presentation of the issue. Appendix 14, 15. The trial court abused its discretion in its rendition by not adopting the provisions of the mediated settlement agreement as to parent-child issues, including not allowing Relator, Ms. Harrison to put on evidence of the mediated settlement agreement during trial of this matter in January of this year. See Appendix 14, pg. 4-5 & 15, pg. 4 (January 16th & 20th trial excerpts). Moreover, the trial court denied hearing the matter saying Relator had not given 3 days notice. The trial in chief began on January 20, 2015. Relator asked the trial court judge on January 16th, 2015 when pre-trial matters and other items were discussed, to entertain her motion but the court would not saying Relator did not give the requisite notice. The motion was dispositive on the parent-child issues, and Texas Rule of Civil Procedure 21 specifically excepts trial matters from the notice requirement. See Perkins v. City of San Antonio, 293 S.W.3d 650, 654-55 (Tex. App.—San Antonio 2009, no pet.); Tex. R. Civ. P. 21. The trial court abused its discretion in not entertaining the motion, and in not incorporating the MSA into its rendition.

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The trial court signed an “Interim Agreed Order On Parent-Child Issues” and the MSA was adopted during the April 10, 2104 hearing. See Appendix 3 (Agreed Order) & 4 (transcript of hearing). Ms. Harrison is entitled to entry of the MSA order, as well as a stay of the March 27, 2015, 9 a.m. entry of the trial court’s rendition that does not adopt the MSA. Relator, Ms. Harrison has filed a Motion to Stay concurrently with the filing of this writ of mandamus in the appellate court. Counsel is also filing, and urging before the trial court at 9 a.m., that it agree to stay the proceedings in the trial court until the appellate court has an opportunity to rule on the writ of mandamus. As in an order that is being appealed, the trial court has the authority to suspend an order that is being urged at the appellate court. See In re Gonzalez, 981 S.W.2d 313, 314 (Tex. App.—San Antonio 1998, pet. denied).

CONCLUSION AND PRAYER

Ms. Harrison is entitled to entry of the MSA order, as well as a stay of the March 27, 2015, 9 a.m. entry of the trial court’s rendition that does not adopt the MSA. Ms. Harrison prays for any other and further relief, general or special, in law or in equity, to which she may show herself to be justly entitled.

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Respectfully submitted,

/s/ Lana Shadwick Lana Shadwick State Bar No. 00784951 2210 Norfolk, Suite 920 Houston, Texas 77098 Telephone: (713) 392-8222 Lana@LanaShadwick.com

CERTIFICATE OF CONFERENCE

Respondent has notified all counsel. Petitioner has not responded to an inquiry about the undersigned counsel’s filing a writ of mandamus or a motion to stay but has responded to another email correspondence. The amicus attorney is opposed.

/s/ Lana Shadwick

CERTIFICATION

I certify that I have reviewed the Petition and Writ and concluded that every factual statement in the petition is supported by competent evidence included in the Appendix or the Record.

/s/ Lana Shadwick

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CERTIFICATE OF SERVICE

In accordance with Tex. R. App. Pro. 9.5(a), the undersigned hereby certifies that a true and correct copy of the foregoing has been sent to Patricia A. Wicoff, lead counsel of record for Mr. Harrison, c/o Schlanger, Silver, 109 North Post Oak Lane, Suite 300, Houston, Texas 77024 and to Heather Hughes, counsel for J.E.H. and V.M.H., 952 Echo Lane, Suite 475, Houston, Texas 77024 through electronic email, and to Alicia K. Franklin, Judge of the 311th District Court, 201 Caroline, 8th Floor, Houston, Texas 77002 by hand-delivery, and postage prepaid certified mail, return receipt requested, on this, the 27th day of March, 2015.

/s/ Lana Shadwick

CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. Pro. 9.4(i)(3), the undersigned hereby certifies that according to the word count function of the computer program used to generate the document, the portions of the foregoing document subject to the rule contain contain less than 4200 words total and that the text thereof is in 14 point Times New Roman font.

/s/ Lana Shadwick *27 ________________________________________________________________

IN THE COURT OF APPEALS FOR THE FIRST OR FOURTEENTH DISTRICT OF TEXAS _________________________________________________________________

IN RE: CONNIE V. HARRISON __________________________________________________________________

RELATOR’S APPENDIX __________________________________________________________________

 APPENDIX 1 - Jan. 29, 2014: Mediated Settlement Agreement Signed

 APPENDIX 2 - February 13, 2015 – Trial Court’s Rendition Giving Mr. Harrison SMC

 APPENDIX 3 - April 10, 2014 – MSA incorporated into Agreed Order on Parent-Child Issues and it was signed by the Court

 APPENDIX 4 – April 10, 2014 Transcript of Hearing

 APPENDIX 5 - March 7, 2014 – Emergency Motion For Enforcement of MSA Filed By Mr. Harrison

 APPENDIX 6 - March 12, 2014 – Emergency Motion To Enter Order Filed By Amicus Attorney

 [NO APPENDIX 7]

 APPENDIX 8 - April 4, 2014 – Mr. Harrison filed Motion to Enter MSA

 APPENDIX 9 - May 30, 2014 – Transcript of Hearing on Motion to Enforce MSA

 APPENDIX 10 - September 3, 2014 – Hearing Transcript *28  APPENDIX 11 – September 3, 2014 Order

 APPENDIX 12 -- September 8th – Respondent Requested a De Novo Hearing and Appeal of the Associate Judge’s Ruling

 [NO APPENDIX 13]  APPENDIX 14 - January 16, 2015 Trial Transcript  APPENDIX 15 - January 20, 2015 – Trial Transcript

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¹ April 10, 2014

1 REPORTER'S RECORD VOLUME 1 OF 1 VOLUME 2 TRIAL COURT CAUSE NO. 2006-68864

3 IN THE INTEREST OF ) IN THE DISTRICT COURT ) 4 J.E.L.H., II, ) AND ) HARRIS COUNTY, TEXAS 5 V.M.H., ) ) 6 MINOR CHILDREN ) 311TH JUDICIAL DISTRICT 7

8 9 _____________________________________________ 10

11 REQUESTED EXCERPTS OF REPORTER'S RECORD 12 _____________________________________________

13 14 15 On the 10th day of April, 2014, the following

16 proceedings came on to be held in the above-titled 17 and numbered cause before the Honorable Tom

18 Stansbury, Judge Presiding, held in Houston, Harris 19 County, Texas. 20 Proceedings reported by computerized stenotype 21 machine.

22 23

24 25

² April 10, 2014

1 APPEARANCES

2 PATRICIA A. WICOFF SBOT NO. 21422500 3 AMY HARRIS SBOT NO. 24041057 4 Attorneys-at-Law SCHLANGER, SILVER, BARG & PAINE, L.L.P. 5 109 North Post Oak Lane, Suite 300 Houston, Texas 77024 6 Telephone: (713) 785-1700 Counsel for Clifford Harrison 7

— 8 —

9 DAVID M. MEDINA SBOT NO. 00000088 10 Attorney-at-Law 5300 Memorial, Suite 890 11 Houston, Texas 77007 Telephone: (713) 653-3147 12 Counsel for Connie Vasquez Harrison

— 13 —

14 HEATHER HUGHES SBOT NO. 00796794 15 Attorney-at-Law 952 Echo Lane, Suite 475 16 Houston, Texas 77024 Telephone: (713) 463-5505 17 Amicus Attorney for the Minor Children

— 18 —

19 HEATHER C. DANIELS SBOT NO. 24065115 20 Attorney-at-Law LILLY, NEWMAN & VAN NESS, L.L.P. 21 3355 W. Alabama, Suite 444 Houston, Texas 77098 22 Telephone: (713) 966-4444 Appearing for Bobby Newman, Attorney-at-Law 23

24 25

3 April 10, 2014

1 INDEX 2 VOLUME 1 3 REQUESTED EXCERPTS OF REPORTER'S RECORD 4 April 10, 2014 5 PAGE VOL.

6 First Excerpt of Reporter's Record .......... 4 1 7 Start of Second Excerpt ..................... 6 1

8 Ruling on Motion to Set Aside Rendition ..... 6 1 9 Ruling on Mediated Settlement Agreement .... 19 1 10 Start of Third Excerpt ..................... 26 1

11 Reporter's Certificate ..................... 33 1 12

13 14 15

16 17

18 19 20 21

22 23

24 25

4 April 10, 2014

1 (REQUESTED EXCERPTS OF REPORTER'S RECORD) 2 THE COURT: Okay. Counsel, if you 3 will, tell me who represents Petitioner. 4 MS. WICOFF: Your Honor, Patricia A. 5 Wicoff and Amy Harris represent Mr. Clifford Layne

6 Harrison, and we are the Petitioner in the underlying 7 divorce. We're also the party that has the motions

8 before the Court today. 9 THE COURT: Okay. The Respondent? 10 MR. MEDINA: I'm David Medina on

11 behalf of Connie Harrison. Texas Bar Number 88. 12 MS. HUGHES: Your Honor, I'm Heather

13 Hughes, the amicus attorney for the children. 14 THE COURT: Thank you. 15 MS. DANIELS: And my name is Heather

16 Daniels, and I'm here for Bobby Newman on the limited 17 issue of his interest in the Judge's current order.

18 THE COURT: In what? 19 MS. DANIELS: He has a -- they're 20 trying to set aside the Judge's rendition, and he 21 has -- he was awarded attorney's fees in that. So he

22 has an interest in that order. 23 MS. WICOFF: Well, Your Honor, he's

24 not the attorney of record. I don't know why anyone 25 that's not the attorney of record would be addressing

5 April 10, 2014

1 the Court with regard to any of these issues. If he 2 has an interest in the order, then perhaps he should 3 file an intervention like everyone else would; but I 4 would object to anyone addressing the Court that is 5 not an attorney of record for one of the parties in

6 this matter, whether they have an interest or not. 7 It's inappropriate.

8 THE COURT: What motions do you have, 9 Counsel? Ms. Wicoff? 10 MS. WICOFF: Your Honor, I have a

11 Motion to Set Aside an Alleged Rendition. I have -- 12 that was file marked March 31st by the clerk in this

13 matter. I have a Motion to Enter a Mediated 14 Settlement Agreement. I have a Motion for 15 Preferential Trial Setting. I also have set for

16 today a Motion for Severance; but I'm not moving 17 forward on that severance today, Judge.

18 THE COURT: Are there any other 19 motions set for today by anyone else or any other --20 MS. WICOFF: No, sir, there are not. 21 THE COURT: Okay. We've got a Motion

22 to Set Aside Rendition, a Motion to Enter an MSA and 23 a Motion for Preferential Trial Setting; and I guess

24 they need to go in that order probably. Correct? 25 MS. WICOFF: I think that's probably

6 April 10, 2014

1 correct, Judge. 2 THE COURT: All right. Please 3 proceed, ma'am. 4 MS. WICOFF: Your Honor, I'm going to 5 provide you a timeline which will be a summary of my

6 argument; and I'm providing a copy to Mr. Medina. 7 I've provided a copy to Ms. Hughes.

8 The rendition in question, Judge, is 9 a result of a hearing on February the 12th and 10 February the 14th. It was conducted before Judge

11 Pratt. 12 (CONCLUSION OF FIRST REQUESTED EXCERPT)

13 ***** 14 (START OF SECOND REQUESTED EXCERPT) 15 THE COURT: Let's stand in recess for

16 five minutes. Y'all stay close. 17 (Recess taken)

18 THE COURT: The Motion to Set Aside 19 the Rendition of March 31st, 2014 is granted. Well, 20 I had March 31st on my notes here. 21 MS. WICOFF: That's the file date,

22 Judge. 23 THE COURT: It was filed that date,

24 and the stamp date on the signature line for Judge 25 Pratt is March 26th. That is the rendition that is

7 April 10, 2014

1 set aside. 2 MS. WICOFF: Thank you, Judge. 3 MR. MEDINA: Thank you, Judge. 4 MS. WICOFF: May I pursue, then, at 5 this point, Judge, our next motion, which would be a

6 Motion to Enter the Mediated Settlement Agreement? 7 And, Judge, by way of just

8 chronological, this case was mediated in January. 9 MS. HARRIS: 29th. 10 MS. WICOFF: Actually, I'll have

11 Ms. Harris do it because she was at the mediation. 12 So I'll have her address the entry and the Lee case.

13 MS. HARRIS: Judge, actually, Judge 14 Pratt had ordered the parties to mediation back in 15 September. I was actually the only lawyer that

16 objected at that time because we had previously 17 mediated this case two or three or possibly even four

18 times. The Judge ordered us to mediate anyway, and 19 so we did. We scheduled mediation. 20 We mediated this case, I believe, on 21 January 29th, earlier this year.

22 At that mediation Ms. Harrison was 23 there with her counsel at the time, Mr. Newman.

24 Mr. Harrison and I were there. The amicus attorney 25 was there. And, Judge, we signed off on a Mediated

8 April 10, 2014

1 Settlement Agreement that day. We have prepared an 2 order that complies with the provisions of the 3 Mediated Settlement Agreement; and, Judge, we just 4 want to get that entered. It only pertains to the 5 children's issues, with the exception of one thing.

6 There's only one issue that's not resolved by that 7 Mediated Settlement Agreement, and that is the right

8 or the duty to manage the children's college 9 accounts, which we reserved to try at a later time. 10 Other than that, every provision that deals with the

11 children is -- is within that Mediated Settlement 12 Agreement, and we have an order in that regard.

13 THE COURT: Mr. Medina. 14 MR. MEDINA: Judge, the -- the MSA 15 should be set aside because case law provides --

16 MS. HUGHES: Your Honor, I'm going to 17 object. I don't know that that's before the Court

18 today. 19 MS. WICOFF: There's no motion --20 MR. MEDINA: Excuse me. 21 MS. WICOFF: -- to set aside before

22 the Court today, Judge. 23 MR. MEDINA: Judge, I had the

24 privilege of sitting on the Texas Supreme Court for 25 eight years; and during that period of time, counsel

9 April 10, 2014

1 is given 20 minutes on one side, 20 minutes on the 2 other side without interruption. I would expect the 3 same courtesy here at this bar. I'm responding to --4 THE COURT: I'll endeavor in that 5 direction, Mr. Medina.

6 MR. MEDINA: Thank you. 7 THE COURT: At this point, I'm taking

8 what you're saying as a background as to why the 9 motion to enter should be denied. 10 MR. MEDINA: Thank you. Thank you,

11 Judge. 12 It should be denied because my client

13 was subjected to domestic violence, and that's --14 that alone is enough to set aside these agreements; 15 and quite frankly, Judge, that should have been

16 conveyed to her before all of everybody's time and 17 resources were wasted.

18 THE COURT: Conveyed to your client? 19 MR. MEDINA: Yes, sir. She should 20 have known that going into that; but, you know --21 Excuse me, please.

22 But that aside, the case law allows 23 these to be set aside. Now this agreement, as I

24 understand it, in speaking with her counsel, lead 25 counsel, it's substantially agreed to. There's some

10 April 10, 2014

1 part that she doesn't agree to; but, you know, either 2 we set it aside or we go back to arbitration and try 3 to get -- get the details worked out. That's my 4 response to that. 5 In regarding the ad litem, Judge, I

6 didn't want to raise this here; but there is a motion 7 to remove the ad litem, and that -- that motion needs

8 to be heard at some point in the future. And my --9 THE COURT: When was that motion 10 filed? Do you recall?

11 MS. VASQUEZ HARRISON: April. 12 MR. MEDINA: April of last year,

13 Judge. 14 THE COURT: Okay. 15 MR. MEDINA: For whatever reason,

16 that motion is still pending; but that needs to be 17 reurged, and I think the lead counsel in this case

18 will reurge that at some time. 19 Judge, in the Texas Rules of Civil 20 Procedure 153.0071(e-1) supports -- supports that. 21 THE COURT: I apologize. Give me

22 about two minutes. I'll be right back. 23 MR. MEDINA: Thank you, Judge.

24 (Recess taken) 25 THE COURT: I apologize.

11 April 10, 2014

1 Mr. Medina, did you answer me on when 2 that was filed? Yeah, we did. We got that one. 3 Where were we after the motion to remove the ad 4 litem -- or the amicus? 5 MS. HUGHES: 2013, I believe.

6 THE COURT: Okay. 7 MS. HARRIS: Judge, I can respond.

8 First of all, the motion to remove 9 the amicus, Judge, was filed by Ms. Harrison's now 10 lead counsel who was her appellate counsel; but the

11 two family law lawyers that represented Ms. Harrison 12 after that point have both declined to go forward on

13 that motion. That's why it's not been urged before 14 the Court. 15 Secondly, Judge, I think Mr. Medina

16 was arguing that the Court should consider setting 17 aside the Mediated Settlement Agreement because they

18 allege that she was the victim of family violence. 19 Judge, 153.0071(e-1) and (e-2) specifically say that 20 a party to the agreement was a victim of family 21 violence, and that circumstance impaired the party's

22 ability to make decisions; and the agreement is not 23 in the best interest.

24 Further, Judge, I would argue that at 25 this point in time, they can't ask the Court to set

12 April 10, 2014

1 aside the Mediated Settlement Agreement. There was 2 no objection to mediation. I was the only lawyer 3 here. I think there was one, two, three, four, five 4 lawyers here that day. I was the only lawyer that 5 objected to mediation. Ms. Harrison nor any of her

6 counsel objected to mediation. We went to mediation, 7 an order was signed. I think they have now waived

8 the right to ask the Court to now set it aside. And 9 that, Judge, would be further 153.0071 beginning with 10 (f).

11 MR. MEDINA: There could be no waiver 12 on domestic violence.

13 THE COURT: What is the effect? Is 14 granting relief contained or pursuant to the Mediated 15 Settlement Agreement automatic if the Mediated

16 Settlement Agreement is entered today? 17 MS. WICOFF: Oh, it's already been

18 filed with the Court, Judge. 19 THE COURT: Well, what does Motion to 20 Enter the MSA mean? 21 MS. WICOFF: We need an order, and

22 maybe Ms. Hughes can address why we need an order. 23 THE COURT: An order adopting the

24 contents --25 MS. WICOFF: That's correct.

13 April 10, 2014

1 THE COURT: -- of the MSA? 2 MS. WICOFF: That's correct. 3 THE COURT: Ms. Hughes. 4 MS. HUGHES: That is correct, Your 5 Honor. They had filed a motion to enter -- they

6 meaning Mr. Harrison's -- some time ago and then 7 there were issues developing at the children's school

8 with who was to pick up on what days and it was 9 becoming an issue with the school. So I filed an 10 emergency motion to enter as the amicus to try and

11 narrow that down; and so that's what we appeared on, 12 on March 26th. And the Court gave us a very limited

13 order on possession and access to get us through the 14 school year, so-to-speak. It doesn't address 15 holidays or summer because my immediate concern was

16 so that we could tell the school this is what you 17 follow.

18 THE COURT: And that was pursuant to 19 a hearing in open court on March 26th? 20 MS. HUGHES: Yes. 21 THE COURT: Why didn't she -- why did

22 she limit the contents of the MSA that she adopted? 23 Why did she adopt only part of it?

24 MS. HUGHES: My understanding was 25 because there had been a motion filed contesting the

14 April 10, 2014

1 MSA by Ms. Harrison, and she said we'll get into all 2 of that later. 3 THE COURT: Is that motion still 4 pending? 5 MS. HUGHES: My understanding is it's

6 pending. I don't know that it's been set. 7 MS. WICOFF: It's never been set,

8 Judge. 9 MS. HARRIS: It's not been set, 10 Judge.

11 And, Judge, I just -- I also want to 12 let the Court know that this alleged family violence

13 argument that they attempt to make today is from an 14 alleged incident that happened well over eight years 15 ago. These people have not lived under the same roof

16 in eight years. They've been divorced for well over 17 four years.

18 Further, Judge, I would just provide 19 to the Court a copy of the Supreme Court case In Re: 20 Lee which says that, Judge, when there is a Mediated 21 Settlement Agreement that a Trial Court may not deny

22 a Motion to Enter the Judgment on a properly executed 23 Mediated Settlement Agreement.

24 MR. MEDINA: Judge, that's a very 25 good case. The concurrence is on point. The

15 April 10, 2014

1 concurrence was written by my law school friend and 2 former colleague Justice Guzman. It addresses 3 essentially all issues that weren't addressed in 4 majority opinion, and I think that's a good start to 5 look for guidance for this type of assistance.

6 And, Judge, that's not an allegation 7 on this violence. That man was arrested.

8 And I -- this is not evidence, Judge; 9 but I want to hand to you a part of the text messages 10 that -- that just is consistent with the type of

11 language and behavior that goes on from 12 Mr. Harrison --

13 MS. HARRIS: Judge, and I would --14 MR. MEDINA: -- to Ms. Harrison. 15 MS. HARRIS: -- object to anything.

16 We've not been provided that. It's not been 17 introduced. I'm not even sure what it is.

18 THE COURT: What's the date of this? 19 Is it all on the same date? 20 MR. MEDINA: Judge, it is on the same 21 date. It's 5:40 a.m. This was part of an exhibit on

22 February the 14th. 23 THE COURT: 2014?

24 MR. MEDINA: Yes, sir. 25 THE COURT: After the mediation?

16 April 10, 2014

1 MR. MEDINA: It's marked CH --2 MS. HARRIS: It's after the 3 mediation, Judge. 4 MR. MEDINA: It's marked CH135. 5 I just add that, Your Honor, for this

6 domestic violence issue -- and we're not talking 7 about, you know, Saint Paul here.

8 MS. HARRIS: Judge, they're talking 9 about an incident that happened before January of 10 2006. That's how long ago they're talking about.

11 How in the world can they come in today and say we're 12 a victim of domestic violence and because of an

13 alleged incident that happened more than eight years 14 ago that's prevented me from entering into a properly 15 executed Mediated Settlement Agreement even though I

16 was there with counsel being advised? 17 THE COURT: Mr. Medina, it sounds to

18 me that the -- that the Movant's arguments and 19 requests are directly in line with Justice Guzman. 20 MR. MEDINA: They're not, Judge. 21 THE COURT: Tell me why they are not.

22 MR. MEDINA: They are not. Justice 23 Guzman's concurrence -- the majority of that opinion

24 was written by Justice Lehrmann. Justin Guzman's 25 concurrence analyzes the -- the majority's opinion

17 April 10, 2014

1 and finds instances where a -- a motion like this can 2 be set aside based on domestic violence and some 3 other issues, and I believe the concurrence supports 4 our position. 5 THE COURT: Okay.

6 MS. HARRIS: Judge, a part of the 7 opinion that I think Mr. Medina is talking about, let

8 me just read to you exactly what it says. It says: 9 Finally Subsection (e-1), added in 2005, provides a 10 narrow -- a narrow exception to Subsection (e)'s

11 mandate, allowing a Court to decline to enter 12 judgment on even a statutorily compliant Mediated

13 Settlement Agreement if a party to the agreement was 14 a victim of family violence, comma, the violence 15 impaired the party's ability to make decisions; and,

16 Judge, that the agreement is not in the best interest 17 of the child.

18 How can they say that an alleged 19 incident that may or may not have happened more than 20 eight years ago impaired her current ability to make 21 a decision to sign a Mediated Settlement Agreement?

22 MR. MEDINA: Judge, what that does is 23 give the Trial Court broad discretion, broad

24 discretion, if you find it not in the best interest 25 of the children. Now while that incident may --

18 April 10, 2014

1 leading to his arrest may have happened years ago, 2 this man continues to threaten her through text 3 messages. He's threatened her the day before the 4 mediation. He continues to threaten her, and that's 5 what all this is about, and it's a shame that we are

6 still here arguing about this seven years later. 7 MS. HARRIS: Judge, that -- none of

8 that has ever been introduced into evidence at any 9 point in time. I've never heard that until just 10 right this very second.

11 And Mr. Medina, unfortunately, is 12 wrong. It's not -- it's not broad discretion, Judge.

13 The opinion specifically says it provides a narrow 14 exception, not broad discretion. 15 THE COURT: Anything further on this

16 motion? 17 MR. MEDINA: No. Thank you, Judge.

18 MS. HARRIS: Judge, I would just 19 argue that we really need to get an order entered. 20 There have been numerous problems with the drop off 21 and pick up of the children, with denial of periods

22 of possession and access. 23 And, Judge, the children have now

24 been asked to leave their private school that they 25 have been enrolled in since they began their school

19 April 10, 2014

1 careers. And, Judge, it's imperative that we get an 2 order in place protecting the children. 3 MR. MEDINA: And the children -- that 4 is all true, but that incident was caused by the 5 husband. The police were called to remove him from

6 the campus because he was being hostile. 7 MS. HARRIS: Judge, that is not true.

8 That is absolutely not true. 9 THE COURT: The Court adopts the 10 contents of the Mediated Settlement Agreement as the

11 order of this Court. 12 MS. WICOFF: Your Honor, we have the

13 order to submit, and I also have an order on vacate 14 that I would tender to the Court. It is signed by 15 myself.

16 And here is a copy of it, Mr. Medina. 17 THE COURT: Ms. Harris, Ms. Wicoff,

18 did y'all give me this? 19 MS. HUGHES: I did, Your Honor. 20 THE COURT: Can I make a copy of it? 21 MS. HUGHES: You can have it.

22 MS. HARRIS: We have an extra copy. 23 MS. HUGHES: Judge, and in this order

24 you will see some handwritten interlineations that I 25 did that conform with the order that Judge Pratt

20 April 10, 2014

1 entered on March 26th that address the same issues. 2 THE COURT: Have all counsel seen 3 that? 4 MS. HUGHES: I know they've not seen 5 my interlineations.

6 THE COURT: Can y'all -- can y'all 7 recess to counsel table --

8 MS. HARRIS: Yes, Judge. 9 THE COURT: -- and if you've got a 10 problem with it, Mr. Medina, I want you to address

11 that on the record; but otherwise let me type in my 12 docket sheet.

13 MS. HARRIS: Yes, Judge. 14 (Recess taken) 15 THE COURT: We're on the record.

16 Mr. Medina? 17 MR. MEDINA: I need some guidance

18 here, Judge. I understand your decision. My client 19 is telling me that she understands that this was not 20 scheduled for today, this hearing to set aside. And 21 I also understand that she was going to bring a

22 witness to help her support the allegation on the 23 psychological part.

24 Is that correct? 25 MS. VASQUEZ HARRISON: Yes.

21 April 10, 2014

1 MR. MEDINA: And while I think I know 2 a little bit about family law, I am not a family law 3 expert. I practice civil trial law and appellate 4 law. That's where my experience is, and I certainly 5 don't want to be in a position where she's not

6 getting the best counsel she needs for this hearing. 7 And if you would indulge me, Your Honor, for a brief

8 continuance, I don't --9 THE COURT: Let me see if that was 10 set for today, number one.

11 MR. MEDINA: Okay. 12 THE COURT: Stephanie, can you verify

13 for me? 14 MS. HARRIS: What exactly are we 15 talking about was not set?

16 THE COURT: The motion to adopt the 17 MSA.

18 MS. HARRIS: Okay. 19 THE COURT: Is that what you're 20 saying, Mr. Medina? 21 MR. MEDINA: Yes. Yes, Your Honor.

22 THE CLERK: Today it was Clifford 23 Harrison and Connie Harrison was set -- set aside

24 judgment. It was set for set aside. 25 MS. HARRIS: That was the very first

22 April 10, 2014

1 thing that we heard. 2 THE COURT: Right. 3 MS. HARRIS: But there were many 4 others. 5 THE CLERK: To specify, it's a motion

6 to enforce and then a set aside judgment and other 7 motions.

8 MS. HARRIS: Right. Judge, and it 9 was actually file stamped on April the 4th, Judge, 10 2014; and it was noticed that same date, Judge, for

11 April 10th, 2014 at 1:30 p.m. And it was sent via 12 e-mail, Judge, to Mr. Christopher Martin at Martin,

13 Disiere, Jefferson & Wisdom; by e-mail to Mr. David 14 Medina; and by e-mail to the amicus attorney, 15 Ms. Heather Hughes.

16 THE COURT: It appears to be correct, 17 Mr. Medina, from what Ms. Hughes is showing me. I

18 think it was properly set for today. 19 MR. MEDINA: Okay. Thank you, Judge. 20 May I have a moment, Judge? 21 THE COURT: Sure.

22 (Brief recess taken) 23 MR. MEDINA: Judge, may I make an

24 inquiry --25 THE COURT: Yes, sir.

23 April 10, 2014

1 MR. MEDINA: -- to the clerk of the 2 court if she has any documentation of this hearing, 3 this part of the hearing being canceled by Judge 4 Pratt? Do you have any notation? 5 THE COURT: Do you have any

6 indication that the hearing -- 7 MS. VASQUEZ HARRISON: On April the

8 26th. 9 MS. HUGHES: I believe I know what 10 Ms. Harrison is referring to, Your Honor, if --

11 MS. VASQUEZ HARRISON: On March. 12 MS. HUGHES: -- the Court would like

13 me to fill in. 14 THE COURT: Yes, ma'am. 15 MS. HUGHES: When we were down here

16 on March 26th, at the conclusion of that hearing in 17 the afternoon, Judge Pratt had asked the attorneys

18 and Ms. Harrison to appear down here on today at 8:30 19 in the morning to get with her coordinator to get a 20 pref setting on various motions. That kind of went 21 away when she resigned that Friday.

22 MS. HARRIS: Why we weren't here at 23 8:30 this morning.

24 MS. HUGHES: And then I received 25 notice of a handful of motions set for today at 1:30.

24 April 10, 2014

1 MS. HARRIS: In fact, Judge, I -- I 2 would say that I believe we filed originally a motion 3 back on -- probably on or about March 21st, and so I 4 want to say that our hearing -- that this hearing has 5 been set since about that time.

6 MS. VASQUEZ HARRISON: May I say 7 something, Judge?

8 THE COURT: Yes, ma'am. 9 MS. VASQUEZ HARRISON: Judge, we --10 Bobby Newman had withdrawn. He hadn't been paid his

11 fees and so I had to represent myself on that 12 afternoon and Judge Pratt canceled. She said -- she

13 looked at her documentation -- I have 40 cases. I 14 cannot hear you on April the 10th. On April the 10th 15 I cannot hear the motion to set aside or the motion

16 to enter. 17 THE COURT: So come down here at 8:30

18 to get a new date? 19 MS. VASQUEZ HARRISON: So she said 20 come here at 8:30; and so then my attorney, 21 Mr. Martin, took it off of his calendar as -- as to

22 us having the hearing and then my two witnesses that 23 were going to show up took it off of their calendar

24 because we were going to get a new date at 8:30 in 25 the morning, as Ms. Hughes said, where everybody

25 April 10, 2014

1 could attend at a future time. 2 THE COURT: Ma'am, I'm sure if you 3 discussed that with Mr. Medina and with Mr. Martin, 4 they have remedies available; but what I have before 5 me today, it hadn't been canceled. It hadn't been

6 reset. I understand what you're saying as a 7 practical matter, but it hadn't been changed from

8 1:30 this afternoon. And based on that, I've made 9 the ruling, and that ruling must stand at this time. 10 MR. MEDINA: Thank you, Judge.

11 THE COURT: Okay. Thank y'all. 12 MS. HARRIS: Judge, the only further

13 motion that we have is our Motion for a Preferential 14 Trial Setting. 15 And, Judge, I -- I understand that --

16 that we're in kind of a weird situation at this 17 moment, but if I could just give the Court a flavor

18 of kind of what we're dealing with. 19 Judge, this case was originally filed 20 back in 2006. It was tried to a jury over the course 21 of about two weeks in front of the Honorable Judge

22 Doug Warne in March and then in April of 2010. We 23 did get a rendition, ruling, an order signed in June

24 of 2010. It went up on appeal. It's been back down 25 for well over a year, Judge. It's been on remand for

26 April 10, 2014

1 well over a year. 2 We attempted to get Temporary Orders 3 in place in this matter immediately following the 4 remand in January and February of 2013. Judge, we 5 couldn't get anything heard until we got a Mediated

6 Settlement Agreement a year later. My point, Judge, 7 is that we have got to get a trial setting in this

8 case. 9 (CONCLUSION OF SECOND REQUESTED EXCERPT) 10 *****

11 (START OF THIRD REQUESTED EXCERPT) 12 THE COURT: Y'all have a seat, if you

13 will. The coordinator is checking right now. I'm 14 going to give you a trial setting date before you 15 leave here.

16 MS. WICOFF: All right. Thank you. 17 MR. MEDINA: Thank you.

18 MS. HARRIS: Thank you, Judge. 19 MS. WICOFF: I'm sorry? 20 MR. MEDINA: Here is a copy of the 21 Fourteenth Court of Appeals opinion. Do you have any

22 objection? 23 MS. WICOFF: Oh, in this case?

24 MR. MEDINA: Yes. 25 MS. VASQUEZ HARRISON: It's my copy.

27 April 10, 2014

1 Would you like a copy, Judge? 2 THE COURT: Not necessarily. Whoever 3 had it can have it back. 4 MR. MEDINA: Thank you, Judge. 5 THE COURT: Thank you.

6 MS. WICOFF: All right. And did both 7 of those other orders get signed, Judge? I didn't --

8 where did we end up on the --9 MS. VASQUEZ HARRISON: Mr. Medina, do 10 you have the order?

11 MS. WICOFF: -- MSA order? We need 12 that MSA entered, the Temporary Orders.

13 MS. HARRIS: It's not a Temporary 14 Order. 15 MS. VASQUEZ HARRISON: Oh, we were --

16 MS. WICOFF: Is that done? 17 MS. VASQUEZ HARRISON: The order has

18 not been --19 THE COURT: We're off the record. 20 (Discussion off the record) 21 THE COURT: We're back on the record.

22 MS. WICOFF: Judge, what the MSA 23 says, very boilerplate language, if there are

24 drafting disputes, those drafting disputes go back 25 to --

28 April 10, 2014

1 THE COURT: Who was your mediator? 2 MS. WICOFF: -- Mr. Millard. I'm 3 sorry? 4 THE COURT: Who was your mediator? 5 MS. WICOFF: John Millard, appointed

6 by Judge Pratt. 7 THE COURT: Okay.

8 MS. WICOFF: And -- and we submitted 9 an order to the other side weeks ago. We've never 10 heard a peep about any drafting dispute, not a peep.

11 So at this point, Judge, we've got to get an order 12 entered for the benefit of these children so if

13 there's any hope of their staying at Second Baptist 14 we have a firm order signed by the Court moving 15 forward.

16 MS. VASQUEZ HARRISON: Your Honor, 17 the language is very clear. Mr. Newman -- Mr. Newman

18 withdrew on March 14th. 19 MS. HARRIS: 24th. 20 MS. VASQUEZ HARRISON: On March 14th. 21 MS. WICOFF: 24th.

22 MS. VASQUEZ HARRISON: Okay. Well, I 23 have not had a family attorney to help me go

24 through -- these orders would affect my children and 25 myself --

29 April 10, 2014

1 THE COURT: Uh-huh. 2 MS. VASQUEZ HARRISON: -- for, you 3 know, 10, 20 years. 4 THE COURT: Or at least until your 5 trial date coming up.

6 MS. VASQUEZ HARRISON: Yes, Your 7 Honor. And so I only ask that if you -- if you did

8 decide to not set aside the MSA, to give us the 9 opportunity to go through that with a family law 10 attorney, as Justice Medina have recommended, so

11 that -- and if -- and -- and I already see several 12 drafting that they've put words in there that are not

13 even in the MSA. 14 And so -- and so I just -- I plead 15 with the Court that -- that that -- for me to be

16 given the opportunity to have an attorney to go 17 through that, and if we can't discuss it amongst --

18 if they can't -- if we can't agree to something, to 19 go back to Mr. Millard. 20 THE COURT: I understand. I 21 understand.

22 Ms. Hughes. 23 MS. HUGHES: I have a suggestion,

24 Your Honor, that may accomplish both ends. 25 What if we enter this as an Interim

30 April 10, 2014

1 Temporary Order? If Ms. Harrison does submit 2 drafting disputes and we can't work them out, then 3 we're ordered back to Mr. Millard, but at least there 4 is a governing order that covers everything moving 5 forward.

6 MS. VASQUEZ HARRISON: Judge, I 7 ask -- I mean this is -- that -- that would not be --

8 I have sole. Your Honor, I have sole custody. 9 They're wanting an interim order as to joint custody. 10 MS. HUGHES: That's what the MSA --

11 THE COURT: Ms. Harrison, I'm going 12 to have to interrupt you and make this statement.

13 Change that order to read "interim," 14 as Ms. Hughes suggests. Everybody approve that order 15 unless there's some specific objections to the form,

16 and I'll sign those orders as presented to me today. 17 Y'all have a seat and wait for

18 your -- for your trial date. Oh, let me ask one 19 other question before you do. 20 Ms. Hughes, were you there for the 21 duration of the mediation?

22 MS. HUGHES: Absolutely, Your Honor. 23 THE COURT: Were there issues

24 mediated other than the issues you were involved in? 25 MS. HUGHES: No. Initially there

31 April 10, 2014

1 were some property discussion, but then the focus 2 shifted entirely to the children. 3 THE COURT: I don't want to invade 4 anything, but I'd like to know has property been --5 property issues been mediated.

6 MS. HUGHES: It was discussed -- 7 THE COURT: Ms. Wicoff, were you at

8 the mediation -- no. Ms. Harris, you were there. 9 MS. HUGHES: -- but not the focus. 10 MS. HARRIS: No. I was, Judge.

11 THE COURT: Was property mediated? 12 MS. HARRIS: Property was discussed.

13 I wouldn't -- I couldn't say to the Court that we 14 actually mediated those issues. 15 THE COURT: Okay.

16 MS. HARRIS: It was discussed, but 17 probably not negotiated very well, Judge; but it had

18 been mediated numerous times prior to then. 19 THE COURT: All right. You agree, it 20 was talked about? 21 MS. VASQUEZ HARRISON: They were

22 discussed and I understand that children's issues, 23 SAPCR issues and property, that type of bifurcation,

24 is not allowed. 25 (CONCLUSION OF THIRD REQUESTED EXCERPT)

32 April 10, 2014

1 (Conclusion of requested 2 transcriptions) 3 4 5

6 7

8 9 10

11 12

13 14 15

16 17

18 19 20 21

22 23

24 25

33 April 10, 2014

1 STATE OF TEXAS 2 COUNTY OF HARRIS 3 I, Marilee M. Anderson, Deputy Official Court 4 Reporter in and for the 311th District Court of 5 Harris County, State of Texas, do hereby certify that

6 the above and foregoing contains a true and correct 7 transcription of all portions of evidence and other

8 proceedings requested in writing by counsel for the 9 parties to be included in this volume of the 10 Reporter's Record in the above-styled and numbered

11 cause, all of which occurred in open court or in 12 chambers and were reported by me.

13 I further certify that this Reporter's Record of 14 the proceedings truly and correctly reflects the 15 exhibits, if any, offered by the respective parties.

16 I further certify that the total cost for the 17 preparation of this Reporter's Record is $ and

18 was paid/will be paid by .

19 WITNESS MY HAND this the ____________ day of __________________________, 2015. 20 Marilee M. Marilee M. Anderson 2015.03.25 12:36:48 21 Anderson -05'00' _

22 Marilee M. Anderson, CSR Texas CSR 3271 23 Deputy Official Court Reporter P.O. Box 6459 24 Kingwood, Texas 77325 Telephone: (281) 705-9268 25 Expiration: 12/31/2016

3/7/2014 3:58:40 PM Chris Daniel - District Clerk Harris County Envelope No. 660878 By: Stephanie Garcia

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3/12/2014 8:40:20 AM Chris Daniel - District Clerk Harris County Envelope No. 689843 By: Monica Caballero

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4/4/2014 4:45:00 PM Chris Daniel - District 4/4/2014Clerk 4:45:14 PM Harris County Chris Daniel - District Clerk Harris County Envelope No. 913999 By: ANNIE GARCIA

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1 1 REPORTER'S RECORD 2 VOLUME 1 OF 1 3 COURT CAUSE NO. 2006-68864 4

5 IN THE MATTER OF * IN THE DISTRICT COURT OF THE MARRIAGE OF * 6 * CLIFFORD LAYNE HARRISON * 7 AND * HARRIS COUNTY, T E X A S CONNIE VASQUEZ HARRISON * 8 * AND IN THE INTEREST OF * 9 JOHN EARNEST LEE * HARRISON, II., AND * 10 VICTORIA MADELINE * HARRISON, * 11 MINOR CHILDREN * 311TH JUDICIAL DISTRICT

12 13 ******************************************************** 14 REPORTER'S RECORD 15 ******************************************************** 16 17 On the 30th day of May, 2014, the following 18 proceeding came to be heard in the above-titled and 19 numbered cause before the Honorable Thomas Stansbury, 20 presiding, held in Houston, Harris, Texas: 21 Proceedings reported by computerized stenotype 22 machine. 23 24 25 (Excerpt of Pages 53 through 56.)