Loren Rose Jeremy v. Nicholas Dusan Jeremy ( 2015 )


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  •                                                                                                          ACCEPTED
    14-15-00279-cv
    FOURTEENTH COURT OF APPEALS
    HOUSTON, TEXAS
    5/6/2015 10:02:34 AM
    CHRISTOPHER PRINE
    CLERK
    CASE NO. 14-15-00279-CV
    LOREN ROSE JEREMY                                §           IN THE FOURTEENTH
    FILED IN
    §                        14th COURT OF APPEALS
    Appellant,                                §                            HOUSTON, TEXAS
    §                        5/6/2015 10:02:34 AM
    v.                                               §           COURT     OF APPEALS
    CHRISTOPHER A. PRINE
    §                                 Clerk
    NICHOLAS DUSAN JEREMY                            §
    §
    Appellee.                                 §           HOUSTON, TEXAS
    APPELLANT’S MOTION TO CHALLENGE ORDER SUSTAINING CONTEST
    TO THE HONORABLE JUSTICES OF THE FOURTEENTH COURT OF APPEALS:
    Appellant, Loren Rose Jeremy, asks the Court to review the trial court’s order sustaining
    the contest to his indigence.
    INTRODUCTION
    1.      This is an appeal of a final decree of divorce wherein Loren Rose Jeremy is
    Appellant, and Nicholas Dusan Jeremy is Appellee.
    2.      The Court signed the final decree of divorce on December 18, 2014, in favor of
    Appellee and against Appellant awarding primary custody of the parties’ minor children to
    Appellee.
    3.      Appellant timely filed a motion for new trial, which was overruled by operation of
    law on March 3, 2015. Appellant was notified on April 1, 2015 by the clerk of this court that she
    would be responsible for paying the costs to prepare the appellate record. On March 28, 2015,
    Appellant timely filed her affidavit of indigence. TEX. R. APP. P. 20.1(c)(1).
    4.      On April 6, 2015, the court reporter, Ronald F. Vella, filed a contest to Appellant’s
    affidavit of indigency. The hearing on the contest was extended by written order to April 29, 2015.
    5.       On April 29, 2015, the court held an evidentiary hearing on the contest and
    sustained the contest by written order.
    ARGUMENT & AUTHORITIES
    6.       A party is entitled to a free appellate record if she establishes indigency under Texas
    Rule of Appellate Procedure 20.1 and the court finds that the appeal is not frivolous and that
    appellate record is necessary to decide the issues presented. TEX. CIV. PRAC. & REM. CODE ANN.
    § 13.003(a)(2).
    7.       If a trial court sustains a contest to an affidavit of indigence, the party claiming
    indigence can seek review of the trial court’s order by filing a motion challenging the order without
    advance payment of costs. TEX. R. APP. P. 20.1(j)(1).
    8.       The standard of review by an appellate court on such a motion challenging an order
    sustaining a contest is whether the trial court abused its discretion in finding that the record as a
    whole showed the indigent was not able to pay costs of the appeal even though a good-faith effort
    was made. White v. Bayless, 
    40 S.W.3d 574
    , 576 (Tex. App.—San Antonio 2001, pet. denied);
    see Baughman v. Baughman, 
    65 S.W.3d 309
    , 316 n.5 (Tex. App.—Waco 2001, pet. denied).
    9.       Appellant seeks to appeal on the following issues: (a) whether the trial court abused
    its discretion in finding that Appellee should be the custodial parent of the parties’ minor children;
    and (b) whether the trial court abused its discretion in finding that Appellee be required to change
    her treating psychiatrist.
    10.      This appeal is not frivolous because Appellant, through her attorney of record,
    appeared at the final hearing and preserved error on each of the aforementioned issues. If
    Appellant is successful on either of her issues on appeal, this case will be required to be retried, at
    least in part.
    2
    11.     Thus, this court should grant this motion and overrule the trial court’s determination
    sustaining the contest due to Appellant’s alleged failure to meet the standard for indigency.
    APPELLATE RECORD NECESSARY
    12.     There are no documents from the clerk’s record not required by Rule 34.5 but
    necessary for this appeal.
    13.     Appellant will request a reporter’s record for this appeal. The complete reporter’s
    record is necessary because Appellant will challenge the factual and legal sufficiency of the
    evidence, the trial court’s rulings on the admissibility of evidence; and the trial court’s rulings on
    Appellant’s posttrial motions.
    CONCLUSION
    14.     Appellant is entitled to a free appellate record because she can establish indigency
    under Texas Rule of Appellate Procedure 20.1, her appeal is not frivolous, and the appellate record
    is necessary to decide the issues presented. First, Appellant, based on the record made by the trial
    court, has proven she is unable to pay the costs of the appeal because of her indigence. Second,
    this appeal is not frivolous because Appellant is raising issues on appeal which, if sustained, would
    require at least a partial retrial. Finally, the complete reporter’s record is necessary because
    Appellant will challenge the factual and legal sufficiency of the evidence, the trial court’s rulings
    on the admissibility of evidence; and the trial court’s rulings on Appellant’s posttrial motions.
    Thus, the trial court’s order sustaining the contest to his indigence is error as it was based solely
    on the erroneous ruling that Appellant has failed to meet the stadard for indigence.
    3
    PRAYER
    15.     For these reasons, Appellant asks the Court to grant her motion challenging the trial
    court’s order sustaining contest and order the clerk of trial court and the official trial court reporter
    to prepare a free appellate record.
    Respectfully submitted,
    Mark Aronowitz
    By: ___________________________________
    MARK ARONOWITZ
    Attorney for Appellant
    State Bar No. 00793281
    P.O. Box 1201
    Texas City, TX 77592-1201
    Tel: (713) 894-3857
    Fax: (409) 765-2905
    CERTIFICATE OF SERVICE
    I certify that a true copy of the above was served on each attorney or party in accordance
    with the Texas Rules of Civil Procedure on May 6, 2013.
    Mark Aronowitz
    _______________________________________
    MARK ARONOWITZ
    4
    

Document Info

Docket Number: 14-15-00279-CV

Filed Date: 5/6/2015

Precedential Status: Precedential

Modified Date: 4/17/2021