IN THE ATTORNEYS FOR by jizhen1947

VIEWS: 42 PAGES: 108

									                             No.05-09-00811-CV

                                   IN THE
                       FIFTH COURT OF APPEALS

                               at Dallas, Texas


IN THE MATTER OF THE MARRIAGE OF CHRISTY CALVERT COLLINS
               AND THOMAS FRANCIS MOROCH


    Appealed from the 301st Judicial District Court of Dallas County, Texas


                   APPELLEEIINTERVENOR'S BRIEF




                                       Respectfully submitted by,

                                       C. "Luke" Gunnstaks
                                       Texas Bar No. 08624370
                                       Ashlie Thomas Vieira
                                       Texas Bar No. 24042026
                                       Gunnstaks Law Office
                                       5601 Granite Parkway, Suite 350
                                       Plano, Texas 75024
                                       Tel. (972) 392-2300
                                       Fax (214) 619-0636
                                       ATTORNEYS FOR
                                       APPELLEE/INTERVENOR, C. "LUKE"
                                       GUNNSTAKS



  ORAL ARGUMENT REQUESTED AT THE COURT'S DISCRETION
                                 No.05-09-008U-CV

                                        IN THE

                            FIFTH COURT OF APPEALS

                                     at Dallas, Texas


  IN THE MATTER OF THE MARRIAGE OF CHRISTY CALVERT COLLINS
                 AND THOMAS FRANCIS MOROCH


                       IDENTITY OF PARTIES & COUNSEL


Appellant:                                      Christy Calvert Collins

Represented in the Trial Court                  C. "Luke" Gunnstaks
by:                                             Texas Bar No. 08624370
                                                Gunnstaks Law Office
                                                5601 Granite Parkway, Suite 350
                                                Plano, Texas 75024
                                                Tel. (972) 392-2300
                                                Fax (214) 619-0636

Represented in the Appellate Court              Paula Gaus
by:                                             Texas Bar No. 07767025
                                                4424 W. Lovers Lane
                                                P.O. Box 7696
                                                Dallas, Texas 75209
                                                Tel. (972) 252-2626
                                                Fax (972) 869-7624

Appellee:                                       Thomas Francis Moroch

Represented in the Trial Court                  Christopher Weil
and the Appellate Court by:                     Texas Bar No. 21079000
                                                Anthony A. Petrocchi
                                                Texas Bar No. 15851700
                                                Teresa M. Robbins
                                                Texas Bar No. 24026020
                                 Weil & Petrocchi, P.C.
                                 1900 Thanksgiving Tower
                                 1601 Elm Street
                                 Dallas, Texas 75201
                                 Tel. (214) 969-7272
                                 Fax (214) 880-7402

Appellee/Intervenor:             C. "Luke" Gunnstaks

Represented in the Trial Court   C. "Luke" Gunnstaks
by:                              Texas Bar No. 08624370
                                 Gunnstaks Law Office
                                 5601 Granite Parkway, Suite 350
                                 Plano, Texas 75024
                                 Tel. (972) 392-2300
                                 Fax (214) 619-0636

Represented in the               C. "Luke" Gunnstaks
Appellate Court by:              Texas Bar No. 08624370
                                 Ashlie Thomas Vieira
                                 Texas Bar No. 24042026
                                 Gunnstaks Law Office
                                 5601 Granite Parkway, Suite 350
                                 Plano, Texas 75024
                                 Tel. (972) 392-2300
                                 Fax (214)619-0636




                                                                   11
                                                TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................... i

INDEX OF AUTHORITIES ............................................................................................ v

STATEMENT OF THE CASE ........................................................................................ 2

STATEMENT ON ORAL ARGUMENT ....................................................................... 4

REPLY TO ISSUES PRESENTED ................................................................................. 5

STATEMENT OF FACTS ............................................................................................... 6

SUMMARY OF THE ARGUMENT ............................................................................. 10

ARGUMENT ................................................................................................................... 11

REPLY TO ISSUE 2. The trial court did not abuse its discretion when it awarded
Appellee/lntervenor attorney's fees in the amount of $55,367.16 because: 1)
Appellant waived any complaint at trial(s) as to whether Gunnstaks was a proper
intervenor, the amounts due to Gunnstaks, and any "accord and satisfaction"
defense; 2) the record presents ample evidence that he was a proper intervenor; 3)
there was no accord and satisfaction between the parties as to the entire amount
billed, therefore the total amount remains due and owing; 4) there was a contract
upon which this fee award could be based, and alternatively; 5) Gunnstaks'
equitable claim of quantum meruit substantiates the award in the absence of a
contra ct. ............................................................................................................................ 11

I.        Standard of Review and Applicable Law ........................................................... 11

II.       Appellant waived 1) any complaint as to whether Gunnstaks' intervention
          was proper; 2) any complaint as to the amount awarded to Gunnstaks; and 3)
          her "accord and satisfaction" defense ................................................................. 13

III.      The trial court did not abuse its discretion in finding Gunnstaks' intervention
          was proper ................................................................................... 17

IV.       There was no accord and satisfaction between Collins and Gunnstaks as to
          the amounts due and owing on her entire bill ........................................... 21


                                                                                                                                       111
V.        A contract, whether express or implied-in-fact, existed between Gunnstaks
          and    Collins, therefore she was obligated to pay Gunnstaks for services
          rendered and accepted ........................................................................ 24

       A.     Express Contract and Novation ................................................................. .24

       B.      Contract Implied-in-Fact. ................................................................ 29

VI.       Gunnstaks' sworn account claim provides a clear basis for recovery of his
          attorney's fees from Collins.............................................................. 30

VII.       Alternatively, in the absence of a finding of a contract between Gunnstaks
          and Collins, Gunnstaks is entitled to recover attorney's fees under the theory
          of quantum meruit.............................................................................. 32

CONCLUSION ................................................................................................................. 34

PRAyER........................................................................................................................... 35

CERTIFICATE OF SERVICE. ..................................................................................... .36

APPENDIX....................................................................................................................... 37




                                                                                                                                 IV
                                               INDEX OF AUTHORITIES

                                                                CASES

Case Funding Network v. Anglo-Dutch Petroleum Internat'l, Inc., 264 S.W.3d 38
(Tex.App.-Houston [1st Dist.] 2007, pet. denied) ..................................................... 21,22

City o/Ingleside v. Stewart, 554 S.W.2d 939 (Tex.Civ.App.-Corpus Christi 1977, writ
ref'd n.r.e.) ......................................................................................................................... 32

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex.1985) ............................. 11

Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366 (Tex.App.-Fort Worth 2003,
pet. denied) ........................................................................................................................ 26

Fulcrum Cent. v. AutoTester, Inc., 102 S.W.3d 274 (Tex. App.-Dallas 2003, no
pet.) ................................................................................................................................... 26

In re Nation, 694 S.W.2d 588 (Tex.App.-Texarkana 1985, no writ) ................................ 12

In re Union Carbide Corp., 273 S.W.3d 152 (Tex.2008) ................................................. 12

Inter-Continental Corp. v. Moody, 411 S.W.2d 578 (Tex.Civ.App.-Houston [1st Dist.]
1966, writ ref'd n.r.e.) ............................................................................................ 12,19,20

Intermarque Auto. Prods v. Feldman, 21 S.W.3d 544 (Tex.App.-Texarkana 2000, no
pet.) .................................................................................................................................... 12

Jenkins v. Henry C. Beck Co., 449 S.W.2d 454 (Tex.1969) ............................................. 21

Jones v. Springs Ranch Co., 642 S.W.2d 551 (Tex.App.-Amarillo 1982, no writ) .......... 12

Knapp v. Wilson N Jones Memorial Hosp., 281 S.W.3d 163 (Tex. App.-Dallas 2009,
no pet.) ............................................................................................................................... 13

Rogers v. Searle, 533 S.W.2d 440 (Tex.Civ.App.-Corpus Christi 1976, no writ) ........... .
............................................................................................................................... 11, 12, 17

Solano v. Syndicated Office Sys., 225 S.W.3d 64 (Tex.App.-EI Paso 2005, no pet.) ... 31

Texas Supply Center, Inc. v. Daon Corp., 641 S.W.2d 335(Tex.App.-Dallas 1982, writ
ref'd n.r.e) .................................................................................................................... 12, 13


                                                                                                                                           v
Vortt Exploration Co., Inc. v. Chevron, U.S.A., Inc., 7S7 S. W.2d 942 (Tex. 1990)........... .
............................................................................................................................... 32, 33, 34

Worfordv. Stamper, SOl S.W.2d lOS (Tex. 1990)........................................................... 11

Zeijman v. Michels, 229 S.W.3d 460 (Tex. App.-Austin 2007, no pet.) ........................ 13


                                                              RULES
Tex. R. App. P. 33.1 .................................................................................................... 13, 14

Tex. R. App. P. 3S.1(e) ....................................................................................................... 4

Tex. R. App. P. 3S.1(g) ....................................................................................................... 6

Tex. R.App. P. 3S.1(i) ...................................................................................................... 30

Tex. R. App. P. 3S.2(a)(l)(B) ......................................................................................... 2,6

Tex. R. App. P. 39.1(c) ....................................................................................................... 4

Tex. R. App. P. 39.1(d) ....................................................................................................... 4

Tex. R. Civ. P. 60 .............................................................................................................. 11

Tex. R. Civ. P. lS5 ............................................................................................................ 31




                                                                                                                                       VI
                                 No.05-09-00811-CV

                                       IN THE

                           FIFTH COURT OF APPEALS

                                   at Dallas, Texas


  IN THE MATTER OF THE MARRIAGE OF CHRISTY CALVERT COLLINS
                 AND THOMAS FRANCIS MOROCH


        Appealed from the 30lst Judicial District Court of Dallas County, Texas


                       APPELLEEIINTERVENOR'S BRIEF




TO THE HONORABLE COURT OF APPEALS:

      Appellee/Intervenor C. "Luke" Gunnstaks, Intervenor below in Cause No. DF 99-

19687-T in the 301st District Court of Dallas County, Texas, the Honorable Lynn Cherry

presiding, respectfully submits this brief in response to Appellant Christy Calvert

(Moroch) Collins' appeal from the trial court's Final Order in Post-Judgment Suit for

Enforcement, signed on May 4, 2009.




                                                                                     1
                                      STATEMENT OF THE CASE

           Appellee/Intervenor Attorney C. "Luke" Gunnstaks ("Gunnstaks") disagrees with

Appellant Christy Calvert Collins' Statement of the Case; therefore, he includes this, his

statement of the case. Tex. R. App. P. 38.2(a)(1)(B).

            Appellee/Intervenor's justiciable interest in the appeal is related only to the

intervention claim for attorney's fees, therefore his brief will address only this issue.

           Gunnstaks was counsel for Appellant Christy Calvert Collins ("Collins") from

April 2, 2001 until his withdrawal on January 18, 2005. (CR 9, CR 35). The parties

divorced on January 15, 2003 (CR 8). Appellee Thomas Moroch ("Moroch") took an

appeal from the parties' Decree of Divorce. l After the divorce and during the pendency

of the appeal, Gunnstaks continued to represent Collins. (3 RR 67-68,7 RR 86, 2 RR 7).

Collins failed to pay Gunnstaks as agreed; therefore, he withdrew as her counsel on

January 18,2005. (CR 9). On November 17,2006, counsel for Collins, attorney Paula

Gaus, filed her "Petition for Enforcement of Property Division & to Recover Taxes

Accrued and Losses Incurred Pending Appeal." (CR 11). On April 5, 2007, Gunnstaks

filed his "Original Petition in Intervention for Attorney's Fees" because Collins had

failed to pay Gunnstaks as agreed. (CR 21). Collins filed her "Motion to Strike Plea and

Intervention and in the Alternative, Defendant Christy Collins's Motion for Partial

Summary Judgment" on September 26,2007. (CR 51). The trial court denied both the

motion to strike and the summary judgment. (CR 131). The case proceeded to trial on



1 See   Moroch v. Collins, 174 S.W.3d 849 (Tex. App.-Dallas 2005, pet. denied).
                                                                                            2
April 10, 200S. (3 RR 6). Neither Moroch nor his counsel, attorney Chris Weil, were

present at the April 10, 200S trial and a default judgment was entered against Moroch that

included a judgment in the amount of $55,367.16 for Gunnstaks' attorney's fees. (CR

14S). Moroch filed a Motion to Set Aside Default Judgment and for New Trial. (CR

152). After a three-day hearing on Moroch's Motion for New Trial, a new trial was

granted "with conditions," essentially agreements and stipulations as to how to proceed

most expeditiously with a new trial, and the case was reopened. (5 SRR 5).

      The parties went to trial again for three more days on November 10, 200S on

Collins' post-divorce motion and Gunnstaks' intervention, which again resulted in a

$55,376.16 judgment to Gunnstaks for Collins' unpaid attorney's fees on May 4, 2009.

(CR 296-97). Collins' appeal of the May 4,2009 order followed. (CR 303).




                                                                                        3
                        STATEMENT ON ORAL ARGUMENT

       Oral argument would give the Court a more complete understanding of the facts

presented in this appeal, and oral argument would significantly aid the Court in deciding

this case. See Tex. R. App. P. 38.1(e), 39.1(c), 39.1(d). This case has a long and storied

history, both in the trial court and in this Appellate Court. Argument from the parties

would simplity the issues now before the Court by allowing counsel to bring facts and

record references relevant to the disposition of the issues to the Court's attention with the

opportunity for the Court to ask questions of counsel.




                                                                                           4
                        REPLY TO ISSUES PRESENTED

REPLY TO ISSUE 2. The trial court did not abuse its discretion when it
awarded AppelleelIntervenor attorney's fees in the amount of $55,367.16
because: 1) Appellant waived any complaint at trial(s) as to whether Gunnstaks
was a proper intervenor, the amounts due to Gunnstaks, and any "accord and
satisfaction" defense; 2) the record presents ample evidence that he was a proper
intervenor; 3) there was no accord and satisfaction between the parties as to the
entire amount billed, therefore the total amount remains due and owing; 4) there
was a contract upon which this fee award could be based, and alternatively; 5)
Gunnstaks' equitable claim of quantum meruit substantiates the award in the
absence of a contract.




                                                                                    5
                                   STATEMENT OF THE FACTS

         Appellee/Intervenor C. "Luke" Gunnstaks provides this, his version of the facts

herein, and challenges all factual statements made in Appellant Christy Calvert Collins'

brief. Tex. R. App. P. 38.1(g), 38.2(a)(1)(B).

         Gunnstaks only addresses facts relevant to the intervention claim, as his brief is

narrowly tailored to focus on his justiciable interest in this appeal.

        Collins signed an Attorney/Client Contract ("Contract") with Gunnstaks on

April 2, 2001. (CR 35). In the contract, she confirmed that she was of "clear mind

and sound judgment and capable of understanding and executing my obligations under

this contract.. .. I agree to be bound by the terms of this contract." (CR 35). Along with

the signed contract, Collins submitted a $10,000 (ten thousand dollar) Engagement

Fee to Gunnstaks. (CR 35). The Attorney/Client Contract remained in effect until

the court granted Gunnstaks' Motion to Withdraw as Counsel for Petitioner on January

18, 2005. (CR 9, Appendix Tabs A and B, 2 SCR                                _l     Until his withdrawal,

Gunnstaks had dutifully remained her Attorney of Record and had appeared on her

behalf in multiple post-judgment trial court hearings and throughout the appellate

process. (3 RR 67-68,7 RR 86, 2 RR 7).

        When the parties divorced, Gunnstaks was awarded attorney's fees in the

amount of $99,408.01, with an additional $5,000.00 awarded to the successful party


2Gunnstaks' Motion for Withdrawal and the accompanying Order were not originally part of the Clerk's Record,
but Appellee/Intervenor has requested that they be supplied to this Court in volume two of a Supplemental Clerk's
Record, to be filed with the Court.
                                                                                                               6
in the event of an appeal, and an additional $7,500.00 in the event the case was

appealed to the Texas Supreme Court (Appendix Tab C at pages 31, 35, 2 SCR_l

The court ordered Collins to pay $76,500.00 as a lump sum child support payment to

Moroch within one (1) day after the closing on the sale of the Deloache residence,

which she was awarded pursuant to the parties' decree. (Appendix Tab C, pages 27,

32, 2 SCR _, 2 RR 5-6).                  Further, the decree specified that Collins would be

responsible for all debts, charges, liabilities, and other obligations incurred solely by

the wife from and after September 18,2000, unless express provision is made to the

contrary. (Appendix Tab C, page 29, 2 SCR _). Gunnstaks' attorney's fees for his

representation of Collins during the divorce remained due and owing after the offset

in the amount of$20,408.25. (3 RR 15, CR 37-47).

        After the divorce, Collins incurred $33,633.91                        III   attorney's fees due to

Gunnstaks for post-divorce representation, including his work in assisting counsel for

Collins on the appellate level, and fees associated with pursuing his intervention

claim, which had to be filed after Collins failed to pay her bill as agreed. (lnt. Exh.

5, 9, 10, 3 RR 53-55). After the first trial on the matter, held April 10, 2008, in

which a default judgment was entered against Moroch, Gunnstaks was also awarded

an additional $2,325 for time expended from February 2008 through the time of trial,

for a total award of $55,367.16.                 (3 RR 54-55, 3 RR 66).                Collins had made a

payment of $5,000.00 to Gunnstaks on March 7, 2003 and, despite a substantial bill

3 The Final Decree of Divorce signed on January 15, 2003 was not originally part of the Clerk's Record, but
Appellee/Intervenor has requested that it be supplied to this Court in volume two of a Supplemental Clerk's Record,
to be filed with the Court.
                                                                                                                 7
due and owing, she did not make another payment until over twenty (20) months

later, when she mailed Gunnstaks a $2,000.00 check on or around November 14,

2004. (Int. Exh. 9 at pages 7, 10, Int. Exh. 11).

       Enclosed with Collins' check for $2,000.00 was a letter thanking him for his

"excellent representation" of her in the divorce trial.     (Int. Exh. 11 at page 1).

Collins' letter further stated as follows: "I do appreciate your appearing on my

behalf in front of the appellate judges and for this service I am enclosing my

final payment to you."      (lnt. Exh. 11 at page 2).     Collins also wrote that she

"assume[d] our professional relationship is terminated," and as a result, Gunnstaks

filed a motion to withdraw, which the Court granted on January 18,2005. (Int. Exh.

11 at page 3, CR 9) Gunnstaks applied the $2,000.00 payment to Collins' bill on

November 17, 2004, specifically for his services rendered associated with his

appellate court appearance on her behalf, and on December 17, 2004, Gunnstaks sent

her a letter thanking her for her partial payment. (lnt. Exh. 9 at page 10, Int. Exh.

12).

       After Gunnstaks filed his Original Petition in Intervention seeking to recover

his attorney's fees, Collins responded by filing a Motion to Strike and alternatively, a

Motion for Partial Summary Judgment. (CR 21, CR 51). During the hearing on the

Motion to Strike and the Motion for Partial Summary Judgment, Collins argued that

since she wrote "Final Payment" on her $2,000.00 check sent to Gunnstaks, that his

depositing her check therefore operated as an accord and satisfaction. (3 RR 59, CR

                                                                                      8
52). Gunnstaks had marked out "Final" prior to depositing the check (3 RR 59). The

trial court denied both Collins' Motion to Strike and her Motion for Partial Summary

Judgment (CR 131).

      The trial court awarded Gunnstaks a judgment for his attorney's fees in the

amount of $55,367.16 after both trials. (CR 148, CR 297). This appeal followed.




                                                                                   9
                                SUMMARY OF THE ARGUMENT

       The trial court did not abuse its discretion when it awarded AppelleeiIntervenor

attorney's fees in the amount of $55,367.16 because: 1) Appellant waived any

complaint at trial(s) as to whether Gunnstaks was a proper intervenor, the amounts due

to Gunnstaks, and any "accord and satisfaction" defense; 2) the record presents ample

evidence that he was a proper intervenor; 3) there was no accord and satisfaction

between the parties as to the entire amount billed, therefore the total amount remains

due and owing; 4) there was a contract upon which this fee award could be based, and

alternatively; 5) Gunnstaks' equitable claim of quantum meruit substantiates the award

in the absence of a contract.




                                                                                          10
                                        ARGUMENT

REPLY TO ISSUE 2. The trial court did not abuse its discretion when it
awarded Appellee/lntervenor attorney's fees in the amount of $55,367.16
because: 1) Appellant waived any complaint at trial(s) as to whether Gunnstaks
was a proper intervenor, the amounts due to Gunnstaks, and any "accord and
satisfaction" defense; 2) the record presents ample evidence that he was a proper
intervenor; 3) there was no accord and satisfaction between the parties as to the
entire amount billed, therefore the total amount remains due and owing; 4) there
was a contract upon which this fee award could be based, and alternatively; 5)
Gunnstaks' equitable claim of quantum meruit substantiates the award in the
absence of a contract.

                                 Argument & Authorities

I.     Standard of Review and Applicable Law

       The determination as to whether an intervention is properly before the court is

subject to the wide discretion of the trial court. Rogers v. Searle, 533 S.W.2d 440,

443(Tex.Civ.App.-Corpus Christi 1976, no writ). To determine whether a trial court

abused its discretion, this Court must decide "whether the trial court acted without

reference to any guiding rules or principles; in other words, whether the act was arbitrary

or unreasonable."     Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Merely

because a trial court may decide a matter within its discretion in a different manner than

an appellate court in a similar circumstance does not demonstrate that an abuse of

discretion occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42

(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).

       Rule 60 of the Texas Rules of Civil Procedure provides that "[a]ny party may

intervene, subject to being stricken out by the court for sufficient cause on the motion of

the opposite party .... " Tex. R. Civ. P. 60.   An intervenor is not required to secure the
                                                                                         11
court's permission to intervene; the party who opposed the intervention has the burden to

challenge it by a motion to strike. See In re Nation, 694 S.W.2d 588 (Tex.App.-

Texarkana 1985, no writ); Jones v. Springs Ranch Co., 642 S.W.2d 551 (Tex.App.-

Amarillo 1982, no writ).

       If a party has a justiciable interest in a pending suit, that party may intervene as a

matter of right. In re Union Carbide Corp., 273 S.W.3d 152, 154 (Tex. 2008). A party

has a justiciable interest in a lawsuit, and thus a right to intervene, when the party's

interests will be affected by the litigation. Intermarque Auto. Prods v. Feldman, 21

S.W.3d 544, 549 (Tex.App.-Texarkana 2000, no pet.). That interest, however, must be

more than remote or contingent. Rogers, 533 S.W.2d at 442. Furthermore, under Rule

60, a person or entity has the right to intervene if the intervenor could have brought the

same action, or any part thereof, in his own name, or, if the action had been brought

against him, he would be able to defeat recovery, or some part thereof. Inter-Continental

Corp. v. Moody, 411 S.W.2d 578,589 (Tex.Civ.App.-Houston [1st Dist.] 1966, writ

refd n.r.e.); Texas Supply Center, Inc. v. Daon Corp., 641 S.W.2d 335, 337 (Tex.App.-

Dallas 1982, writ refd n.r.e). The interest asserted by the intervenor may be legal or

equitable. Moody, 411 S.W.2d at 589. Although the trial court has broad discretion in

determining whether an intervention should be stricken, it is an abuse of discretion to

strike a plea in intervention if: (1) the intervenor meets the above test; (2) the intervention

will not complicate the case by an excessive multiplication of the issues; and (3) the

intervention is almost essential to effectively protect the intervenor's interest. Moody, 411

                                                                                            12
S.W.2d at 589; Daon Corp., 641 S.W.2d at 337. Ultimately, the right of intervention is

rooted in equity. Zeifman v. Michels, 229 S.W.3d 460,464 (Tex. App.-Austin 2007, no

pet.).

II.      Appellant waived 1) any complaint as to whether Gunnstaks' intervention
         was proper; 2) any complaint as to the amount awarded to Gunnstaks; and 3)
         her "accord and satisfaction" defense.

         To preserve a point for appellate review, a party must make a timely, specific

objection or motion to the trial court that states the grounds for the ruling sought with

sufficient specificity, unless the grounds are apparent from the context, must obtain a

ruling on the objection or motion, and must comply with the rules of evidence or

procedure. Tex. R. App. P. 33.1; Knapp v. Wilson N Jones Memorial Hasp., 281 S.W.3d

163, 170 (Tex. App.-Dallas 2009, no pet.).

         Appellant waived any complaint as to whether Gunnstaks' intervention was

properly before the court.    At both trials, Gunnstaks proceeded to put on his case

regarding attorney's fees without objection from Collins. At the first trial, counsel for

Collins even seemingly joins Gunnstaks in his request for his unpaid fees, stating as

follows: "And so we would ask the Court to award attorney's fees in an amount that

the Court would think is fair and reasonable to Mr. Gunnstaks but from Mr.

Moroch." (3 RR 19). During the second trial on the matter, when Moroch was present,

counsel for Collins nonetheless stated the following: "Mr. Gunnstaks was left hanging,

Your Honor. What - the only issue with Mr. Gunnstaks is back to the issue that he

cashed a paid in full check and got the accord and satisfaction issue that we - that's

                                                                                      13
where our problem is." (7 SRR 89-90). Here, counsel for Collins identified the only

issue Collins had with Gunnstaks' intervention, and it was not an objection to him merely

bringing his intervention claim before the court. Furthermore, Collins did not make any

mention of whether Gunnstaks' intervention was properly before the court in her Motion

for New Trial. (CR 301). Collins cannot now complain to this Court that Gunnstaks'

intervention was not properly before the trial court when she failed to adequately

preserve error as to this complaint at the triallevel. 4 See Tex. R. Civ. P. 33.1.

         Second, Collins waived any complaint as to the amount awarded to Gunnstaks. It

is abundantly clear from the record that neither party took issue with Gunnstaks' fees, so

long as that party was not responsible for the payment of his fees. Collins cannot now

complain of the fee award against her when her counsel failed to object to the Intervenor

being paid, and being paid in the amount of $55,367.16. Collins's testimony evidences

her waiver of the intervention issue:

        Mr. Gunnstaks: Ma'am are you also asking that the Court reimburse you for
        the intervenor's fees, my own fees, out of the judgments that you're asking
        the Court to order that Mr. Moroch pay you? Let me rephrase that question.
        Are you asking Mr. Moroch be ordered to pay the intervenor's fees as well?

        Collins: Yes.

(3 RR42).

        Likewise, Appellant, during the Motion for New Trial on September 19, 2008, did

not take issue with the fact that Gunnstaks had an intervention claim for attorney's fees,

4 Collins did file her "Motion to Strike Plea in Intervention and in the Alternative: Defendant Christy Collins's
Motion for Partial Summary Judgment" after Gunnstaks filed his intervention, which the trial court denied on
November 27,2007; however, Collins failed to timely object when the trial court took up the issue of Gunnstaks'
intervention claim at each of the next two trials. (CR 51, CR 131).
                                                                                                              14
but only took issue "who pays them." (5 SRR 5). Despite being present at this hearing,

counsel for Collins remained silent as counsel for Moroch stipulated to the existence and

amount of Gunnstaks' fees. (5 SRR 5).

      At the second trial, counsel for Collins clearly waived any objection to Gunnstaks'

attorney's fees by acquiescing, if not even stipulating, to the existence of the claim and

the amount:

      The Court: But we've already established what his amount of attorney's fees
      and got down to how he would -

      Ms. Gaus: Right.

(6 SRR 5).

      Later she again fails to object at the end of that same hearing, when the trial court

announces Mr. Gunnstaks is not needed at trial:

      The Court: We don't need Mr. Gunnstaks again. I think his number was in
      that thing, 54 something thousand dollars.

      Ms. Gaus: I don't even know why he's concerned, but he said that he wrote
      a letter and said he couldn't be here today.

      The Court: His office called, and I said I didn't - I thought it was my
      understanding that we just had his number and that was a -okay. I'll see
      y'all on the 29th.

      Mr. Wei!:     Thank you.

      The Court: Thank you very much.
      (End of proceedings).

(6 SRR 91).




                                                                                        15
       Again at the second trial, on March 13, 2009, counsel for Collins failed to object

to the trial court's characterization that an agreement existed among the parties that

Gunnstaks claim was proper, and that the amount due to him was stipulated to be

$55,367.16:


       The Court: I understand what you're saying, but I think where we are right
       now is that we had an agreement whenever we reopened this case that his
       intervention stood at that $55,000 amount.

       Mr. Wei!: We're not arguing about the amount. We're arguing about
       what it arises from and he's not entitled to it from Mr. Moroch. I litigated
       with Mr. Gunnstaks, and I generally find that we are in agreement about the
       fuel necessary to cope with each other.

(8 SRR 92).

       Furthermore, Counsel for Collins takes no issue in the form of an objection with

the trial court's characterization of $55,000.00 in fees being "a debt that Ms. Collins has

to Mr. Gunnstaks," or with Gunnstaks' agreement with the Judge that he "would like to

be at the top of the stack and equivalent to or close to Ms. Gaus," when fees are awarded.

(8 SRR 108).

      Lastly, despite the great lengths to which Collins has gone to attempt to establish

an accord and satisfaction defense, discussed in detail, infra, counsel for Collins

effectively waived this defense at the April 10, 2008 hearing:

       Ms. Gaus: Without - just given the circumstances as we have them today
       and we're here today to try to finalize this, I'm not going to deal with the
       accord and satisfaction issue as it's our position that all of these fees would be
       unnecessary if the appeal had not proceeded.

(3 RR 19).
                                                                                        16
       Faced with the likelihood of a default judgment against Moroch, counsel for

Collins took little issue with Gunnstaks' fees.     After waiving any complaint to his

intervention, the amount of his fees, and her defense, Collins cannot now ask the Court to

ignore her counsel's waivers, agreements, and stipulations and overturn an unfavorable

judgment against her. Collins accepted the benefit of a default judgment against Moroch,

then failed to adequately complain to the trial court when the case was reopened. (8 SRR

92). Collins' attempt to "undo" what has been agreed to, waived, and ordered at the trial

court level must fail because she failed, time and time again, to properly object at trial,

and at times counsel for Collins even agreed to what Collins now complains about to this

Appellate Court.

III.   The trial court did not abuse its discretion in finding Gunnstaks' intervention
       was proper.
       Appellee/Intervenor Gunnstaks is a proper party to this suit because not only is

his interest greater than a mere contingent or remote interest, he also clearly meets the

test set forth in Inter-Continental Corp. v. Moody, 411 S.W.2d 578, 589

(Tex.Civ.App.-Houston [1st Dist.] 1966, writ refd n.r.e.); see also Rogers, 533

S.W.2d at 442. First, Gunnstaks could have brought the same action, or any part

thereof, in his own name. Moody, 411 S.W.2d at 589. This case concerns a post-

divorce petition for the enforcement of property division and expenses incurred during

the appeal of this case as well as a petition to recover losses to the sole piece of real

property awarded in the divorce decree which losses accrued while the an appeal of the

property division was pending. (CR 12-15). While clearly Gunnstaks' intervention was
                                                                                         17
the most proper, most efficient suit to bring in order to recover his fees, it is feasible that

Gunnstaks might have brought suit for the property depreciation about which Collins

complained, if this were his only judicial recourse in obtaining his attorney's fees.

Gunnstaks has a justiciable interest in that portion of the property division awarded to

Collins under the terms of the Divorce Decree wherein Collins is ordered to pay

her own attorney's fees. The final decree of divorce states in pertinent part as follows:


       Section XVI. Attorney's Fees
      IT IS ORDERED that THOMAS FRANCIS MOROCH shall pay to
      Petitioner, CHRISTY CALVERT COLLINS MOROCH, reasonable
      and necessary attorney's fees of $99,408.01, for which a judgment is
      granted in favor of CHRISTY CALVERT COLLINS MOROCH as
      costs against THOMAS FRANCIS MOROCH, Respondent. IT IS
      FURTHER ORDERED AND DECREED that the Court grants an
      additional award of $5, 000.00, if this case is appealed to the Court of
      Appeals and an additional amount of $7,500.00, if the case is appealed to
      the Supreme Court of Texas, to Petitioner, CHRISTY CALVERT
      COLLINS MOROCH against THOMAS FRANCIS MOROCH,
      Respondent, subject to a dollar-for-dollar credit against the lump-sum
      payment due to THOMAS FRANCIS MOROCH from CHRISTY
      CALVERT COLLINS MOROCH per Section XI B. above. IT IS
      FURTHER ORDERED that each such amount shall accrue post-
      judgment interest, if, as, and where applicable, at the statutory interest rate
      of six percent (6%) simple interest per annum, compounded annually,
      for which let execution issue upon request.


See Final Decree of Divorce (Appendix Tab C at page 35, 2      SCR~.


        Gunnstaks was entitled to a substantial payment from the division of property

 awarded to Collins, and he intervened in effort to obtain his rightful payment for

 legal services rendered when she filed her post-judgment suit to collect monies due

 to her from Moroch. (CR 21). The equitable facts entitling Gunnstaks to intervene
                                                                                            18
are numerous, as Gunnstaks had provided legal services to Collins under an

enforceable contract (whether expressed or implied-in-fact) which foreseeably

also included post-judgment services rendered. See Moody, 411 S.W.2d at 589.

(CR 34). Collins refused to pay for legal services rendered on her behalf pursuant

to the terms of the enforceable contract.         (CR 21-36).      The intervention is

completely necessary to protect the Intervenor's interest in funds claimed by

Petitioner pursuant to awards for attorney's fees contemplated and foreseeably

awarded in the divorce decree for reasonably foreseeable post-judgment and

appellate attorney's fees and expenses incurred, which were not limited by the

terms of the divorce decree to the specific amounts therein set forth.

       Secondly, the intervention did not complicate the case by an excessive

multiplication of the issues. Id. Gunnstaks' claim for attorney's fees is a simple issue:

Collins was already seeking her own post-judgment attorney's fees from

Moroch.     Intervenor is owed a substantial sum of money from the property

division that is the subj ect of this suit. As evidenced by the record, Gunnstaks was

not even required to be present on some days of trial, he needed very little of the

court's time to present his case, the parties had stipulated on the record as to the

amount of his judgment (but not as to by whom it should be paid), and, of course,

since this was a bench trial, there was no issue as to a jury confusing the issues with

the addition of Gunnstaks' claim. (6 SCR 5, 8 SCR 92). Counsel for Collins put on

testimony as to their fees in the post-divorce suit, and both the nature of and time

                                                                                        19
spent by Gunnstaks in his presentation was similar to that of other counsel. (3 RR

67-73, 8 SRR 70-83). Caselaw only requires no excessive multiplication of the

issues, and Gunnstaks would submit that his intervention required no multiplication

of the issues. Id. Out of consideration of conserving scarce judicial resources and

cognizant of the principle of judicial economy, Gunnstaks did not file a separate suit

in another court, as this would have resulted in excessive multiplication of the

issues and the usurpation of another trial court's time that would have been

painfully unfamiliar with the facts and long history of this complicated case.

       Lastly, the intervention is certainly "almost essential" to effectively protect the

intervenor's interest, and more accurately here, absolutely essential to do so. Id.

Gunnstaks relied upon Collins' former promise to pay her entire balance due upon the

sale of the residence which was the subject of the appeal from the divorce in addition

to Intervenor's reliance upon the terms of the contract for legal services. (3 RR 60-61,

63-64).   Collins' failure to pay her accrued legal fees to Gunnstaks placed a

tremendous burden on Gunnstaks' law practice. (Appendix Tab A, 2           SCR~.      She

then failed to pay those fees following the eventual sale of the million-dollar residence

awarded to her in the divorce decree. (Appendix Tab C at page 28, 2 SCR _, 3 RR 60-

61, 63-64). The intervention is completely necessary to protect the Intervenor's

interest in funds claimed by Collins pursuant to awards for attorney's fees

contemplated and foreseeably awarded in the divorce decree for reasonably

foreseeable post-jUdgment attorney's fees and appellate attorney's fees and

                                                                                         20
 expenses incurred. Intervening in the post-divorce suit was necessary to protect

 Gunnstaks' rights, and it was the most efficient use of judicial resources for him to do

 so in the post -divorce suit.

   IV.     There was no accord and satisfaction between Collins and Gunnstaks as to
           the amounts due and owing on her entire bill.

      The accord and satisfaction defense rests upon a contract, express or implied, in

which the parties agree to the discharge of an existing obligation by means of a lesser

payment tendered and accepted. See Jenkins v. Henry C. Beck Co., 449 S.W.2d 454,455

(Tex. 1969). To effectuate an accord and satisfaction, the evidence must establish the assent

of the parties to an agreement that the amount paid by the debtor to the creditor was in full

satisfaction of the entire claim.     Case Funding Network v. Anglo-Dutch Petroleum

Internat'l, Inc., 264 S.W.3d 38, 50 (Tex.App.-Houston [1st Dist.] 2007, pet. denied); see

also Jenkins, 449 S.W.2d at 455. There must be an unmistakable communication to the

creditor that tender of the lesser sum is upon the condition that acceptance will constitute

satisfaction of the underlying obligation. Case Funding Network, 264 S.W.3d at 50. The

condition must be plain, defmite, and certain and "the statement accompanying the tender

of a sum less than the contract price must be so clear, full, and explicit that it is not

susceptible to any other interpretation. !d.; see also Jenkins, 449 S.W.2d at 455.

      The record provides ample support that Collins' accord and satisfaction claim is

merely a sham defense born from a letter and check she has now conveniently staged and

recast to avoid her obligations to Gunnstaks. For Collins to equate these circumstances

with the affirmative defense of accord and satisfaction is completely erroneous. Gunnstaks
                                                                                          21
in no way agreed to discharge her obligation to pay in full for the legal services he had

rendered. By cashing her check for his appearance in the Court of Appeals, as Collins had

stated in her letter which accompanied her final payment that specific appearance,

Gunnstaks accepted this "final payment" solely for his appellate appearance on Collins'

behalf (lnt. Exh. 11, Movant's Exh. 2). Gunnstaks' reasonable interpretation that

Collins' $2,000.00 check and the accompanying letter were providing payment solely

for his appearance before the Appellate Court is perhaps the best evidence that an

accord and satisfaction did not occur, as clearly the "statement accompanying the

tender" was not "so clear, full, and explicit that it is not susceptible to any other

interpretation." See Case Funding, 264 S.W.3d at 50.

      Gunnstaks did not agree that Collins' entire debt to him had been satisfied.

Additionally, Collins did not state to him that her "final payment" was for her

entire outstanding debt. Rather she specifically stated that this payment was for

Gunnstaks' appearance on her "behalf in front of the appellate judges and for this

service, I am enclosing my final payment to you." (lnt. Exh. 11 at page 2). These

facts do not reflect the agreement of the parties as required by the affirmative

defense of accord and satisfaction.

      Collins has not exhibited good faith in her "final payment" check to

Gunnstaks for his appellate appearance on her behalf. To the contrary, she has

attempted to verbally manipulate this payment to cover other outstanding debts for

Gunnstaks' legal services that he previously rendered on her behalf. Collins has tried

                                                                                      22
to justifY the affinnative defense of accord and satisfaction, but has failed to do so due

to her own paper trail of contradictions and untruths. While an accord and satisfaction

may have occurred as to the portion of Gunnstaks' fee attributable solely to his

appearance before the appellate justices for oral argument, there was no accord and

satisfaction as to the entire debt owed to Gunnstaks by Collins. In her letter, Collins

acknowledged that Gunnstaks represented her in the course of the appeal, as she

complained of it being "lackluster and without inspiration or timeliness," while ignoring

the fact that she had retained attorney Paula Gaus specifically as her primary appellate

counsel. (lnt. Exh. 11 at page 1, CR 316). Gunnstaks' role was to continue as trial

counsel while assisting Ms. Gaus as requested by Ms. Gaus, who incidentally never

expressed any dissatisfaction with Gunnstaks' services rendered until receipt of

Collins' "Motion to Strike Plea in Intervention and in the Alternative Defendant

Christy Collin's Motion for Partial Summary Judgment." (CR 51). In her letter, Collins

further stated, "1 do appreciate your appearing on my behalf before the appellate judges

and for this service, 1 am enclosing my final payment to you." (lnt. Exh. II at page 2).

Thus, the so-called "final payment" was, in Collins' own words, specifically designated

as payment for Gunnstaks' appearance before the appellate judges, and was not intended

as a global final payment for all post-trial/appellate representation for which Collins' had

neglected to pay. (Int. Exh. 11 at page 2). Because this check as designated by Collins for

the appellate appearance was marked "final payment," yet a substantial balance remained,

Gunnstaks crossed through the word "fmal" before accepting this payment, specifically in

                                                                                           23
order to avoid any possible later misinterpretations by Collins. (Movant's Exh. 2).

       Lastly, despite the great lengths to which Collins has gone to attempt to establish

an accord and satisfaction defense, discussed in detail, supra, counsel for Collins

effectively waived this defense at the April 10, 2008 hearing:

       Ms. Gaus: Without - just given the circumstances as we have them today
       and we're here today to try to finalize this, I'm not going to deal with the
       accord and satisfaction issue as it's our position that all of these fees would be
       unnecessary if the appeal had not proceeded.

(3 RR 19).

       Faced with the likelihood of a default judgment against Moroch, counsel for

Collins took little issue with Gunnstaks' fees.      After waiving any complaint to his

intervention, the amount of his fees, and her defense, Collins cannot now ask the Court to

ignore her counsel's waivers, agreements, and stipulations and overturn an unfavorable

judgment against her. Collins accepted the benefit of a default judgment against Moroch,

then failed to adequately complain to the trial court when the case was reopened. (8 SRR

92). Collins' attempt to "undo" what has been agreed to, waived, and ordered at the trial

court level must fail because she failed, time and time again, to properly object at trial,

and at times counsel for Collins even agreed to what Collins now complains about to this

Appellate Court.

V.    A contract, whether express or implied-in-fact, existed between Gunnstaks
      and Collins; therefore, she was obligated to pay Gunnstaks for services
      rendered and accepted.
A.    Express Contract and Novation

      Collins signed an Attorney/Client Contract ("Contract") with Gunnstaks in

                                                                                        24
which she stated, "I agree to be bound by the terms of this contract." (CR 35). Collins

never revoked this Contract, was very aware of Gunnstaks' involvement during the

appeal of her case, and had even specifically requested several times that he not

withdraw during the appellate phase of the proceeding in response to Gunnstaks'

stated offers to withdraw, as reported to Gunnstaks by her appellate counsel, Paula

Gaus. Ms. Gaus also specifically requested Gunnstaks' participation in oral argument

before the Court of Appeals, which request was dutifully and zealously honored

by Gunnstaks, and for which oral argument Collins later specifically claimed to pay

Gunnstaks, thus further ratifying her obligation to pay for his continued legal services,

the value of which she clearly and specifically acknowledged by her offer of accord

and satisfaction in regard to Gunnstaks' legal preparation for and specific

appearance at oral arguments in the Court of Appeals to the extent of $2000.00 (two

thousand dollars) worth of services rendered, at the hourly rate of $350/hour. (lnt. Exh.

9).

      It is noteworthy that it was not until long after her bills had accrued from

Gunnstaks' work on her behalf, that she first asserted her argument regarding an

absence of a Contract specifically for appellate representation. (CR 51). Her argument

appears to be specifically designed to negate her financial responsibility under the

existing Contract. However, the original Contract was still in effect, and the signing of a

second Contract of the same nature would be redundant and unnecessary. As the post-

trial phase of the case continued into the appellate court, so did Gunnstaks'

                                                                                     25
authority as Attorney of Record, as did his monthly billing statements which were not

challenged until long after the appellate courts had sustained the judgment of the

trial court.    (CR 51-62).      Collins admits in her Motion for Partial Summary

Judgment that " ... C. Luke Gunnstaks continued to bill her."         (CR 53).    Collins

conspicuously ignored the fact that Gunnstaks' bills also include billing for post-

judgment litigation in the trial court regarding entry of the final decree which does not

remotely qualify as "appellate representation" and is clearly covered under the terms of

the original contract. (lnt. Exh. 9).

       Having willingly accepted the benefit of services rendered on her behalf and at her

request, Collins entered into a novation by agreement of that specific portion of the

original contract which called for a separate retainer for appellate representation. A

novation occurs if a contract evidences an intention to relinquish and extinguish pre-

existing claims and rights of action; in lieu of an old obligation, a party accepts the

promise of performance of the new obligation. Fulcrum Cent. v. AutoTester, Inc.,

102 S.W.3d 274, 277 (Tex. App.-Dallas 2003, no pet.). A novation discharges the

original obligation and only the new obligation may be enforced. !d. Here, the new

obligation was Gunnstaks' role as co-counsel during the appellate process.

      Furthermore, with or without a novation occurring as to the original contract,

Collins' statement in her own Motion for Partial Summary Judgment that, "C. LUKE

GUNNSTAKS was included as trial counsel in the appeal, but did not have the

responsibility to represent CHRISTY CAL VERT COLLINS in the appeal," should be

                                                                                    26
accepted as a judicial admission that Collins included Gunnstaks as trial counsel in

her appeal, and she should be estopped from denying any reasonably foreseeable

consequences of that representation, including her own obligation to pay for legal

services rendered post-judgment on her behalf at her specific request and to her

benefit, as she was successful in her appeal. (CR 53).

       In further support, Collins had signed an Attorney IClient Contract ("Contract")

with Gunnstaks on April 2, 2001. (CR 34). In this Contract, she confirmed that she

was of "clear mind and sound judgment and capable of understanding and executing

my obligations under this contract.. .. I agree to be bound by the terms of this contract."

(CR 35). Along with the signed contract, Collins submitted a $10,000 (ten thousand

dollar) Engagement Fee to Gunnstaks. (CR 35). This Contract remained in effect

until Gunnstaks' Motion to Withdraw as Counsel for Petitioner was found by the Court to

be with merit, and was therefore granted on January 18, 2005. (Appendix Tab A,

2 SCR     ).   In his motion to withdraw, Gunnstaks advised the Court that his

representation of Collins had "unreasonably burdened Movant financially."

(Appendix Tab A, 2 SCR _). Until his withdrawal, Gunnstaks had dutifully remained

her Attorney of Record and had appeared on her behalf in multiple post-judgment trial

court hearings and throughout the appellate process, and to say that he did not have the

duty and responsibility to do so is fallacious. (Int. Exh. 9).

        The fact that Collins failed to pay her accrued legal fees to Gunnstaks in

no way impacted his authority, duty, and responsibility to zealously represent

                                                                                        27
her. This responsibility would have continued but for the Motion to Withdraw as

Counsel for Petitioner that he was ultimately forced to file, as the monies owed to and

time spent by Gunnstaks in regard to Collins' continued representation had become

too burdensome to his law practice in light of her failure to make any payments on her

account for so long a period, while Intervenor relied upon her former promise to pay

her entire balance due upon the sale of the million-dollar residence which was the

subject of the appeal in addition to Intervenor's reliance upon the terms of the

existing contract for legal services. (Appendix Tab C at page 28,2 SCR _,3 RR 60-61,

63-64).

          In her argument, Collins seems to claim that there was no contract between

Collins and Gunnstaks for appellate representation.        (App. Brief at page 22).

Appellant preumably refers to the "Scope of Engagement" as referenced on

Gunnstaks' "Intake Report" as written on April 2, 200 I as part of the Contract. (CR

34). The engagement at that time was for representation in a divorce and custody

proceeding. (CR 34). Neither Gunnstaks nor Collins could at that time foresee the

appellate work that would follow. For that reason, the initial scope was accurately

defined on the Intake Report along with a statement that read: "NO TAX,

CRIMINAL,        BANKRUPTCY        OR    APPELLATE        REPRESENTATION.          NO

DEFENSE OF CONTEMPT ALLEGATION WITHOUT SEPARATE SPECIFIC

RETAINER." (CR 34).

      On April 3, 2003, the appeal of the case was filed. (CR 316). Collins was

                                                                                    28
aware of and accepted Gunnstaks' assistance in the appellate process as her

Attorney of Record in the trial court. (lnt. Exh. 9). Moreover, Ms. Gaus, Collins'

appellate attorney required Gunnstaks' signature on pleadings filed in the Dallas

Court of Appeals.

       Only long after Gunnstaks provided assistance, prepared to appear, did appear

and argued on Collins' behalf in the Court of Appeals and continued to bill her

according to the contractual billing terms to which she had agreed two years prior, did

Collins belatedly first raise any issue regarding any excuse not to pay for any services

rendered, including any excuse based upon an absence of a specific contract for the

appellate work. (CR 53). She first raised this argument only after her ultimate

triumphs in the Court of Appeals and in the Supreme Court of Texas.

        During the time of Gunnstaks' assistance, she was conspicuously silent on

the matter while refusing to accept his multiple offers to withdraw. However, only

upon receiving Gunnstaks' Original Petition in Intervention for Attorney's Fees for

services rendered up until the signing of the Order of Withdrawal, did Collins first

raise this argument to avoid payment to Gunnstaks, whose assistance she had

specifically requested and had readily accepted.

B.     Contract Implied-in-Fact

      In the event that the contract between Collins and Gunnstaks is deemed

inapplicable to the appellate representation, a contract implied-in-fact arises from the

conduct of these parties. The Fraud- Tech case explains a contract implied in fact:

                                                                                     29
       A contract implied in fact is one form of an enforceable contract; it
       is based on a tacit promise, one that is inferred in whole or in part from
       the parties' conduct, not solely from their words .... Even if an offer and
       acceptance are not recorded on paper, dealings between parties may result
       in an implied contract where the facts show that the minds of the
       parties met on the terms of the contract without any legally expressed
       agreement. Accordingly, the parties' conduct may convey an objective
       assent to the terms of an agreement, and whether their conduct
       evidences their agreement is a question to be resolved by the finder of
       fact. If the finder of fact determines that one party reasonably drew the
       inference of a promise from the other party's conduct, then that promise
       will be given effect in law.

Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 385-86 (Tex.App.-Fort
Worth 2003, pet. denied).
       In Collins' own words penned to Gunnstaks on November 14, 2004, she

acknowledged his continued involvement on her behalf in the appellate case, and

thanked him for appearing before the appellate judges for her. (Int. Exh. 11). In

addition, she enclosed a check specifically designated as payment for this

particular service. (Int. Exh. 11, Movant's Exh. 2). Collins' conduct supports the

argument that a contract implied-in-fact existed, and that any inference drawn

by Gunnstaks in accordance with this conduct is reasonable.

VI.   Gunnstaks' sworn account claim provides a clear basis for recovery of his
      attorney's fees from Collins.

       Appellant erroneously claims in her brief, without argument or authority, that

Gunnstaks' sworn account claim is based upon a contract that does not include appellate

representation, and that all contracted divorce fees were paid in full through the date of

divorce.   (App. Brief at page 22); see also Tex. R. App. P. 38.1(i).      The elements


                                                                                       30
necessary to prove a suit on a sworn account are: (1) a sale and delivery of goods or

services; (2) the charges on account are just, i.e., the prices are charged in accordance

with an agreement or, in the absence of agreement, are usual, customary, and reasonable

prices; and (3) the amount remains unpaid. Tex. R. Civ. P. 185. The cause of action must

be supported by the affidavit of the party, his agent or attorney taken before some officer

authorized to administer oaths, to the effect that such claim is, within the knowledge of

affiant, just and true, that it is due, and that all just and lawful offsets, payments and

credits have been allowed. Tex. R. Civ. P. 185; see also Solano v. Syndicated Office Sys.,

225 S.W.3d 64, 67 (Tex.App.-El Paso 2005, no pet.). Gunnstaks fully complied with

the sworn account requirements, as set forth in his Original Petition for Intervention and

his First Supplemental Petition in Intervention for Attorney's Fees. (CR 24, SCR 43).

To the extent Collins may not have waived her "sworn account" argument due to her

failure to cite any authority on this issue in her brief, Gunnstaks would submit that

Collins' argument is without merit, as Gunnstaks' Original Petition in Intervention

specifically included a request for additional anticipated fees in the intervention, and his

First Supplemental Original Petition in Intervention for Attorney's Fees provided the

requisite supplementation of his billing records to substantiate the portion of his

attorney's fee award that might include his post-divorce representation of Collins under

his sworn account theory.

      Furthermore, as discussed in detail, supra, and incorporated herein by reference,

Collins waived any objection to the amount of the judgment to Gunnstaks by failing to

                                                                                         31
object at trial to the many references to the amount due to Gunnstaks being agreed and/or

stipulated to by the parties.

VII.   Alternatively, in the absence of a finding of a contract between Gunnstaks
       and Collins, Gunnstaks is entitled to recover attorney's fees under the theory
       of quantum meruit.

       Quantum meruit is an equitable remedy based on the promise implied by law to

pay for beneficial services rendered and knowingly accepted. Vortt Exploration Co., Inc.

v. Chevron, U.S.A., Inc., 787 S.W.2d 942, 944 (Tex. 1990). Founded on unjust

enrichment, quantum meruit will be had when non-payment for the services rendered

would "result in an unjust enrichment to the party benefitted by the work." Id. (quoting

City of Ingleside v. Stewart, 554 S.W.2d 939, 943 (Tex.Civ.App.-Corpus Christi 1977,

writ refd n.r.e.)). To recover under quantum meruit, a claimant must prove that:

(I) valuable services were rendered or materials furnished;

(2) for the person sought to be charged;

(3) which services and materials were accepted by the person sought to be charged, used

and enjoyed by him;

(4) under such circumstances as reasonably notified the person sought to be charged that

the plaintiff in performing such services was expecting to be paid by the person sought to

be charged.

Id.

       In her November 14, 2004 letter, Collins thanked Gunnstaks for his

appearance in the appellate court and enclosed a check for that serVIce, then

                                                                                       32
criticized his performance in the appellate phase of her case, despite the fact that she

had retained lead appellate counsel which she had specifically asked Gunnstaks to

assist. (Int. Exh. II).    In the final paragraph of this letter, in reference to the

enclosed payment for the appellate court appearance, Collins stated, "If you have an

objection to this payment, I will be more than happy to meet you in a fee dispute.

Otherwise I will assume that our professional relationship is terminated." (Int. Exh.

II at page 3). This correspondence does not inform him that she did not require his

continuing services during the appellate process, and further, Gunnstaks did not

receive any other notice of a desire by Collins that Gunnstaks render no further

services at any time prior to receipt of her November 14, 2004 letter; having received

it, he then filed a Motion to Withdraw which was eventually entered by the Court on

January 18,2005. (CR 9). Thus, Gunnstaks' right to recover in quantum merit is

based on a promise implied by law for beneficial services rendered and knowingly

accepted. Vortt, 787 S.W.2d at 944. Accordingly, the record provides ample support

for Gunnstaks' quantum meruit claim:

   1. Valuable services were rendered by him;

      Collins' November 14, 2004 letter clearly demonstrates her receipt, acceptance

and benefit(s) derived from Gunnstaks' services. (Int. Exh. II).

   2. The services were rendered for the recipient sought to be charged;

      The services rendered were for the benefit of Collins, and she was billed for

such as evidenced by Gunnstaks' billing records. (Int. Exh. 5, 9, 10).

                                                                                     33
    3. The services were accepted by the person sought to be charged;

         Again, Collins' November 14, 2004 provides clear evidence of her

acceptance of Gunnstaks' services. (Int. Exh. 11).

    4. The services were accepted under such circumstances as reasonably notified
       the recipient that the plaintiff expected to be paid.

         Again, Gunnstaks' billing statements, sent regularly to Christy to a monthly

basis, are evidence that Gunnstaks was not representing Christy on a pro bono

basis, and it could not be inferred otherwise, as he regularly billed her each month

for services rendered until the bill was ultimately referred for collection on

February 18,2005. (lnt. Exh. 5,9,10); see id.

         To forgive Collins' legal fees would result in unjust enrichment to her, and an

associated imbalance of the trial Court's just and right division of the community

estate, as she benefited from services for which she did not pay, and because Ms.

Collins was ordered to pay her own attorney's fees incurred in the divorce as part of the

trial Court's just and right division of the community estate. If the Court were to hold

that no contract existed between the parties, equity also dictates this Court uphold

Gunnstaks' judgment for fees against Collins award by the trial court on the theory of

quantum meruit, in the interests of justice and fairness.

                                        CONCLUSION

         For all of the foregoing reasons, this Court should affirm the judgment of the trial

court.


                                                                                          34
                                         PRAYER

       WHEREFORE, PREMISES CONSIDERED, Appellee/Intervenor prays that this

Court affirm the judgment of the trial court, and grant Appellee/Intervenor his costs of

court and all further relief, at law or in equity, to which he may be justly entitled, in the

interests of justice and fairness.


                                              Respectfully submitted by,

                                                /4.1dtf II~
                                              C. Luke Gunnstaks
                                              Texas Bar No. 08624370
                                              Ashlie Thomas Vieira
                                              Texas Bar No. 24042026
                                              Gunnstaks Law Office
                                              5601 Granite Parkway, Suite 350
                                              Plano, Texas 75024
                                              Tel. (972) 392-2300
                                              Fax (214) 619-0636
                                              ATTORNEYS FOR
                                              APPELLEEIINTERVENOR, C. "LUKE"
                                              GUNNSTAKS




                                                                                          35
                             CERTIFICATE OF SERVICE

        I certifY that I sent a copy of Appellee/Intervenor's Brief to each party's attorney
listed below on March 4, 2010, by the method indicated next to the attorney's name.

Appellant Christy Calvert (Moroch) Collins,      VIA CMRRR
represented by Paula Gaus
4424 W. Lovers Lane
P.O. Box 7696
Dallas, Texas 75209
Tel. (972) 252-2626
Fax (972) 869-7624

Appellee Thomas Moroch,                          VIACMRRR
represented by Christopher Weil
Wei! & Petrocchi, P.C.
1900 Thanksgiving Tower
1601 Elm Street
Dallas, Texas 75201
Tel. (214) 969-7272
Fax (214) 880-7402



                                                 Ashlie Thomas Vieira
                                                 Attorney for Appellee/Intervenor




                                                                                         36
                                          No.05-09-008U-CV

                                                   IN THE

                                  FIFTH COURT OF APPEALS

                                             at Dallas, Texas


IN THE MATTER OF THE MARRIAGE OF CHRISTY CALVERT COLLINS
               AND THOMAS FRANCIS MOROCH


       Appealed from the 301st Judicial District Court of Dallas County, Texas


                        APPELLEE/INTERVENOR'S APPENDIX



I. C. "Luke" Gunnstaks' Motion to Withdraw as Counsel for Petitioner, dated
   December IS, 2004 ...................................................................... Tab A

2. Order (on Withdrawal), dated January 18, 2005 .................................... Tab B

3. Final Decree of Divorce, dated January 15, 2003.. ................................. Tab C

4. Letter from Christy Calvert Collins to C. "Luke" Gunnstaks dated November 14,
   2004 ....................................................................................................... Tab D

5. Letter from C. "Luke" Gunnstaks to Christy Calvert Collins dated December 17,
   2004 ........................................................................................................ Tab E




                                                                                                                   37
Tab A
                             CAUSE

IN THE MATTER OF
THE MARRIAGE OF

CHRISTY CALVERT
COLLINS MOROCH
AND
THOMAS FRANCIS MOROCH                       §
                                            §
AND IN THE INTEREST OF                      §
NICHOLAS THOMAS MOROCH AND                  §
ALEXANDERIA CHRISTY MOROCH,                 §
CHILDREN                                    §            DALLAS COUNTY, TEXAS

                     C. LUKE GUNNSTAKS' MOTION TO WITHDRAW
                           AS COUNSEL FOR PETITIONER

TO THE HONORABLE JUDGE OF SAID COURT:

        COMES NOW C.         LUKE GUNNSTAKS,             attorney of          record for

CHRISTY        CALVERT    COLLINS,       f/k/a        MOROCH      Petitioner       in    the

above-styled and numbered cause and files this his Motion

to    Withdraw       as   Counsel        for     Petitioner,          and    in   support

thereof would respectfully show unto this honorable Court

the following:

                                                 I.

       On      or   about    April,        2001,        C.     LUKE   GUNNSTAKS,         the

undersigned         attorney,      was     retained          by   Petitioner      CHRISTY

CALVERT        COLLINS,     f/k/a    MOROCH        to        represent      her   in    this

cause.         Movant is compelled to withdraw from the case for

good cause.         The communications between client and attorney

are    not      conducive     to     the        attorney-client          relationship.

Furthermore,         Petitioner          CHRISTY        CALVERT       COLLINS,         f/k/a



(WITHDRAWAL)
                                                                                           1
MOROCH is already also represented by other counsel in the

Court of Appeal s,         where thi sease is pending.                Also,   the

representation             has     unreasonably            burdened       Movant

financially.         For    this   reason   it   is   impossible        for   the

undersigned to continue his representation of Petitioner.

        WHEREFORE,    PREMISES      CONSIDERED,       C.     LUKE     GUNNSTAKS,

respectfully requests that this honorable Court enter this

order granting C.           LUKE GUNNSTAKS r s   Motion to Withdraw as

Counsel for Petitioner and granting him all such other and

further relief,      both at law and in equity, whether general

or special, to which he may be justly entitled.

                            Respectfully submitted,



                                       GUNNSTAKS LAW OFFICE




                                       C. LUKE GUNNSTAKS
                                       15150 Preston Road, #300
                                       Dallas, Texas 75248
                                       Tel: (972) 392-2300
                                       Fax: (972) 763-2469
                                       State Bar Number 08624370




(WITHDRAWAL)
                                                                               2
                          CERTIFICATE OF SERVICE
                   IN ACCORDANCE WITH RULES 21 AND 21a, TRCP

        In accordance with Rules 21 and 21a,               I hereby certify

that a true and correct copy of the foregoing documents has

been:

        (a)      (\X)      mailed;   +/Dz..,
        (b)                hand delivered;

        (c)     M          transmitted via Fax;~/~

        (d)     eX)        mailed by certified mail, return receipt

                    requested;

to    all      Attorneys    of   record    or   parties   pro   se   on   this

                                                     , 2004.


                                                 ~b/IA'lSJ
                                                C.UKEGUNNSTAKS       i
                                                Attorney For CHRISTY
                                                CALVERT COLLINS, f/k/a
                                                MOROCH




(WITHDRAWAL)
                                                                             3
·,


                                 CAUSE NO.99-19687-301

     IN THE MATTER OF                          §          IN THE DISTRICT COURT
     THE MARRIAGE OF                           §
                                               §
     CHRISTY CALVERT                           §
     COLLINS MOROCH                            §
     AND                                       §          301ST JUDICIAL DISTRICT
     THOMAS FRANCIS MOROCH                     §
                                               §
     AND IN THE INTEREST OF                    §
     NICHOLAS THOMAS MOROCH AND                §
     ALEXANDERIA CHRISTY MOROCH,               §
     CHILDREN                                  §          DALLAS COUNTY, TEXAS

                              CERTIFICATE OF LAST KNOWN ADDRESS

             This   is   to    certify that         the   last   known address   for

     Petitioner CHRISTY CALVERT COLLINS, f/k/a MOROCH is:



                    4401 Grassmere
                    Dallas, Texas 75205

                    and/or

                    P.O. Box 22173
                    Telluride, co 81435


            DATED this        lsi!:   day of   (1cemk{,      2004.




                                                   GUNNSTAKS LAW OFFICE

                                                    (9G!JrvV)pir,j; D I fvV
                                               C. LUKE GUNNSTAKS
                                               15150 Preston Road, #300
                                               Dallas, Texas 75248
                                               Tel: (972) 392-2300
                                               Fax: (972) 763-2469
                                               State Bar Number 08624370




     (WITHDRAWAL)
                                                                                  4
                       GUNNSTAKS
                          LAW OFFICE
                           C. LUKE GUNNSTAKS
                           Counselor & Attorney At Law

                       December 15, 2004

Mrs. Christy Calvert Collins
4401 Grassmere
Dallas, TX 75205

          RE:   Moroch Matter
                Cause No. 99-19687-301

Dear Ms. Collins:

     Our records show that you have failed to maintain an
adequate positive balance in your retainer account with
this office for your pending case as you had agreed.
Consequently, I am unable to continue to advance the fees
and costs of your case or represent you in this matter.

     Attached is my MOTION TO WITHDRAW which I will file
with the Court.    I would recommend that you seek another
attorney to represent you in this matter.   If you have any
objections to my withdrawal as attorney of record, you must
make such obj ections to the Court in writing within ten
(10) days of the filing of this motion.

     Thank you for your consideration in this matter.




                                             aw\-ncla·Vv ! UV\J
                                           C. Luke Gunnstaks
                                           15150 Preston Road, #300
                                           Dallas, Texas 75248
                                           Tel: (972)392-2300
                                           Fax: (972) 763-2469
                                           State Bar No. 08624370

CLG/mn




 BOARD CERTIFlliD. FAMILY LAW: TEXAS BOARD OF LEGAL SPECIALIZATION
        DIRECIOR: TEXAS ACADEMY OF FAMILY LAW SPECIALISTS
            FELLOW: COLLEGE OF THE STATE BAR OF TEXAS
             TEXAS MONTHLY "SUPER LAWYER" 2003 & 2004
              15150 Preston Road #300 • Dallas, Texas 75248
                   ,. 972/392-2300 • Fax 972/763-2469
 ENDER: COMPLETE THIS SECTION
 ) Complete items 1, 2, and 3. Also complete
   item 4 if Restricted Delivery Is desired
• Print your name and address on the reverse
   so that we can return the card to you .
• Attach this card to the back of the maiJpiece,
   or on the front if space permits.
                                                       D. Is delivery address different from Item 11
1. Article Addressed to:
                                                          If YES, enter delivery address below:


  iHs, &U.:w~ CJU{X/ ~t)(i(llj
    ){ i{O I fJ'Cl:nfY)J!/!-L
   iwJLO.lJ) TK             "76:J{)'J                  \...Sylce Type
                                                        ~ertlfjed Mall         o Express Mall
                                                          D Registered         o Return Receipt for Merchandh
                                                          D Insured Malt       DC.D.D.



           7004 1160 0002 8549 8083
PS Form 3811, February 2004              Domestic Return Receipt                                       102595-02-M-1!
TabB
                                CAUSE NO.99-19687-301

IN THE MATTER OF                                §            IN THE DISTRICT COURT
THE MARRIAGE OF                                 §
                                                §
CHRISTY CALVERT                                 §
COLLINS MOROCH                                  §
AND                                             §            301ST JUDICIAL DISTRICT
THOMAS FRANCIS MOROCH                           §
                                                §
AND IN THE INTEREST OF                          §
NICHOLAS THOMAS MOROCH AND                      §
ALEXANDERIA CHRISTY MOROCH,                     §
CHILDREN                                        §          DALLAS COUNTY, TEXAS

                                               ORDER

       ON      THIS       DAY   came      to    be     heard     C.   LUKE    GUNNSTAKS I s
Motion         to    Withdraw        as     Counsel        for    Petitioner         CHRISTY
CALVERT        COLLINS,         f/k/a       MOROCH      in     the    above-styled         and
numbered cause.·            After reviewing the pleadings and evidence
on     file,        the    Court       is      of    the     opinion       that     C.    LUKE
GUNNSTAKS I s Motion to Withdraw is with merit and should be
granted.
       IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that C.
LUKE      GUNNSTAKS I s          Motion        to      Withdraw       as     Counsel       for
Petitioner          CHRISTY      CALVERT        COLLINS,         f/k/a     MOROCH    be    ana
hereby is granted.


       SIGNED this              (t

                                                           JUDGE PRESIDING




(WITHDRAWAL)
TabC
                                   CAUSE NO.99-19687-301

IN THE MATTER OF                                  §            IN THE DISTRICT COURT
THE MARRIAGE OF                                   §
                                                  §
CHRISTY CALVERT                                   §
COLLINS MOROCH                                    §
AND                                               §            301ST JUDICIAL DISTRICT
THOMAS FRANCIS MOROCH                             §
                                                  §
AND IN THE INTEREST OF                            §
NICHOLAS THOMAS MOROCH AND                        §
ALEXANDRA CHRISTY MOROCH,                         §
CHILDREN                                          §            DALLAS COUNTY, TEXAS

                                       FINAL DECREE OF DIVORCE

        On November 1,                 2002,    following trial on the merits on

December 29, 2001, March 28, May 23, June 7 and August 29,

2002, the Court ruled as follows and rendered the following

findings and orders in this cause.

I .     APPEARANCES:

         Petitioner,             CHRISTY         CALVERT        COLLINS         MOROCH,     also

referred to herein as                     "mother",          and/or as       "wife",      Social

Security Number 455-72-6281,                          appeared through her attorney

of     record,        C.        LUKE    GUNNSTAKS,           and   announced        ready    for

trial.

        Respondent,              THOMAS        FRANCIS       MOROCH,     also    referred     to

herein       as    "father",            and/or    as        "husband",    Social     Security

Number        064-34-7010,               appeared           through    his       attorney     of

record, CHRIS WElL, and announced ready for trial.

        Attorney           Ad    Litem     for        the    children,       JOHN   SCHORSCH,



                                                                                               1
 [FINAL DECREE Of DIVORCE]
appeared in person and announced ready for trial.

II.     RECORD:

        The record of testimony was duly reported by the Court

reporter for the 30lst Judicial District Court.

III. JURISDICTION AND DOMICILE:

        The Court finds that the pleadings of the parties are

in due        form and contain all the                 allegations,          information

and     prerequisites            required        by   law.       The     Court,     after

receiving         evidence,        finds     that     it   has       jurisdiction    over

this cause of action and Dver the parties and that at least

sixty      (60)     days    have        lapsed since the         date    the suit     was

filed.        The Court finds each party had been a domiciliary

of this state for at least a six (6) month period preceding

the filing of this action and a resident of this County for

at least a ninety                (90)    day period preceding the filing of

this     action.            All     persons       entitled       to     citation     were

properly cited.

IV.     JURY:

       A jury was waived,                 and all questions of fact and of

law were submitted to the Court.

V.     RULINGS OF THE COURT:

       On November          1,     2002,     the Court       rendered its         amended

orders regarding possession and custody of the children, as

well     as    its      amended         orders   regarding       a    just   and    right


                                                                                        2
(FINAL DECREE OF DIVORCE]
division of the community estate,                   assets,     and liabilities

as attached hereto as EXHIBIT "A",                   incorporated herein by

reference.

VI .   DIVORCE:

       IT IS ORDERED AND DECREED that CHRISTY CALVERT COLLINS

MOROCH,       Petitioner        and THOMAS FRANCIS MOROCH,             Respondent,

are divorced and the marriage between them is dissolved as

of date of rendition on the record August 29, 2002.

VII. CHILDREN:

       The Court finds that there are two children that have

been born to or adopted by the parties during the marriage.

       The      Court       finds    that   the   following     orders    for    the

safety       and      welfare       of   the   children   are     in     the    best

interests of the following children;

       NAME: NICHOLAS THOMAS MOROCH
       SEX: Male
       BIRTHPLACE:  Dallas, Texas
       BIRTH DATE:  December 23, 1984
       SOCIAL SECURITY NO.: 455-72-0422

       NAME: ALEXANDRA CHRISTY MOROCH
       SEX:  Female
       BIRTHPLACE:  Dallas, Texas
       BIRTH DATE:  December 29, 1987
       SOCIAL SECURITY NO.: 627-01-2299

       The Court finds no other children of the marriage are

expected.

VIII. CONSERVATORSHIP AND ACCESS:

       The Court,           having considered the circumstances of the


                                                                                   3
[fINAL DECREE Of DIVORCE]
parents and of the children, finds the following orders are

in    the     best       interest      of    the    children:      NICHOLAS      THOMAS

MOROCH and ALEXANDRA CHRISTY MOROCH.

     A. Joint Managing Conservators:

        IT IS ORDERED that CHRISTY CALVERT COLLINS MOROCH and

THOMAS FRANCIS MOROCH are                   appointed parent Joint Managing

Conservators            of    the    following      children:      NICHOLAS      THOMAS

MOROCH and ALEXANDRA CHRISTY MOROCH.

     B. Rights and Duties at All Times:

        IT    IS    ORDERED         that,   at     all   times,    CHRISTY      CALVERT

COLLINS MOROCH and THOMAS FRANCIS MOROCH,                          as parent Joint

Managing          Conservators,         shall       each    have     the    following

rights,      duties,         privileges,      and obligations         in    regard   to

the children of the parties:

        1.        the    right      to receive information from the other

parent concerning the health, education, and welfare of the

children;

        2.        the duty to inform the other parent in a timely

manner       of    significant         information       concerning       the   health,

education,         and welfare of the children,                   including any and

all    medical          appointments        for    the   children    identified      by

care-provider                location/address,           date,      and     time     of

appointment;

       3.         the right to confer with the other parent to the


                                                                                      4
[FINAL DECREE OF DIVORCE)
extent        possible        before       making       a    decision         concerning        the

health, education, and welfare of the children;

        4.      the          right        of     access           to     medical,        dental,

psychological, and educational records of the children;

        5.      the right to consult with a physician,                                  dentist,

or psychologist of the children;

        6.      the         right     to       consult           with     school       officials

concerning the               children's welfare and educational                          status,

including school activities;

        7.      the right to attend school activities;

        8.      the         right    to    be     designated             on   the     children's

records as a person to be notified in case of an emergency;

        9.      the         right    to    consent          to    medical,          dental,     and

surgical           treatment         during        an       emergency          invol ving        an

immediate danger to the health and safety of the children;

and

        10.     the right to manage the estate of the children to

the extent the estate has been created by the parent or the

parent's family.

       11.         the       right    to       represent         the     children      in. legal

action       and    to      make     other      decisions          of     substantial         legal

significance             concerning        the     children             and   to    consent      to

psychiatric and/or psychological treatment of the children;

       12.         the      right    to the services and earnings of                            the


                                                                                                  5
[FINAL DECREE OF DIVORCE]
children; and

        13.      the        right         to     consent       to       marriage           and     to

enlistment in the armed forces of the United States.

  C. Rights and Duties During Periods of Possession:

        IT IS ORDERED that, during their respective periods of

possession,            CHRISTY        CALVERT          COLLINS         MOROCH        and       THOMAS

FRANCIS       MOROCH,          as    parent        Joint       Managing         Conservators,

shall each have the following rights and duties in regard

to the children of the parties:

        1.      the         duty     of        care,     control,         protection,             and

reasonable discipline of the children;

        2.      the         duty     to        support     the      children,            including

providing        the        children with          clothing,           food,    shelter,          and

medical         and         dental        care     not        involving         an         invasive

procedure;

        3.      the duty to inform the other parent i f the parent

resides with for at least thirty days, marries,                                      or intends

to marry a person who the parent knows is a registered as a

sex    offender         under        chapter       62    of      the    Code        of     Criminal

Procedure         (as       added     by       chapter     668,        Acts     of       the     75th

Legislature, Regular Session,                       1997) or is currently charged

with an offense for which on conviction the person would be

required       to      register       under       that    chapter.             IT    IS ORDERED

that this        information shall be tendered in the form of a


                                                                                                    6
(FINAL D£CREE OF DIVORCE]
notice made as soon as practicable, but not later than the

fortieth         day after          the   date       the parent         begins     to    reside

with       the   person or           on   the    tenth day after             the       date    the

marriage occurs,               as    appropriate.            IT    IS   ORDERED        that    the

notice must            include a description of the                       offense       that   is

the basis of the person's requirement to register as a sex

offender         or     of     the    offense         with    which       the      person      is

charged.          WARNING:          A PERSON COMMITS AN OFFENSE                    PUNISHABLE

AS    A    CLASS       C MISDEMEANOR        IF       THE   PERSON       FAILS     TO    PROVIDE

THIS NOTICE.

          4.     the right to consent for the child to medical and

dental care not involving an invasive procedure;

          5.     the right to consent for the children to medical,

dental,          and        surgical       treatment          during        an     emergency

involving immediate danger to the health and safety of the

children;

          6.     the        right    to    direct      the        moral    and     religious

training of the children;

 D.       Other Rights and Duties of Respondent:

          IT IS ORDERED that THOMAS FRANCIS MOROCH,                              as a parent

Joint Managing Conservator, shall have the following rights

and duties:

          1.     the        exclusive      right      to     determine       the        primary

residence          and        domicile          of     the        children        within        a


                                                                                                7
(FINAL DECREE OF DIVORCE]
geographical           area     comprised of                Dallas       County,      Texas,   and

contiguous counties thereto;

        2.     the right to receive and give receipt for periodic

payments        for     the     support of the               children and to             hold or

disburse these funds for the benefit of the children;

        3.      the         right        to     make        decisions        concerning        the

children's education;

        4.       the        right        to   consent        to    medical,          dental,   and

surgical treatment involving invasive procedures;

        5. except when a guardian of the children's estate or

a guardian or attorney ad litem has been appointed for the

children,        the right to act as an agent of the children in

relation to the children's estate if the children's action

is    required by a             state,         the United States,                or a     foreign

government         subj ect         to    the    agreement          of    the    other     parent

conservator; and

        6.      the duty to manage the estate of the children to

the     extent        the      estate         has    been         created       by    Father    or

Father's family.

     E. Other Rights and Duty of Petitioner:

       IT IS ORDERED that CHRISTY CALVERT COLLINS MOROCH,                                       as

a     parent       Joint        Managing            Conservator,           shall       have    the

following rights and duty:

       1.       the         right    to       hold     or    disburse        funds      for    the


                                                                                                 8
[FINAL DECREE OF DIVORCE]
benefit of the children;

        2. except when a guardian of the children's estate or

a guardian or attorney ad litem has been appointed for the

children,          the right to act as an agent of the children in

relation to the children's estate if the children's action

is    required by a             state,      the United states,                or a        foreign

government           subj ect    to    the    agreement          of    the     other parent

conservator; and

        3.       the duty to manage the estate of the children to

the     extent        the     estate        has     been     created         by    Mother       or

Mother's family.

F. Access:

        IT    IS     FURTHER     ORDERED          AND    DECREED       that Mother shall

have     such       possession         of    and        access    to    the       children      as

provided        by     the    Standard        Possession          Order       of    the    Texas

Family         Code         §§153.313         through            153.317,          et      alia,

incorporated           herein     by     reference,          with      elections          as   set

forth herein.               IT IS ORDERED that this                 Standard Possession

Order is effective immediately and applies to all periods

of possession occurring on and after the signing of this

Final Decree of Divorce.

        (a)     Definitions

            1.   In this Standard Possession Order, "school"
       means the primary or secondary school in which the
       child is enrolled or, if the child is not enrolled in


                                                                                                 9
(FINAL DECREE OF DIVORCE]
        a primary or secondary school, the public                                 school
        district in which the child primarily resides.

             2.   In this Standard Possession Order, "child"
        includes each child, whether one or more, who is
        subject of this suit while that child is under the age
        of eighteen years and not otherwise emancipated.

        (b) Mutual             Agreement         or     Specified         Terms        for
        Possession

                IT     IS    ORDERED     that    the    conservators         shall    have

       possession of the child at times mutually agreed to in

        advance by the parties, and,                   in the absence of mutual

       agreement,           it is ORDERED that the conservators shall

       have possession of the child under the specified terms

        set out in this Modified Possession Order.

        (c)     Parents Who Reside 100 Miles or Less Apart

                Except as        otherwise explicitly provided in this

       Modified             Possession        Order,    when     CHRISTY        CALVERT

       COLLINS         MOROCH    resides        100    miles    or    less     from   the

       primary          residence        of     the    child,        CHRISTY    CALVERT

       COLLINS MOROCH            shall have the right to possession of

       the child as follows:

              Weekends - On weekends, beginning at the time
              1.
       the child's school is regularly dismissed, on the
       first, third, and fifth Friday of each month and
       ending at the time the child's school resumes after
       the weekend.

           2. Weekend Possession Extended by a Holiday
       Except   as  otherwise explicitly provided in this
       Modified Possession Order, if a weekend period of
       possession by CHRISTY CALVERT COLLINS MOROCH begins on


                                                                                       10
[FINAL DECREE OF DIVORCE]
        a Friday that is a school holiday during the regular
        school term or a federal, state, or local holiday
        during the summer months when school is not in
        session, or if the period ends on or is immediately
        followed by a Monday that is such a holiday, that
        weekend period of possession shall begin at the time
        the child's school is regularly dismissed on the
        Thursday immediately preceding the Friday holiday or
        school holiday or end at the time school resumes after
        that holiday, as applicable.

            3. Wednesdays - On Wednesday of each week during
        the regular school term, beginning at the time the
        child's school is regularly dismissed and ending at
        the time the child's school resumes on Thursday.

            4. Christmas Holidays in Even-Numbered Years - In
        even-numbered years, beginning at the time the child's
        school is regularly dismissed on the day the child is
        dismissed   from  school   for  the  Christmas  school
        vacation and ending at noon on December 26.

            5. Christmas Holidays in Odd-Numbered Years - In
        odd-numbered years, beginning at noon on December 26
        and ending at the time the child's school resumes
        after that Christmas school vacation.

           6. Thanksgiving in Odd-Numbered Years      In odd-
       numbered years, beginning at the time the child's
       school is regularly dismissed on the day the child is
       dismissed from school for the Thanksgiving holiday and
       ending at the time the child's school resumes after
       that Thanksgiving holiday.

           7. Spring Break in Even-Numbered Years - In even-
       numbered years, beginning at the time the child's
       school is regularly dismissed on the day the child is
       dismissed from school for the school's spring vacation
       and ending at the time school resumes after that
       vacation.

          8.Extended Summer   Possession   by   CHRISTY   CALVERT
       COLLINS MOROCH:

            With Written Notice by April 1     If CHRISTY
       CALVERT COLLINS MOROCH gives THOMAS FRANCIS MOROCH
       written notice by April 1 of a year specifying an


                                                               11
[~INAL DECR~E   OF DIVORCE]
        extended period or periods of sununer possession for
        that year, CHRISTY CALVERT COLLINS MOROCH shall have
        possession of the child for thirty days beginning no
        earlier than the day after the child's school is
        dismissed for the sununer vacation and ending no later
        than seven days before school resumes at the end of
        the sununer vacation in that year, to be exercised in
        no more than two separate periods of at least seven
        consecutive days each, as specified in the written
        notice.   These periods of possession shall begin and
        end at 6:00 p.m.   CHRISTY CALVERT COLLINS MOROCH shall
        have the right to designate one 14-day period of
        uninterrupted sununer access.

            Without Written Notice by April 1 - I f CHRISTY
       CALVERT COLLINS MOROCH does not give THOMAS FRANCIS
       MOROCH written notice by April 1 of a year specifying
       an extended period or periods of sununer possession for
       that year, CHRISTY CALVERT COLLINS MOROCH shall have
       possession of the child for thirty consecutive days in
       that year beginning at 6:00 p.m. on July 1 and ending
       at 6:00 p.m. on July 31.       CHRISTY CALVERT COLLINS
       MOROCH shall have the right to designate one 14-day
       period of uninterrupted sununer access by written
       notice to THOMAS FRANCIS MOROCH by May 15 of that
       year, provided such period does not. conflict with
       THOMAS   FRANCIS  MOROCH's   specific   sununer weekend
       possession or extended sununer possession as set forth
       herein.

              Child's Birthday - I f CHRISTY CALVERT COLLINS
              9.
       MOROCH  is not otherwise entitled under this Modified
       Possession Order to present possession of the child on
       the child's birthday, CHRISTY CALVERT COLLINS MOROCH
       shall have possession of the child and the child's
       siblings beginning at 6: 00 p. m. and ending at 8: 00
       p.m.  on that day,     provided that CHRISTY CALVERT
       COLLINS MOROCH picks up the child from THOMAS FRANCIS
       MOROCH's residence or the school of the child,        as
       applicable, and returns the child to that same place.

           10. Mother's Day Weekend - Each year, beginning at
       the time school is recessed on the Friday preceding
       Mother's Day and ending at the time school resumes
       after Mother's Day, provided that if she is not
       otherwise entitled under this Possession Order to
       present possession of the child, she shall pick up the


                                                            12
(FINAL DECREE OF DIVORCE]
        child from THOMAS FRANCIS MOROCH's residence or                   the
        school of the child, as applicable, and return                    the
        child to that same place.

                Notwithstanding the weekend and Wednesday periods

        of     possession     ORDERED     for     CHRISTY   CALVERT   COLLINS

        MOROCH,        i t is explicitly ORDERED that THOMAS FRANCIS

       MOROCH shall         have   a   superior    right    of possession of

        the child as follows:

            1. Christmas Holidays in             Odd-Numbered Years - In
        odd-numbered years, beginning            at 6: 00 p.m. on the day
        the child is dismissed from             school for the Christmas
        school vacation and ending at           noon on December 26.

            2. Christmas Holidays in Even-Numbered Years - In
        even-numbered years, beginning at noon on December 26
        and ending at 6:00 p.m. on the day before school
        resumes after that Christmas school vacation.

            3. Thanksgiving in Even-Numbered Years - In even-
        numbered years, beginning at 6: 00 p.m. -on the day the
        child is dismissed from school for the Thanksgiving
        holiday and ending at 6:00 p.m. on the following
        Sunday.

           4. Spring Break in Odd-Numbered Years - In odd-
       numbered years, beginning at 6:00 p.m. on the day the
       child is dismissed from school for the school's spring
       vacation and ending at 6: 00 p. m. on the day before
       school resumes after that vacation.

            5. Specific Summer Weekend Possession by THOMAS
       FRANCIS MOROCH      If THOMAS FRANCIS MOROCH gives
       CHRISTY CALVERT COLLINS MOROCH written notice by April
       15 of a year,     THOMAS FRANCIS MOROCH shall have
       possession of the child on anyone weekend beginning
       at 6:00 p.m. on Friday and ending at 6:00 p.m. on the
       following Sunday during anyone period of the extended
       summer possession by CHRISTY CALVERT COLLINS MOROCH in
       that year, provided that THOMAS FRANCIS MOROCH picks
       up the child from CHRISTY CALVERT COLLINS MOROCH and
       returns the child to that same place, provided that


                                                                          13
(fINAL DECREE OF DIVORCE)
       the weekend so designated does not interfere with
       Mother's Day weekend or with CHRISTY CALVERT COLLINS
       MOROCH's   previously  designated 14-day  period  of
       uninterrupted summer access.

           6. Extended Summer Possession by THO~S FRANCIS
       MOROCH      If THO~S FRANCIS MOROCH gives CHRISTY
       CALVERT COLLINS MOROCH written notice by April 15 of a
       year or gives CHRISTY CALVERT COLLINS MOROCH fourteen
       days' written notice on or after April 16 of a year,
       THO~S   FRANCIES MOROCH may designate one weekend
       beginning no earlier than the day after the child's
       school is "dismissed for the summer vacation and ending
       no later than seven days before school resumes at the
       end of the summer vacation, during which an otherwise
       scheduled weekend period of possession by CHRISTY
       CALVERT COLLINS MOROCH shall not take place in that
       year, provided that the weekend so designated does not
       interfere with CHRISTY CALVERT COLLINS MOROCH's period
       or periods of extended summer possession or with
       Mother's Day Weekend.

           7. Child's Birthday - If THO~S FRANCIS MOROCH is
       not otherwise entitled under this Modified Possession
       Order to present possession of the child on the
       child's birthday, THO~S FRANCIS MOROCH shall have
       possession of the child and the child's siblings
       beginning at 6:00 p.m. and ending at 8:00 p.m. on that
       day, provided that THO~S FRANCIS MOROCH picks up the
       child from CHRISTY CALVERT COLLINS MOROCH's residence
       and returns the child to that same place.

              Father's Day Weekend - Each year, beginning at
              8.
       6:00 p.m. on the Friday preceding Father's Day and
       ending at 6:00 p.m. on Mother's Day, provided that if
       THO~S FRANCIS MOROCH is not otherwise entitled under
       this Modified Possession Order to present possession
       of the child, he shall pick up the child the child
       from CHRISTY CALVERT COLLINS MOROCH's residence and
       return the child to that same place.

        (d)     Parents Who Reside More Than 100 Miles Apart

                Except       as   otherwise explicitly provided in    this

       Standard             Possession   Order,   when   CHRISTY   CALVERT



                                                                        14
[FINAL DECREE OF DIVORCE)
        COLLINS MOROCH resides more           than   100 miles   from the

        residence of the child, CHRISTY CALVERT COLLINS MOROCH

        shall      have     the   right to possession of   the   child as

        follows:

           1. Weekends -Either regular weekend possession
       beginning on the first, third, and fifth Friday as
       provided under the terms applicable to parents who
       reside 100 miles or less apart or not more than one
       weekend per month of the possessory conservator's
       choice beginning at 6:00 p.m. on the day school
       recesses for the weekend and ending at 6: 00 p. m. on
       the day before school resumes after the weekend,
       provided that .the possessory conservator gives the
       managing conservator 14 days' written or telephonic
       notice preceding a designated weekend, and provided
       that the possessory conservator elects an option for
       this alternative period of possession by written
       notice given to the managing conservator within 90
       days after the parties begin to reside more than 100
       miles apart, as applicable.

           2. Christmas Holidays in Even-Numbe,red Years - In
       even-numbered years, beginning at the time the child's
       school is regularly dismissed on the day the child is
       dismissed   from  school   for  the  Christmas   school
       vacation and ending at noon on December 26.

           3. Christmas Holidays in Odd-Numbered Years - In
       odd-numbered years, beginning at noon on December 26
       and ending at the time the child's school resumes
       after that Christmas school vacation.

           4. Thanksgiving in Odd-Numbered Years      In odd-
       numbered years, beginning at the time the child's
       school is regularly dismissed on the day the child is
       dismissed from school for the Thanksgiving holiday and
       ending at the time the child's school resumes after
       that Thanksgiving holiday.

           5.  Spring Break in All Years        Every year,
       beginning at the time the child's school is regularly
       dismissed on the day the child is dismissed from
       school for the school's spring vacation and ending at


                                                                      15
[FINAL DECREE OF DIVORCE)
        the time school resumes after that vacation.

           6.Extended Summer Possession by CHRISTY CALVERT
       COLLINS MOROCH - with Written Notice by April 1 - I f
       CHRISTY CALVERT COLLINS MOROCH gives THOMAS FRANCIS
       MOROCH written notice by April 1 of a year specifying
       an extended period or periods of summer possession for
       that year, CHRISTY CALVERT COLLINS MOROCH shall have
       possession of the child for forty-two days beginning
       no earlier than the day after the child's school is
       dismissed for the summer vacation and ending no later
       than seven days before school resumes at the end of
       the summer vacation in that year, to be exercised in
       no more than two separate periods of at least seven
       consecutive days each, as specified in the written
       notice.   These periods of possession shall begin and
       end at 6:00 p.m.  CHRISTY CALVERT COLLINS MOROCH shall
       have the right to designate one 14-day period of
       uninterrupted summer access.

            Without Written Notice by April 1 - I f CHRISTY
       CALVERT COLLINS MOROCH does not give THOMAS FRANCIS
       MOROCH written notice by April 1 of a year specifying
       an extended period or periods of summer possession for
       that year, CHRISTY CALVERT COLLINS MOROCH shall have
       possession of the child for forty-two consecutive days
       beginning at 6:00 p.m. on June 15 and ending at 6:00
       p.m. on July 27 of that year.  CHRISTY CALVERT COLLINS
       MOROCH shall have the right to designate one 14-day
       period of uninterrupted summer access by written
       notice to THOMAS FRANCIS MOROCH by May 15 of that
       year, provided such period does not conflict with
       THOMAS   FRANCIS  MOROCH's  specific   summer  weekend
       possession or extended summer possession as set forth
       herein.

               Child's Birthday - I f CHRISTY CALVERT COLLINS
              7.
       MOROCH  is not otherwise entitled under this Modified
       Possession Order to present possession of the child on
       the child's birthday, CHRISTY CALVERT COLLINS MOROCH
       shall have possession of the child and the child's
       siblings beginning at 6: 00 p. m. and ending at 8: 00
       p.m.   on that day,    provided that CHRISTY CALVERT
       COLLINS MOROCH picks up the child from THOMAS FRANCIS
       MOROCH's residence and returns the child to that same
       place.



                                                           16
[FINAL DECREE OF DIVORCE]
           8. Mother's Day Weekend - Each year, beginning at
       6:00 p.m. on the Friday preceding Mother's Day and
       ending at 6:00 p.m. on Mother's Day, provided that if
       CHRISTY CALVERT COLLINS MOROCH       is not  otherwise
       entitled under this Modified Possession Order to
       present possession of the child, she shall pick up the
       child from THOMAS FRANCIS MOROCH's residence and
       return the child to that same place.

                     Notwithstanding the weekend periods of possession

       ORDERED             for    CHRISTY   CALVERT    COLLINS   MOROCH,     it   is

       explicitly               ORDERED   that   THOMAS   FRANCIS   MOROCH   shall

       have          a   superior right      of possession. of      the   child as

       follows:

           1. Christmas Holidays in                    Odd-Numbered Years - In
       odd-numbered years, beginning                   at 6:00 p.m. on the day
       the child is dismissed from                    school for the Christmas
       school vacation and ending at                  noon on December 26.

           2. Christmas Holidays in Even-Numbered Years - In
       even-numbered years, beginning at noon -on December 26
       and ending at 6:00 p.m. on the day before school
       resumes after that Christmas school vacation.

           3. Thanksgiving in Even-Numbered Years - In even-
       numbered years, beginning at 6:00 p.m. on the day the
       child is dismissed from school for the Thanksgiving
       holiday and ending at 6:00 p.m. on the following
       Sunday.

           4. Specific Summer Weekend Possession by THOMAS
       FRANCIS MOROCH      If THOMAS FRANCIS MOROCH gives
       CHRISTY CALVERT COLLINS MOROCH written notice by April
       15 of a     year, THOMAS FRANCIS MOROCH shall have
       possession of the child on anyone weekend beginning
       at 6:00 p.m. on Friday and ending at 6:00 p.m. on the
       following Sunday during anyone period of possession
       by CHRISTY CALVERT COLLINS MOROCH during CHRISTY.
       CALVERT COLLINS MOROCH's extended summer possession in
       that year, provided that if a period of possession by
       CHRISTY CALVERT COLLINS MOROCH in that year exceeds
       thirty days, THOMAS FRANCIS MOROCH may have possession


                                                                                  17
(FINAL D£CREE   or   DIVORCE)
        of the child under the terms of this provision on any
        two nonconsecutive weekends during that period and
        provided that THOMAS FRANCIS MOROCH picks up the child
        from CHRISTY CALVERT COLLINS MOROCH and returns the
        child to that same place, and provided that any
        weekend so designated does not interfere with Mother's
        Day Weekend or with CHRISTY CALVERT COLLINS MOROCH's
        previously designated l4-day period of uninterrupted
        summer access.

           5. Extended Summer Possession by THOMAS FRANCIS
       MOROCH     If THOMAS FRANCIS MOROCH gives CHRISTY
       CALVERT COLLINS MOROCH written notice by April 15 of a
       year, THOMAS FRANCIS MOROCH may designate twenty-one
       days beginning no earlier than the day after the
       child's school is dismissed for the summer vacation
       and ending no later than. seven days before school
       resumes at the end of the summer vacation in that
       year, to be exercised in no more than two separate
       periods of at least seven consecutive days each,
       during which CHRISTY CALVERT COLLINS MOROCH shall not
       have possession of the child, provided that the period
       or periods so designated do not interfere with CHRISTY
       CALVERT COLLINS MOROCH's period or periods of extended
       summer possession or with Mother's Day Weekend.

           6. Child's Birthday - If THOMAS FRANCIS MOROCH is
       not otherwise entitled under this Modified Possession
       Order to present possession of the child on the
       child's birthday, THOMAS FRANCIS MOROCH shall have
       possession of the child and the child's siblings
       beginning at 6:00 p.m. and ending at 8:00 p.m. on that
       day, provided that THOMAS FRANCIS MOROCH picks up the
       child from CHRISTY CALVERT COLLINS MOROCH's residence
       and returns the child to that same place.

              Father's Day Weekend - Each year, beginning at
              7.
       6:00 p.m. on the Friday preceding Father's Day and
       ending at 6:00 p.m. on Father's Day, provided that if
       THOMAS FRANCIS MOROCH is not otherwise entitled under
       this Modified Possession Order to present possession
       of the child, he shall pick up the child from CHRISTY
       CALVERT COLLINS MOROCH's residence and return the
       child to that same place.

                THOMAS      FRANCIS   MOROCH   shall   have   the   right   of



                                                                            18
[FINAL DECREE OF DIVORCE]
        possession            of    the     child    at   all     other    times      not

        specifically            designated      in    this    Standard     Possession

        Order for CHRISTY CALVERT COLLINS MOROCH.

        (e)     General Terms and Conditions

                 Except        as   otherwise       explicitly provided        in    this

        Modified Possession Order, the terms and conditions of

        possession of the child that apply regardless of the

        distance            between   the    residence       of   a   parent   and    the

        child are as follows:

            1.   Surrender of Child by THOMAS FRANCIS MOROCH
       - THOMAS FRANCIS MOROCH is ORDERED to surrender the
       child to   CHRISTY CALVERT COLLINS MOROCH at       the
       beginning of each period of CHRISTY CALVERT COLLINS
       MOROCH's possession at the residence of THOMAS FRANCIS
       MOROCH, except as otherwise provided herein.

            If a period of possession by CHRISTY CALVERT
       COLLINS MOROCH begins at the time the child's school
       is regularly dismissed,    THOMAS FRANCIS MOROCH is
       ORDERED to surrender the child to CHRISTY CALVERT
       COLLINS MOROCH at the beginning of each such period of
       possession at the school in which the child is
       enrolled.   If the child is not in school, CHRISTY
       CALVERT COLLINS MOROCH shall pick up the child at the
       residence of THOMAS FRANCIS MOROCH at 4:00 p.m., and
       THOMAS FRANCIS MOROCH is ORDERED to surrender the
       child to CHRISTY CALVERT COLLINS MOROCH at         the
       residence of THOMAS FRANCIS MOROCH at 4:00 p.m., under
       these circumstances.

            2.   Return of Child by CHRISTY CALVERT COLLINS
       MOROCH - CHRISTY CALVERT COLLINS MOROCH is ORDERED to
       return the child at the residence of CHRISTY CALVERT
       COLLINS  MOROCH   at  the   end   of  each  period of
       possession, except as otherwise provided herein.

            If a period of possession by CHRISTY CALVERT
       COLLINS MOROCH ends at the time the child's school


                                                                                      19
(FINAL DECREE OF DIVORCE]
         resumes, CHRISTY CALVERT COLLINS MOROCH is ORDERED to
         surrender the child to THOMAS FRANCIS MOROCH at the
         end of each period of possession at the school in
         which the child is enrolled or, if the child is not in
         school, at the residence of CHRISTY CALVERT COLLINS
         MOROCH at 8:30 a.m.

                     3.         Surrender     of      Child
                                                CHRISTY       by
                                                         CALVERT
         COLLINS           MOROCH             COLLINS MOROCH is
                                            CHRISTY    CALVERT
         ORDERED   to surrender the child to THOMAS FRANCIS
         MOROCH,   if the child is in CHRISTY CALVERT COLLINS
         MOROCH's   possession or subject to CHRISTY CALVERT
         COLLINS  MOROCH's control,  at the beginning of each
          period of THOMAS FRANCIS MOROCH's exclusive periods of
         possession, at the place designated in this Standard
         Possession Order.

              4.   Return of Child by THOMAS FRANCIS MOROCH -
         THOMAS FRANCIS MOROCH is ORDERED to return the child
         to CHRISTY CALVERT COLLINS MOROCH, if CHRISTY CALVERT
         COLLINS MOROCH is entitled to possession of the child,
         at the end of each of THOMAS FRANCIS MOROCH's
         exclusive   periods  of   possession,  at    the                     place
         designated in this Standard Possession Order.

                   Personal
                    5.       Effects     Each Gonservator   is
         ORDERED to return with the child the personal effects
         that the child brought at the beginning of the period
         of possession.

              6.   Designation  of   Competent  Adult      Each
         conservator may designate any competent adult to pick
         up and return the child, as applicable, subject to the
         additional terms and conditions set forth below. IT IS
         ORDERED that a conservator or a designated competent
         adult be present when the child is picked up or
         returned.

                   Inabili ty to Exercise Possession
                    7.                                     Each
         conservator is ORDERED to give notice to the person in
         possession of the child on each occasion that the
         conservator   will   be   unable  to    exercise  that
         conservator's right of possession for any specified
         period.

              8.  Written Notice  Written                          notice shall   be
         deemed to have been timely made                           if received    or


                                                                                  20
[FINAL   D~CRE£   OF DIVORCE]
        postmarked before or at the time that notice is due.
        Failure to accept certified mail shall not be a
        defense to lack of notice.

                  Notice to School and other Conservator - If
                 9.
        a conservator's time of possession of the child ends
        at the time school resumes and for any reason the
        child is not or will not be returned to school, that
        conservator shall immediately notify the school and
        the other conservator that the child will not be or
        has not been returned to school.

VIII.           CHILD SUPPORT:

        A.    IT IS ORDERED that CHRISTY CALVERT COLLINS MOROCH

shall pay to THOMAS FRANCIS MOROCH a one-time child support

payment payable in a lump sum of $76,500.00                           within one (1)

day of the closing of the sale of the                            residence at        5106

DeLoache, Dallas, Texas, 75220 if Wife sells the residence,

or   by      December        31,       2002,   whichever      occurs     first,      such

amount       being      equal         to   $1,500.00    per   month      for   two      (2)

children times seven (7) months and $1,200.00 per month for

one (1) child times fifty-five (55) months,                        for the support

of   the     parties'        two       children   that    were    born    or   adopted

during the marriage.                   In the alternative, such amount shall

be offset         against        an    equivalent      amount payable by THOMAS

FRANCIS       MOROCH        to     CHRISTY     CALVERT     COLLINS     MOROCH      on     a

dollar-for-dollar basis per the terms of this order.

        B. Payment:

        IT IS ORDERED that the payment shall be made through

Dallas County Child Support Division,                         First Floor,        Dallas


                                                                                        21
[rINAL DECREE Of DIVORCE]
County       Courthouse,           600     Commerce        Street,     Dallas,    Texas

75202, and shall then be remitted by that agency to THOMAS

FRANCIS      MOROCH         for   the     support     of    the   children.       IT    IS

FURTHER ORDERED             that CHRISTY CALVERT COLLINS MOROCH shall

pay any fees charged by that agency.'

IX.     HEALTH INSURANCE:

  A. IT      IS    ORDERED AND           DECREED     that THOMAS FRANCIS MOROCH

shall maintain health insurance for each child until each

child      reaches          the    age     of   18     years      or   is     otherwise

emancipated, whichever occurs first.

  B. The decision to                   incur health care expenses             shall     be

made by the party in possession of the child at the time

such health care expenses are incurred.                           Reasonableness of

the     charges       shall       be    presumed     upon     presentation       of    the

bill.       Disallowance of the bill by a health insurer shall

not excuse the obligation of each parent to make payment.

  C. Each party shall pay the co-payor prescription costs

when either of the two children named herein are in his or

her care,         subj ect to terms of reimbursement as set                       forth

herein.

  D.    The policy-holding parent                    is ORDERED and DECREED            to

furnish a copy of any health insurance card to the other

parent within two weeks of receipt of same.

  E. The       policy-holding parent                is ORDERED and DECREED             to


                                                                                       22
[FINAL DECREE OF DIVORCE]
furnish to the other parent a true and correct copy of such

maj or medical              and     health       insurance policy or                      certificate

and schedule of benefits within fifteen                                  (15) days following

the    signing         of     these         Final       Orders.          The     policy-holding

parent is also ORDERED and DECREED to furnish to the other

party      a     copy        of     any      renewals          or     discharges             of     that

insurance            policy         within        fifteen         (15)      days          after      the

issuance of the renewal or change.

  F. The        policy-holding               party       is    ORDERED         and        DECREED     to

furnish        to     the     other         party       within      ten        (10)       days     after

written        request         from       the         non-pol icy-holding                 parent     any

claim      forms       necessary            to        effect    and      make         a    claim     for

medical        and      hospitalization                 benefits,         and         the        policy-

holding party is ORDERED to complete the claim form within

ten    (10)     days after receipt and is ORDERED to forward the

claim      within           three     (3)     days       to    each       insurance           company

providing coverage for the child.

  G. The policy-holding party is                              designated a constructive

trustee         to     receive            any         insurance          payments           and      any

accompanying           explanation               of    benefits       and       is        ORDERED     to

endorse and forward to the other parent wi thin three                                                (3)

days      any        specific         insurance            checks         or      payments           and

explanation           of      benefits           received        by      the     policy-holding

party designated or intended as reimbursement for eligible


                                                                                                      23
(FINAL DECREE OF DIVORCE]
medical expenses incurred by the non-pol icy-holding parent.

  H.    Each parent is ORDERED to furnish to the other parent

copies        of    all      statements       of    bills          for    such       health          care

expenses,           and     that    other     parent          is    ORDERED          to       pay     the

statement           and     bills        within    ten       days        of     receipt         of     an

explanation of benefits form from the appropriate insurance

carrier either by paying the health care provider directly

or by reimbursing the parent who has paid for any advance

payment over and above the fifty percent                                 (50%) share of the

uninsured health care expenses.

  I.    IT    IS     FURTHER        ORDERED       AND    DECREED          that       the       parties

shall        each    pay      fifty       percent       (50%)       of        all    health         care

expenses           (medical,       dental,       orthodontic,            and hospital)               not

paid     by    insurance           that    are     incurred         by    or        on    behalf      of

ei ther       child,         including,           without          limitation,                medical,

prescription,               psychiatric,           psychological,                   dental,          and

orthodontic charges, within 15 days of notice received that

the     expenses            are    not     covered       by        insurance,            except       as

specified below.

  J. This          provision        shall     not       be    interpreted                to    include

expenses for:

        1.     travel to and from health care provider;
        2.     nonprescription medication;
        3.     care by unlicensed health professionals; or
        4.     elective non-emergency surgical expense not
               approved in advance by each party.


                                                                                                      24
{FINAL DECREE OF DIVORCE]
     K. IT IS FURTHER ORDERED that all statements for medical

expenses not           paid by insurance shall be                    submitted to          the

other        parent     within       thirty       (30)     days     of   denial      of    the

insurance         claim.         THE    RIGHT       TO    CLAIM     REIMBURSEMENT          FOR

MEDICAL        EXPENSES        SHALL        BE   WAIVED     IF     THE     CLAIM    IS     NOT

SUBMITTED        TO    THE     OTHER    PARENT WITHIN             THIRTY    (30)    DAYS    OF

DENIAL OF THE               INSURANCE   CLAIM for          expenses incurred after

date of entry of these orders only.                          IT IS FURTHER ORDERED

that nothing contained in this order shall waive any claim

on outstanding health care expense reimbursements currently

claimed to be due pursuant to prior orders of this Court.

X.      DIVISION OF MARITAL ESTATE:

        The Court finds that the following is a just and right

division of the parties' marital estate, having due regard

for the rights of each party:

        A.      The         Court     accepts       the      stipulations           of     the

parties.

        B.      The Court finds              that the parties entered into a

valid        Post-nuptial        agreement        signed October           30,     1987    and

ORDERS       the property divided and taxes paid per the Post-

nuptial agreement,              incorporated herein by reference except

as more specifically detailed below.

        C.      The     court       finds    that    the    Post-nuptial agreement

signed on October 30,                 1987 and stipulated into Evidence as


                                                                                           25
[FINAL DECREE OF DIVORCE]
Exhibit 1, limits the existing pre-divorce community estate

solely        to    the     house   and     lot    at     5106      De     Loache,        Dallas,

Texas.         The Court         finds     that    the parties             stipulated that

the fair market value of the home is $1,545,000.                                        The Court

finds        that    the    Wife's      separate        estate      has       a    claim under

Section        3.403        of    the     Texas     Family          Code          for    economic

contribution for                her separate estate's payment                       of capital

improvements to the community estate on De Loache and her

separate        estate's         payment    of the        $10,000        down       payment      on

the    De     Loache        property      and     the    payment         of       the    $300,000

mortgage on the De Loache property.

        D.         The Court FINDS that the evidence establishes by

clear and convincing evidence that Wife's                                  separate estate

has been the sole source of funding for the improvements on

the undisputed sole asset of the community estate located

at    5106 De Loache,             Dallas,       Texas,     and that the burden of

proof shifted to the Husband to prove that any funds other

than    those        of ·Wife's      Separate       Estate       were         used       for   such

improvements.               The Court FINDS             that   it     is      uncontroverted

that    Wife's        Separate       Estate       also     paid       the         $10,000      down

payment        and        the    $300,000       mortgage         on        the      De     Loache

property.

       E.          The Court further finds that the Wife's Separate

Estate's funding of the capital improvements in the amount


                                                                                                26
[fINAL DECREE OF DIVORCE)
of    $1,249,043.45                    and    the     $310,000        payment,        as      described

above,        created             a    claim        for    economic      contribution           by    the

Wife's Separate Estate against the Community Estate.                                                  The

Court GRANTS the Wife's claim for economic contribution and

ORDERS        an award of $1,559,043.45 to the Wife.                                        The Court

satisfies                the          economic        contribution         claim           by    Wife's

Separate Property by awarding her the house and lot at 5106

De Loache,               Dallas,        Texas in its entirety and finds that in

accordance with the                          Post-nuptial agreement of October 30,

1987,         that           there      is     no     more      community        property        to    be

awarded.

         F.            Furthermore            the     Court       ORDERS       that     the     Husband

 vacate the residence at 5106 De Loache, Dallas, Texas by
  -::1";tN I:)
.No tI ember 30, 200~. The Wife is to tender $76,000.00 as

lump sum child support to the Husband within one day of the

closing of the residenceA' if aLe sells Ehe residence,                                            er by

Dcc@mber 31,                 2002,      whichever occurs first,                  or as ethelO'-r;      SA


agrg~d        or projTided herejn.


         G.            The        Court        grants           the     Wife's        request         for

attorney's               fees         and     costs        of   $99,408.01        and      grants      an

additional award of $5,000 payable by husband to wife,                                                if

the      case          is      appealed         to        the   Court     of    Appeals         and   an

additional              $7,500 payable by husband to wife if the case

goes to the Supreme Court.


                                                                                                      27
[~INAL   D8CREE   O~   DIVORCE]
        H.      In addition, the Court ORDERS as follows:

                1.          Property to Wife:

        IT     IS     ORDERED       AND     DECREED       that       the     wife,     CHRISTY

CALVERT        COLLINS        MOROCH,      is     awarded      the     following       as    her

sole and separate property,                     and the husband is divested of

all     right,        title,       interest,        and     claim      in     and     to    that

property:

        W-I.     Property listed on the attached EXHIBIT "B", per

terms of the Post-nuptial Agreement,                           signed on October 30,

1987,        incorporated         herein     by    reference,          confirmed as         her

separate property; and

        W-2.        The residence and real property located at 5106

DeLoache,           Dallas,       Texas,        75220     in   satisfaction            of    the

economic contribution claim of wife; and

        W-3.         A      judgment        for     reasonable              and      necessary

attorney's fees              and costs of $99,408.01 payable by THOMAS

FRANCIS       MOROCH         to   CHRISTY       CALVERT     COLLINS         MOROCH,    with    a

further award of $5,000.00 if the case is appealed to the

Court of Appeals and a further award of $ 7,500.00 if the

case is appealed to the Supreme Court of Texas.

        W-4.        Personal       property        as     listed       on     the     attached

EXHIBIT "E",             incorporated herein by reference.

                2.          Property to Husband:

        IT     IS    ORDERED       AND    DECREED       that     the       husband,    THOMAS


                                                                                              28
[FINAL DECREE OF DIVORCE]
FRANCIS MOROCH,                   is awarded the following as                        his    sole   and

separate property,                    and the wife is divested of all right,

title, interest, and claim in and to that property:

        H-l.         Property listed on the attached EXHIBIT "C", per

terms of the Post-nuptial Agreement,                               signed on October 30,

1987,      incorporated herein                     by reference,           confirmed          as   his

separate property;

        H-2.              Personal        property        as     listed        on     the   attached

EXHIBIT "F", incorporated herein by reference; and

        H-3. No other property.

                     3.         Debts to Wife:

        IT      IS        ORDERED       AND       DECREED       that     the        wife,    CHRISTY

CALVERT COLLINS MOROCH,                       shall timely pay, as a part of the

division of the estate of the parties,                                   and shall indemnify

and    hold          the        husband     and    his    property harmless                 from   any

failure to so discharge, these items:

        W-1. Any                and   all     debts,          charges,     liabilities,            and

other     obligations                 incurred      solely        by     the        wife    from   and

after September 18,                    2000,      unless express provision is made

in this decree to the contrary;

        W-2. The balance due, including principal, interest, and

all other charges,                    on any credit card in the name of wife,

CHRISTY CALVERT COLLINS MOROCH;

        W-3. All                encumbrances,            ad     valorem         taxes,        liens,


                                                                                                    29
[FINAL DECREE   or   DIVORCE]
assessments,              or other charges due or to become due on the

real _and personal pr<?perty a,warded to the wife in this decree;
 .w. . dw,/,e.,.)~.I)-1A-..e~ h -h.e ~o.n. ,u«                  foVr'0
                                                   .h-fJ0tlJ-.J.,.f"z;'r-6, );
~ni~~;- '~xpress provision is made in ~his aecree to the                     YL-

contrary; and

         W-4. One half the attorney's fees for John Schorsch, the

attorney for the children.

                    4.        Debts to Husband:

          IT       IS    ORDERED AND      DECREED        that   the    husband,   THOMAS

FRANCIS MOROCH,                shall timely pay, as a part of the division

of the estate of the parties, and shall indemnify and hold

the wife and her property harmless from any failure to so

discharge, these items:

         H-l. Any             and   all   debts,        charges,      liabilities,   and

other obligations incurred solely by the husband from and

after September 18, 2000, unless express provision is made

in this decree to the contrary;

         H-2. The balance due, including principal, interest, and

all other charges, on any credit card in the name of husband,

THOMAS FRANCIS MOROCH;

         H-3. All             encumbrances,        ad     valorem       taxes,    liens,

assessments,             or other charges due or to become due on the

real and personal property awarded to the husband in this

decree unless express provision is made in this decree to the

contrary;
     Isi:==ff. .
                                                                                      30
[fINA~   DECREE OF DIVORCE]
                  All       encumbrances,              taxes,      l'~~--assessments,                   or

other c arges due on the real an                               personal pr                       awarded

to the husband per the terms 0                             the temporary 0                       in this

cause,      including property t                      es on the                                  5106 De

Loache,      Dallas, Texas,              i    the event any such remai                           due and

payable                                       2003, through January 15, 2003;

        H-~.    His         own    attorney's              fees      and     costs          of     Court

incurred in this suit;

        H-( Wife's attorney's fees and costs in the amount of

$99,408.01            as     costs       as        set       forth     herein          below       under

"Attorney's Fees";
                              #P
        H-tp.    In    the     event of an               appeal by       I!asb~             the    Court

grants      additional            reasonable           and    necessary attorney's                    fees
                                                  1k,ft..c-cJ!,- 4J..,-Z;J..v!,
and costs of $5,000.00 to Wife,                              if~e/cas{ is appealed to

the Court of Appeal.s, and an additional. $7,500.00 if the case

is appealed to the Texas Supreme Court; and

       H-~.       One-half         the       attorney's         fees     and      costs       of      John

Schorsch, the attorney for the children.

                5.          Undisclosed Liabilities:

       IT    IS      FURTHER ORDERED AND                   DECREED,        as     a    part      of   the

division        of    the     estate         of    the parties,          that         any   community

liability not expressly assumed by a party under this decree

is to be paid by the party incurring the liability,                                              and the

party incurring the                 liability shall               indemnify and hold the


                                                                                                       31
(rINAL DECREE OF DIVORCE)
other party and his or her property harmless from any failure

to so discharge the liability.

    XI.           OTHER ORDERS:

  A.              IT    IS       FURTHER ORDERED             that THOMAS FRANCIS MOROCH

shall        vacate          the      residence        at     5106    De    Loache,        Dallas,
                                 Q.(ttJ           W     "l
Texas, 75220 by !{:Oveittbel 30, 2004.

  B.      IT IS FUR.THER ORDERED AND DECREED that within one day

of the closing on the residence,                              at 5106 DeLoache,            Dallas,

Texas,       75220,          CHRISTY         CALVERT    COLLINS MOROCH             shall    tender

$76,500.00             as    a    lump       sum child support payment                to THOMAS

FRANCIS MOROCH as                    specifically set forth herein above p.21

(Section VIII) .

             IT    IS       FURTHER          ORDERED    that                 FR.i\N1~IS    MOROCH

          appear            in     the      law   0   ices    of C.

          Preston Road,                   Suite                                               2:00

          on      January             5,              and                                     have

 cknowledged,                and                                            GUNNST           these

  struments, in                           event

        1.    Special

to t      s Dec         e of Divorce                         IT "D",

XII.    INFORMATION REGARDING THE PARTIES:

        The       information               required    for     each       party    by     section

105.006(a) of the Texas Family Code is as follows:




                                                                                                32
(FINAL DECREE OF DIVORCE]
Name:               CHRISTY CALVERT COLLINS MOROCH
         Social Security number:    455-72-6281
         Driver's license number: 14047581    Issuing State: TX
         Current residence address:    4401 Grassmere,    Dallas,
         Texas 75205
         Mailing address: 4401 Grassmere, Dallas, Texas 75205
         Home telephone number: (214)526-6808
         Name of employer: N/A
         Address of employer: N/A
         Work telephone number: N/A


Name:               THOMAS FRANCIS MOROCH
         Social Security number:    064-34-7010
         Driver's License number: 08802095     Issuing State: TX
         Current residence address:      5106 DeLoache, Dallas,
         Texas 75220
         Mailing address:  5106 DeLoache, Dallas, Texas 75220
         Home telephone number: (214) 363-3388
         Name of employer: Moroch Partners, L.P.
         Address of employer: 3625 N. Hall, Suite 1100, Dallas,
         Texas 75219
         Work telephone number: (214) 520-9700


Name:               NICHOLAS THOMAS MOROCH
         Social Security number:    455-72-0422
         Driver's license number: 19686163    Issuing State: TX
         Current residence address:     5106 DeLoache,    Dallas,
         Texas 75220
         Mailing address: 5106 DeLoache, Dallas, Texas 75220
         Home telephone number: (214)363-3388
         Name of employer: N/A
         Address of employer: N/A
         Work telephone number: N/A


Name:               ALEXANDRA CHRISTY MOROCH
         Social Security number:    627-01-2299
         Driver's license number: N/A    Issuing State: TX
         Current   residence address:   5106 DeLoache,   Dallas,
         Texas 75220
         Mailing address: 5106 DeLoache, Dallas, Texas 75220
         Home telephone number: (214)363-3388
         Name of employer: N/A
         Address of employer: N/A
         Work telephone number: N/A


                                                               33
[FINAL   D~CREE   OF DIVORCE)
XIII. FAILURE TO OBEY ORDERS:

     EACH PARTY WHO IS A PARTY IN THIS DECREE IS ORDERED TO
NOTIFY THE OTHER PARTY AND THE CLERK OF THIS COURT WITHIN
TEN DAYS AFTER THE DATE OF ANY CHANGE IN THE PARTY'S
CURRENT RESIDENCE ADDRESS, MAILING ADDRESS, HOME TELEPHONE
NUMBER, NAME OF EMPLOYER, ADDRESS OF PLACE OF EMPLOYMENT,
OR WORK TELEPHONE NUMBER.       THE DUTY TO FURNISH THIS
INFORMATION TO THE OTHER PARTY AND THE CLERK OF THE COURT
CONTINUES AS LONG AS ANY PERSON, BY VIRTUE OF THIS ORDER OR
DECREE, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT OR IS
ENTITLED TO POSSESSION OF OR ACCESS TO A CHILD.  FAILURE TO
OBEY THE ORDER OF THIS COURT TO PROVIDE THE CLERK WITH THE
CURRENT MAILING ADDRESS OF A PARTY MAY RESULT IN THE
ISSUANCE OF A CAPIAS FOR THE ARREST OF THE PARTY IF THAT
PARTY CANNOT BE PERSONALLY SERVED WITH NOTICE OF A HEARING
AT AN ADDRESS OF RECORD.

     FAILURE TO OBEY A COURT ORDER FOR CHILD SUPPORT OR
POSSESSION OF OR ACCESS TO A CHILD MAY RESULT IN FURTHER
LITIGATION TO ENFORCE THE ORDER,     INCLUDING' CONTEMPT OF
COURT.     A  FINDING  OF   CONTEMPT  MAY   BE  PUNISHED BY
CONFINEMENT IN JAIL FOR UP TO SIX MONTHS, A FINE OF UP TO
$500.00 FOR EACH VIOLATION, AND A MONEY JUDGEMENT FOR
PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.

     FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO
THE PLACE AND IN THE MANNER REQUIRED BY A COURT ORDER MAY
RESULT IN THE PARTY NOT RECEIVING CREDIT FOR MAKING THE
PAYMENT.

     FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT
JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR
ACCESS TO A CHILD.   REFUSAL BY A PARTY TO ALLOW POSSESSION
OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY
COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

     UNLESS APPROVED BY THE COURT IN WRITING, AGREEMENTS
BETWEEN THE PARTIES REGARDING CHILD SUPPORT WHICH ARE
CONTRARY TO, OR IN MODIFICATION OF, THE COURT'S ORDERS
HEREIN SHALL NOT BE RECOGNIZED BY THE COURT AND SHALL NEVER
BE A DEFENSE TO A MOTION FOR CONTEMPT ALLEGING FAILURE TO
PAY CHILD SUPPORT AS HEREIN ORDERED.

XIV.    INCOME TAXES:

        The     parties       agree   that   each   party   shall   comply with


                                                                             34
[FINAL DEeRE;;: Of DIVORCE]
all    relevant           provisions       of        the       Internal       Revenue        Code    in

regard to taxes due or paid during the marriage.

        IT      IS    ORDERED      AND     DECREED             that    the        parties'    income

shall      be        reported      and    allocated             in     accordance           with    the

Internal Revenue Code.

XV.     CHANGE OF PETITIONER'S NAME:

        IT IS ORDERED AND DECREED that CHRISTY CALVERT COLLINS

MOROCH's         name        is    changed           to        CHRISTY        CALVERT        COLLINS

effective            on      the    date        signed           by         the     Court     below.

Petitioner states and the Court finds that:

                 1.         The change of name has not been requested in

                            order to defraud creditors;

                 2.         Petitioner is not a felon; and

                 3.         Petitioner          is        not         the     subject         of    an

                            outstanding         warrant          or     charging          instrument

                            as provided by law.

XVI. ATTORNEY'S FEES:

        IT IS ORDERED that THOMAS FRANCIS MOROCH shall pay to

Peti tioner,          CHRISTY CALVERT COLLINS MOROCH,                              reasonable and

necessary            attorney's          fees    of        $99,408.01,              for     which     a

judgment        is     granted      in     favor          of    CHRISTY           CALVERT    COLLINS

MOROCH as        costs against THOMAS FRANCIS MOROCH,                                 Respondent.

IT IS FURTHER ORDERED AND DECREED that the Court grants an

additional award of $5,000.00,                         if this case is appealed to


                                                                                                    35
[FINAL DECREE OF DIVORCE]
the Court of Appeals and an additional amount of $7,500.00,

if the case is appealed to the Supreme Court of Texas,                                      to

Peti tioner,          CHRISTY     CALVERT     COLLINS      MOROCH      against THOMAS

FRANCIS MOROCH,             Respondent,      subject to a dollar-for-dollar

credi t     against the lump-sum payment due to THOMAS FRANCIS

MOROCH      from CHRISTY CALVERT COLLINS MOROCH per Section XI

B.     above.         IT    IS   FURTHER    ORDERED        that   each       such      amount

shall      accrue       post-judgment         interest,        if,     as,       and     where

applicable,           at the statutory interest rate of six percent

(6%)      simple      interest      per    annum,     compounded annually,                 for

which      let     execution       issue    upon     request.          IT        IS   FURTHER

ORDERED         AND    DECREED      that      each     attorney        of        record     is

specifically           released     from     any     further      representation            in

this cause upon entry of this decree.

XVII.     COURT COSTS:

        All      costs of Court expended in this                      cause are taxed

against         the    party      incurring        same,    except         as     otherwise

provided herein.

XVIII. RELIEF NOT GRANTED:

        IT IS ORDERED AND DECREED that all relief requested in

this cause and not expressly granted is denied.

XIX. DATE OF JUDGMENT:

        This      divorce        judicially    PRONOUNCED            AND     RENDERED       in

court      in    Dallas      County,       Texas,     on    August         29,    2002    and


                                                                                            36
{FINAL DECREE OF DIVORCE]
October 31,          2002,     and further noted on the Court's docket

sheet      on      the      same    date,   with    further    rendition     dated

October       7,    2002,     and    such   rendition   amended    November     I,

2002,        but         ministerially        signed     and      ratified      on

______________________ , 2003.


SIGNED on                                   2003.




                                                          PRESIDING



C.
Attorney for Petitioner


CHRIS WElL
Attorney for Respondent


JOHN SCHORSCH
Attorney Ad Litem for the Children



APPROVED AS TO FORM AND CONTENT:


CHRISTY CALVERT COLLINS MOROCH
Petitioner


THOMAS FRANCIS MOROCH
Respondent




                                                                               37
[FINAL DECREE OF DIVORCE)
                                     ·"X NU.   : <!14 553 7385                 01 2002 02:09PM        P2




                                        99-19687-T/30lst

                                                      IN THE DISTRICT COURT
IN THE MATTER OF THE
MARRIAGE

CHRISTY CALVERT COLLINS
                                                      301!IT JUDICIAL DISTRICT
MOROCll
AND
THOMAS FRANCIS MOROCll

AND IN THlt INTEREST OF
NICHOLAS THOMAS MOROCH
AND ALEXANDRIA CHRISTY MOROCH                         DALLAS COUNTY, TEXAS

                             COURT'S AMENDED RENDITION
                                    DATED 11-01-02

               Came on for final trial on the merits, the above styled and numbered cause. Both
sides appeared with their c(Junsel of record and the Guardian ad Litem appeared for the children,

                The Court accepts the stipulations of the parties. The COllrt GRANTS the divorce
on the grounds of insupportability and APPOINTS hoth parents as Joint Managing Conservators
with the l'atherhaving the exclusivc'right to establish the residence ofthe Children, to make
medical and educational decisions. The Court limits the geographic region oftha children's
residence to Dallas und contiguous counties. The Mother is awarded the Standard Possession
Sched~J!e and is ORDERED to pay lump sum child support in the amount of $76,500, as further
described herein. This figure is the total 0[$1500 for two children times 7 months and $1200 for
one child times 55 months. Each party is ORDERED to pay Y2 orthe uninsured mcdicals and the
Father shall continue carrying the children on a medical policy.

               The Court finds that the parties entered into a valid Post-nuptial agreement signed
Octllber 3D, 1987 and ORDERS the property divided and taxes paid per the Post-nuptial.

                The Court frods that the Post-nuptial agreement signed on October 30, 1987 and
stipulated into Evidence as Exhibit I, limits the existing commQnity estate solely to the house
and lot at S106 De Loache, Dallas, Texas. The Court finds that the parties stipulated that the fair
market value of the home is $1,545,000. The court finds that the Wife's separate estate has a
claim under Section 3.403 ofthc Texas Family Code for economic contribution for her separate
estate's payment of capital improvement$to the community estate on Dc Loaehe and her
separate estate's payment ofthe $10,000 down payment on De Loache and the payment ofthe
$300,000 mortgage 011 De Loache.

                The Court FINDS that the evidence establishes by clear and convincing evidence
her Reparate estate to the sole source offunding for the improvements on the undisputed sole
Ilsset of the community estate located at 5106 De Loache and that the burdon of proof shifted to

                                                                                        r• II ""/'~'/"\'IlI
                                                                                        "~~\'I"""'~EX~H!'!'!'IBI~T
                                     ,
                                 ~       -I;, NU.   ; ~14 b::>,j (.jtl::>       01 2002 02:10PM      P3




the Husband to prove that any funds other than those of Wife's Separate Bstate WIlTlll1Sed for
sueh improvements. The Court FINDS that it is uncontroverted that her Separate Estate paid the
$10,000 down payment and the $300,000 mortgage on De Louche.

                The Cuurt further Finds that the Wife's Separate Estate's funding ofthe capit~d
improvements in the amount of $1,249,043.45 and the $310,000 payment as described, created a
claim for economic contribution by the Wife's Separate Estate against. the Community Efitate.
The Court GRANTS the claim for economic contribution and ORDER,'::! an award of
$1,559,043.45 to the Wife. The Court satisfies the economic contribution claim to Wife's
Separate Property by aW<\fding her the home in it's entirety and finds that in accordance with the
Post-nuptial, there is no more community property to be awarded.

              The Court ORDERS that the Husband vacate the residence by November 30,
2002. The Wife i~ lo tender $76,000.00 as lump sum child support to the Husband within one
day ofthe closing of the residence, ifshe sells the residence, or by December 31,2002,
whichevcr occurs first.

               The Court grants the Wife's request for attorney's fees and costs of $99,408.01
and grants $5,000, if the case is appealed to the Court of Appeals and $7500 if the case g()es to
the Supreme COllrt.

              The attorney for the Petitioner shall prepare and present the final orders in
accordance with Rule 305 of the Texas Rules of Civil Procedure.

               SIGNED this Ih [ [ day of November, 2002.



                       JUDGE PRESIDING
                                            .
                        21 d361S767         'i'                  KINKOS                                         PIlf!%.        22
                                      I
                                      I
                                                                                                           .'




                                                             •
                                           SEEkRA.E ?ROPERTY Qf
                                          CHRIS,I C~LVERT HOROCR

                                                   ~I1UL:E       A


1.     +nTereg~              in fve~est Explora~ion_
                 l              i
2.'    ar~e.ville                 F=ap~rLY'
                 ,                ,I
                                   ,
3,     C~laSLa              praper~T'
                 ,                    ,
4.
         .
       Nuteen
                 I            .   ,
                                  •
                        8ccouhL No.               ~I-144-H,5tylQd Ch~isLi              c.   HorDch~

5.     Alt
       D~Laacher
                     Eurnitur~. f~rni~hinG~ a~d flXLur~s
                                   Texas.
                              Da~lasr
                                                                                 IDeated      ~~    SL06
                 :                I
                 :                I
6 ..   ~l~           jewelry      ~n      Lhe     p03~.~~ion     of    Cb~is.i    C. Horoch.
                                      I
7.     Thk Por5ch~ ~11 Automobil~.

8.     Th. Lincoln
                                  i
                                  fontinen~al          Automobile.
             ,
                                  ,
                                  ,
9.     llrp«n          »rotll~~           A"coun'C No. 594 955, st:yled Christi' C.
       Mo~och,              Sep~a~e             P~op=rLy~
             !
             !
                                  I
                                  ;
10.    Al~           real    es~a'Ce       and     i~prave~e~r~        loca~ed    at
                                  !
       S7~6 50U~bU~ster~. Dallds~ ~exa3
       57~Q' SouehW~~t.r~.              Dallas; Iezas
       57;46 South,,,j5~~:-n, Dai.la.5, !e;.:;.s
       57;31 :!J;"'n Haw'L, Oz.lla.s, '!;:xa5
       51:47 :a::-l"n /1;0,'=. '.J .. lla.s, !e!lCU
           i .
                                  !
       " Oi"r 1. 7! a. n prop' e1:"': i,;g
i1..   I;l
             ,                                    loca~ed   in   Ne~   Mexico.
                                  ,




         "




                                                                                                ~      EXHIBIT
                                                                                                ~"         0              '(
                                                                                               I           D
 ·"11/12/21301    18: 33      214881374132                                   WEIL PE."TROCCHI                                      PAGE      25/51
                                               ";~
                                                                                                ,t ... .
·11/21/l999      2e:1:7      2143619797                                 KINK05                  '... :l.)
                                                                                                           ~


                                                                                                                               PAGE
                                       I        - -,:.'"                                         ...: :-
                                       I
                                       I
                                       I




                                              S~PAR~T!          ?RO~ER1Y        OF
                                    ,             THOtlAS ...        ttOMCR

                                    I                      SCHEDULE»

                 !loil Y corpO"lt:iOn Stoel<. held by SMith iI'..,:01=:r.,
                    ,          I
                 Actounc No. p2S-Sa 6 0oz.
                    ,
                    .               .
                                    ,
                 19~6 J2ep Ch~~oke~                    ~n Tha~as
                    :               I                                _. F.   Moroch"s name.

        J.       ChfYS1~r         Lilousin~            owned by'      ~oroch      ~ AssQcia~~~.

        4.       fo~d Truck
                   i
                                    in
                                     !
                                            Thoillas        F. Ho"o~h's nawe •.

        5.       Al~      $,cck   i~       Hcrocb and          As~ocia~~s.
        6 •      ~:::~n"j.p"1     '" oUn"!: of             ~l(Jo.o_aQ.Oa
                                                              ·C.D. in S;:ockJllall. Savings
                 in',' 1:he. ni!.me. of Christi GalvQrt: Horoch to be "C1;ansfe:t:r:e:d
                 to the nam~ of Tho~a5 F. Horoch .
                     I        -      •
                                     I

        7.       Tbls PIitlc.i'P~Jl l)::l.la.ncl! of assa't.s can't.ai.ned. in. .B.rot:l'n :Drct:bers,
                 H"i"ryman .. Cjo. t -Aecoun" No. 59~ 956, QU"J:""n"l.y s;:yl .. d
                 c~ris~i c. ~oroch. cQm~uni~y pro~~r~y_  ~he b~1ance in
                 e~cess of ,Qe principal amount to ~~ ~~~n~ter~ad
                 Ud~on Bank aousshold Accoun" No.  500166h.
                                                                                                               .0
                   i         .

        ~.    ~ \\          'if-l-oJ- u....Y-w..--\:{            L     G ud.!.. II.,'S+t:tet- ?'\~:*. 0~LG
                   I
~\L/
  ,




                                                                                                                    i         EXHIBIT
                                                                                                                    :
                                                                                                                    ~
                                                                                                                        \;\
                                                                                                                              ~         If
                                                                                                                    i         ~
                                             SPECIAL WARRANTY DEED

 DATE:                     _ _ _ _ _ _ _ _ _ , 2002

 GRANTOR:                    THOMAS FRANCIS MOROCH

 GRANTOR'S MAILING ADDRESS                        (INCLUDING COUNTY):              3625 N. Hall,

 Suite 1100, Dallas, Dallas County, Texas 75219

 GRANTEE:                  CHRISTY CALVERT COLLINS MOROCH

 GRANTEE'S                    MAILING        ADDRESS     (INCLUDING            COUNTY) :           4401

 Grassmere, Dallas, Dallas County, Texas 75205

CONSIDERATION:

              The division              of   property    in   Cause      No.       99-19687-301,

styled              "In the Matter of the Marriage of Christy Cal vert

Collins                Moroch      and       Thomas    Francis     Moroch          and        in   the

Interest of Nicholas Thomas Moroch and Alexanderia Christy

MOroch,              Children",         entered in the        301st Judicial               District

Court            of Dallas         County,      Texas,   and ten dollars and other

valuable consideration paid by Grantee, receipt of which is

herewith acknowledged and partial satisfaction of Grantee's

'claim            for        economic    contributions        by   her    separate            estate

against the community estate.                            Grantor assigns to Grantee

the casualty insurance policy on the property,                                          all utility

deposits for utility service at the property, and all funds

held in escrow for payment of taxes and insurance premiums.

PROPERTY (INCLUDING ANY IMPROVEMENTS) :

              LOT 11, BLOCK 5581, SUNNYBROOK ESTATES, ADDITION, CITY

                                                                               .         EXHIBIT
                                                                               •
(SPr:;CIAI.   ~IARRANT,{   DEED)
                                                                               i   \l    f\   II          1
OF      DALLAS,           DALLAS      COUNTY,       TEXAS;        also    known       as     5106

DeLoache, Dallas, Texas 75220.

RESERVATION FROM AND EXCEPTIONS TO CONVEYANCE AND WARRANTY:

         This deed is subject to all easements,                               restrictions,

conditions, covenants, and other instruments of record.

         Grantor,          for     the      consideration         and     subject      to    the

reservations               from       and     exceptions          to      conveyance         and

warranty,          grants,         sells,     and       conveys     to    Grantee      all    of

Grantor's interest in the property,                            together with all and

singular the rights and appurtenances thereto in any wise

belonging, to have and hold it to Grantee, Grantee's heirs,

executors,          administrators,            successors,         or assigns forever.

Grantor         binds           Grantor     and     Grantor's          heirs,     executors,

administrators,                 and    successors         to   warrant          and   forever

defend        all         and     singular        the    property        to     Grantee      and

Grantee's heirs,                 executors, administrators, successors,                      and

assigns against                 every person whomsoever lawfully claiming

~r   to claim the same or any part thereof, except as to the

reservations               from       and     exceptions          to      conveyance         and

warranty,         when the claim is by,                   through,       or under Grantor

but not otherwise.

        When the context requires, singular nouns and pronouns

include the plural.

        Grantor           assumes      all     ad       valorem    taxes        due   on     the


(SPECIAL WARRANTY DEED)
                                                                                                    2
 property for the current year through date of execution.




                                           THOMAS FRANCIS MOROCH

                                           This instrument was prepared
                                           based      on     information
                                           furnished by the parties, and
                                           no independent title search
                                           has been made.

 STATE OF TEXAS               §


COUNTY OF DALLAS              §

          This          instrument   was   acknowledged   before   me   on

_____________ , 2002 by THOMAS FRANCIS MOROCH.



                                           Notary Public, State of Texas




($PECrJl.L WARRAN'rY DBEDj
                                                                             3
                                                                        1



     1        The wife is awarded and I'm trying to phrase this in a way
     2   that we can put in the decree, all property in her possession,
     3   all property in, that's currently in the house on DeLoache,
,
     4   with the exception of the box springs and the three

     5   compressors.   And she is awarded the two suits of armor, if
     6

     7

     8

     9

    10

    11

    12

    13

    14

    15

    16

    17

    18
    ,
    19
    20

    21

    22

    23

    24

    25

                           TENESA SHAW, CSR, 301ST DISTRICT COURT
                                           (214) 653-7408
                             EXHIBIT '''F''
             PERSONAL PROPERTY OF THOMAS FRANCIS MOROCH

   1.      All property flUJ;cll.. sed );)1' THOMl'.S FRANCIS MeROCH
           sliDee the postnnptial agreement dated Oeteb9;;~O,
           ~.       I;; f"..$. i~~Al\':'"1        /},Olflflo"(h(JJ;r)z/L   l~rJD 17~
           3 av:CtJJ;.~ C<Jwr'YlAJ~ -+ ;).. bvy ~p'f w'JN.. O.r /r:r-. vtu
             }fv-"-'-,     )-vI,\;




(EXHIBIT "F" PERSONAL PROPERTY OF THOMAS FRANCIS MOROCH)                               1
                                              'i : :.'O(}OJ to
                                               ;,,,:-:'::: ;::(.'~~~:';J
pu~       ~>tl!~    ~":      ;,"             ",. ,x<;uJ        qql
                                                                           .,: .1: ...
P ~J''')'!I!'()'-
  ..., V<..!.,~ V
                    ,', ,.
                    ~"t...
                           l' ,;.         • ,.' - ~I"""II
                           ..,.,.". ", .'~,,""": 1·.;.j·... ,• ..:1~
                                                                                   ' : . ,I
Op '8~XOl 'I'.;.',,;::,":;'! ::::~J; :(i          to
                                                 C1JnO!,)
IOPISla       0~i     J0 );;(;i::) 'WL,\IH                v~:r       "
                                   S'illNG ~() !.lNflOO
                             {       S';'X31::iO 31111S




                                                                                                                   I
                                                                                                                  I




                                                                                                              I
                                                                                                             I



                                                                                                         I
                                                                                                        I



                                                                                                    I
                                                                                                   I



                                                                                               I
                                                                                              I
TabD
                CHRISTY CALVERT COLUNS .




~'Uu ~uke.-,
.      z:L ~ '-to ~ ~t..,.. ~e'c ~VJ...
    ~~L~~. S\~~~~a8 ~
    \.)A.   ~ d-W~~ ~lo.O ~L£ ~~
        V\-o-t- ~ ~ ~ ~~<3 \: ~'L
    ~~~~(. ~~ c",D~L.\(Dko
    9 >{tA "": 2<"- ~, ~<- ~1l1UX:;:,
    '~--W ~- 0-        ~ 01\ wku
    ~O\l~.
            ~S ~J'(lOl p~ ~·eaJL 3L'f">--
 ~~a~ ~~)~ ~w....J..-ek-~
.'\D~ OO(?k. ~~ ~ u)~tl 'lA.Rpm~­
 ~h cS'> ~~1.!A.~ . 0: bti~~L.~
 C+ltt-- t l (;).~<t:D. ~ CI: ha:v~
                \
                                                (X,),L.i'................"......,.




                                    ~_...... ~rc::.........
                    )                      EXHIBIT
~ ~dV~L.                               (Nt~f!
                                     ~
    ,   .
                        '",-/                         ''-.-.--




             ,                  w.. ~L~                 ~             0

            ~6- ~ 5l'!..S~                           'u-         ~~
            bOO ~~ ~W<L                                          ~>-- ~
            ~USt~ ~e-~~ ~~ ~
            cl.-~';"~ ~;- ~~                                      Q: U::L~
             <g:                           r       tV1 ~ 'd:
            ~e.:                 LL::t-O       ~c§ LUl~           ()...) C>b   olv-,.
            ~ C2k~9. ~M~ ~ 6~'
;
             \J\.A."L   ~ cl~              l:0'ttk ~L-            !.Nnu~
             whJL"L ~~ ~p~~,~ ~~
             ~~ ~ bl \\ \lkL.. ~ <&l'b)~
             V\..O'-tr          Jl~~ ~         .


                        =c\:J ~ oy~ ~W-. ;Jf~\
             ;;M~~ ~::~~ ~
              ~ ~ii±                           \k     (j"'--
                                                                           •
/
    -'


/
TabE
'.

                                           GUNNSTAKS
     I                                        LAW OFFICE
                                                C. LUKE GllNNSTAKS
                                                Counselor & Attorney At Law



                                              December 17, 2004

         Christy Calvert Collins
         4401 Grassmere
         Dallas, TX 75205


         Re: Moroch
         Cause: 99-19687-301 and 05-03-00492-CV


         Dear Christy:

                 Thank you for your recent payment and heartfelt kind compliments on my
         representation of your interests. I thank you for allowing me to represent you in your
         divorce. However, based upon your closing comment that you "assume our professional
         relationship is terminated", I have filed aMotion to Withdraw from further representation
         in your case in both the Court of Appeals and the trial Court. Once the Court signs an
         order, I will copy it to you through the office of Paula Gaus, who will remain as your
         counsel of record in each Court.

                 For the record, I suggest that you should not blame me for "failure to get (your)
         warranty deed signed". That is the result of Tom Moroch and his attorney filing the
         appeal. The Judge in her discretion refused to order Mr. Moroch to sign the deed in light
         of the appeal. This action on Mr. Moroch's part is exactly what he had been threatening
         to do, and despite his threats, in accordance with your instructions to me, we proceeded to
         trial and won at trial. The appeal was a consequence of our victory in the trial Court, not
         a consequence of any failure or negligence on my part.

                 I continued to bill you for services previously rendered and not paid for, as well as
         for new services rendered. I never billed you "for services not rendered" as your letter
         mistakenly alleges. I coordinated with and cooperated with your appellate attorney to
         protect your interests while she performed the vast majority of the appellate work, as you
         hired her to do.

                I thank you for your partial payment and look forward to receiving the remairiing
         balance due on your account at your earliest opportunity. I have remained committed to
         your case and have remained as your attorney of record without any payment on your
         account during the entire period of time that you told me that you had no funds while the
         house was tied up in the appeal.
            BOARD CERTIFmD. FAMILY LAW: TEXAS BOARD OF LEGAL SPECIALIZATION
                   DIRECI"OR: TEXAS ACADEMY OF FAMILY LAW SPECIALISTS
                       FELLOW: COLLEGE OF THE STATE BAR OF TEXAS
                        TEXAS MONTHLY "SUPER LAWYER" 2003 & 2004
         (LETTER)        15150 Preston Road #300 • Dallas, Texas 75248     1
        As I understand it now, the house has been sold and there is no legitimate reason
for my patience to be rewarded with the approximate 90% discount of my remaining bill
which you have unilaterally decided you should apply to your outstanding balance with
my office. During the course of the appeal I took every opportunity to reduce our billable
costs to you and even offered to withdraw on several occasions. On each such occasion
your appellate attorney told me that you wanted me to stay on the case,and accordingly I
did so. It is clear now that my level of commitment to your interests exceeded your level
of commitment to equitably reimburse me for my services rendered as part of that
commitment. I can be blamed only for trusting you to make good on your promises to
pay me when the house sold.

         Fortunately, I also have contractual remedies available to me and if I do not
receive full payment or acceptable payment arrangements on the remaining unpaid
balance prior to January 1, 2005, my office manager will be sending your account to a
collection agency and/or I will be preparing a Petition in Intervention for Attorney Fees
in the trial Court in the event that alternative becomes appropriate or necessary.

           I thank you for your consideration in this matter and wish you well, as always.

                                                Sincerely,


                                                         . LUKE GUNNSTAKS
                                                        Attorney at Law
                                                        15150 Preston Road, #300
                                                        Dallas, Texas 75248
                                                        Tel: (972) 392-2300
                                                        Fax: (972) 763-2469
                                                        State Bar No. 08624370

CLG/nm




(LETTER)                                                                                     2

								
To top