v.
Robert Christopher Marsh
:Tasha Rose Marsh (Pro Se Rppellant)To:Carol flnne Harley 16:16 12/11/17 ET Pg 2-25
CAUSE NO: 0917-00184-CV IN THE NINTH COURT OF APPEALS AT BEAUMONT TASHA ROSE MARSH Plaintiff-Appellant v. tC ! | 2317 ROBERT CHRISTOPHER MARSH 5**!:>}!"»*•«^ley ...nt-- ',0|:I''-°IJ^ Defendant-Appellee ON APPEAL FROM THE 258TH DISTRICT COURT THE HONORABLE JUDGE ERNEST MCCLENDON, PRESIDING APPELLANT'S REPLY BRIEF PRO SE LITIGANT Tasha Rose Marsh 151 Country Wood Drive Shepherd, TX 77371 Telephone: (281) 419-7100 Oral Argument Requested 12/11/2017 MON 16:25 [TX/RX NO 7328] @002 :Tasha Rose Marsh (Pro Se flppellant)To:Carol Anne Harley 16:16 12/11/17 ET Pg 3-25 IDENTITY OF PARTIES AND COUNSEL Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant presents the following list of all parties and names and addresses of its counsel: NO. DV13,774 Appellant/Plaintiff: Counsel: Tasha Rose Marsh Tasha Rose Marsh 151 Country Wood Drive Shepherd, Texas 77371 Telephone: (281) 419-7100 Respondent: The Honorable Judge Ernest McClendon 258th Judicial District Court San Jacinto Court Building five miscarriages, 17 years of childrearing, homeschooling and being a housewife, Mrs.
[*10]Marsh suddenly has "a pattern and history of bad behavior and poor parenting" (p.6). She has suddenly become "violent towards Appellee and the parties' children" and then "been arrested" (p.2). In addition to being "abusive" to all in the household, Appellee states "she
was difficult to live with" and "the children wanted nothing to do with her" (p. 12), In fact, she flat out puts "the children in emotional and physical danger" (p. 20) and their house, which Appellee had occupied for half-a-decade and only recently left, is now "infested with
fleas" and has "water leaks." Appellee does everything but invoke the Spanish Inquisition and designate their family home of half a decade the Amityville Horror. Comically, Appellee drafted his "J'accuse...!" rebuttal the very moment Mrs. Marsh—heretofore the child-beating
felon jailbird according to Appellee—had possession of their four youngest children for the recent 2017 Thanksgiving holiday at the behest of the Appellee and at the very house he smears as a flea-bitten, water leaking house of abuse and horror! It should also be noted
that this past summer Appellee let the same youngest four children spend two months of summertime vacation with their mother at the same house "infested with fleas" and "water
leaks" and with this very same mother whom Appellee condemns as an "emotional and physical danger" to the children.
If being characterized as an "emotional and physical danger" to her children (who Appellee happily turns over for months) is not enough, Mrs. Marsh is furthermore vilified as
inept. Although she has homeschooled their seven children for seventeen years, Appellee is now worried because, as he puts it, she has "no specific degrees or experience other than
what she had done with the children in the past" (p. 11). In fact, she plainly just does "not do a good job of being a hands on parent" and "the children often had to fend for themselves when in her care" (p.12). Mea culpa! Somehow ail of Mrs. Marsh's children
learned to read while in "in her care" and were never held behind for the better part of twenty years during Mrs. Marsh's homeschooling of them. In fact, they excelled under her tutelage. Yet the portrait Appellee paints for the Court is one of Les Miserables street urchins at the mercy of passers-by; guttersnipes eating green onions growing In the yard while their mother tells them to eat cake and has her nails done. What Appellee fails to mention Is that he is a work-from-home house-husband, so the children were never simply
[*11]"in her care" nor "had to fend for themselves," they were in fact in his care as well, 24x7, year after year.
Finally, Appellee plays the last character assassinating card in his brief: Mrs. Marsh, the "violent" "abusive" "difficult to live with" cheating guilty-until-proven-innocent felon with
"a pattern and history of bad behavior and poor parenting" who puts "the children in emotional and physical danger" in her flea-infested water-leaking house.... Mrs. Marsh plainly just does not care about getting her children because "Appellant did not file her
Petition for Divorce seeking custody of the parties' children until February 9, 2016
approximately three months after the parties separated and Appellee moved with the children to Florida" (p. 2). The reason for this is because Appellee, the parties' sole breadwinner for 18 years, abandoned her and left her penniless with their $125D/month mortgaged property, utility and credit card bills, and a broken down car. Mrs. Marsh, who had only spent her entire adult life raising and schooling their children, possessing no other skill set than those of "mother" and "housewife," had to go out and look for work, lean on the goodwill of her church to help keep the lights on, and it took those months to financially obtain the funds to secure legal counsel to file for Divorce. Appellee's rebuttal is a virtual
North Korea loaded with Weapons of Mass Distraction.
The matter at hand is to reexamine the court ruling for indiscretion with respect to the Lower Court, not to sling mud nor plumb the symptoms of a marriage in a downward spiral, actions Appellant believes obscure and detract from the facts and law needed to resolve the Appeal at hand. It is less the concern of Mrs. Marsh that Appellee intentionally inserted these emotionally sensational, denigrating characterizations and half-truths for this purpose, more her belief that the issues in the Appeal are better served by putting on a business face and not war paint. To wit: Did the Honorable Judge Ernest McCiendon reversibiy err in seizing all seven of her children and giving full residential custodial powers to Appellee without regard to geographic restriction? Did Judge McCiendon make a snap
[*12]decision based on emotion and/or insufficient evidence that qualifies as arbitrary and unreasonable with respect to Texas' statues, legal traditions, and the opinion of the Ninth
Circuit Court of Appeals?
[*13]pursuit. Appellee could move to Canada, Florida, Zimbabwe or choose to stay in Texas, in no way would his work situation change or be impacted. In fact, Appellee TWICE admitted to the Trial Court that the children's homeschooling regime in Florida was "identical" (R.R. p.89) to the programs that the children were previously doing in Texas with their mother.
So what underlying motive would Appellee have to remove the seven children a thousand miles away from their home and mother—the distance from London to Rome—which of his own admission in no way advanced his career or financial standing nor the children's education, which he twice admitted was "identical" to that provided by Mrs. Marsh? A: It was less a run to Florida, more a run into the arms of his enabling mother and father, which
Appellee admits was the driving reason (R.R. p. 69) for his desire to abandon his home and property and wife in Texas where he had set down roots for years with his Mrs. Marsh and their seven children. It should also be noted that just prior to the divorce proceedings
Appellee declared bankruptcy (Case Number 15-32593, Southern District of Houston
Division, Judge Karen Brown presiding) after years of mismanaging his finances and spending beyond his means. One may logically construe this as a bankrupt middle-aged father of seven fleeing his wife and mortgaged property to live in his parents' basement under the pinions of their wings. However, Appellee's bankruptcy only facilitates his ability
to keep the children in their home state, not hinder it. By abandoning his creditors and financial obligations, Appellee had no pressing need for his parents' financial and residential resources, a key point to consider in the Lower Court's conservatorship decision with regard
to Tex. Fam. Code §153.001(a) 1-3 and §153.002. When Appellee admits he wants the Court to give him "the authority to move the children to Florida" so that he could "have help" from his parents (R.R. p. 69), what "help" does he specifically mean? Appellee wiped his debt slate clean! Homeschooling the children? He believes that is "identical" to what Mrs.
Marsh provided the children. Work? He can theoretically do his job from a Starbuck's with
Wi-Fi in Katmandu.
[*14]More telling than Appellee's strange call for help a thousand miles away however, is
Appellee's view on co-parenting. When pressed on this matter with a hypothetical situation
where either Appellant or Appellee could move the children across the country (R.R. p.71), he hedges with contradictory albeit self-serving responses:
"COUNSEL: But either way, if you live in Florida, either she has to move. If she moved to
Wisconsin, you would have to move; is that correct?
APPELLEE: Yes.
[*15]were raised in for the past seventeen years so they can be near their mother if I win. It is the cross-examination equivalent of "Do as I say not as I do."
Contrary to Appellee's accusation that "there was sufficient evidence in the record to
support the position that Appellant was not a parent that had shown the ability to act in the best interests of the children" (p. 13), no one individual has shown more personal sacrifice
than Mrs. Marsh in devoting her entire life as a mother to "act in the best interest of the child" (Tex. Fam. Code §153.002)—seven children to be exact—for the past seventeen years! She bore them, breast fed all seven, taught them to read, and has shown the utmost
selfless care toward training their faith in God, nutritional health, emotional health, education, and well-being. The Lower Court did not just arbitrarily show indiscretion in its application of Tex. Fam. Code §153.001(a)(l)(3), its legal public policy obligation to "assure that children will have frequent and continuing contact with parents" and "encourage parents to share in the rights and duties of raising their child after the parents have
separated or dissolved their marriage." By allowing Appellee the sole power to relocate the couple's seven children 1000 miles away from their mother simply to be close to now-doting grandparents whose role for the last seventeen years regarding the children has been tangential at best, the Lower Court obliterated Tex. Fam. Code §153.001(a)(l)(3). It should
be noted that Judge McCiendon did not just reversibly err with respect to Texas statutes and guiding principles in an unreasonable and arbitrary manner, Judge McCiendon did so while
throwing impartiality to the wind. While making a snap decision on residential custody during his interview of the teenagers he went on to characterize as emotionally unbalanced (R.R. p. 167) and "angry, very angry," Judge McCiendon regrettably apprises Mrs. Marsh's teenagers of this information in a decidedly unprofessional manner (R.R. p. 147):
"THE COURT: And, of course, y'all both indicated y'all love Florida, too. So I just want to know if y'all have a spare bedroom where I can come down there during the summer."
[*16]What place this whimsical, personal statement has in a Trial Court proceeding by a
Magistrate removing seven children from their mother of seventeen years based upon the statements of two rebellious teenagers is confounding. After Judge McCiendon is told by one daughter, SJ.M., "It's nice. You should" he closes with "I wish I could. Well, look, I'm going to rule for your dad to have custody of y'all." (R.R. p. 147). Does Judge McCiendon also long to see Disney World during his imaginary summer stay in his "spare bedroom" in Florida with Mrs. Marsh's children? Unfortunately however, this is the SECOND TIME in the Court
Record that Judge McCiendon has expressed his wishes for this. The first occurs in the earlier interview with Mrs. Marsh's son, S.W.M. (R.R. p. 144):
"THE COURT: Do you like living down there in Florida?
S.W.M.: Yes, sir.
THE COURT: Is the weather down there real nice?
[*17]judge, or any judge, pining for a "spare bedroom" in Florida with two rebellious teenagers
craving to run away from their legitimately disciplining mother as reasoning, impartial, and exemplifying judicial discretion. These capricious statements belie Appellee's assertions that the Lower Court did not act arbitrarily. What could be more arbitrary?
In capsule: after filing Chapter 7 bankruptcy, Appellee stole away with the couple's children in the night to his parents' home requiring Mrs. Marsh to file for divorce and force
him back. During the Lower Court proceedings, what were Appellee's good faith reasons for wanting to move the children 1000 miles away? Work opportunity? No. Better pay? No.
Children's education? He twice admitted that their homeschooling was "identical" to what their mother provided for them. Texas statutes and the guiding rules and decisions function
to encourage the parties to live close to one another to best facilitate the opportunity for the parents to "co-parent" with one another and to lessen the transportation burden on both parties. Appellee had discarded his debt and ditched his creditors via Title 11 of the United
States Bankruptcy Code. As part of the Divorce Settlement he signed over the couple's house and property to Mrs. Marsh, making her responsible for the $114,000 mortgage and property taxes, effectively papering over the last of his financial obligations. Appellee, debt free and still working the same online job workable from anywhere with an Internet connection, had absolutely no compelling, substantive reason for requesting the Lower
Court to grant him full residential custody of the children without regard to geographic restriction. For its part, the Lower Court based its decision on a brief exchange with the two
teenagers who had attacked Mrs. Marsh for disciplining them, two teenagers for whom the move to Florida was merely a Golden Ticket to run away from their mother. During their interview the Lower Court absurdly hears grandmother's spaghetti and nice weather as
among its reasons to strip Mrs. Marsh of her seven children. The fractious teenagers, Judge McCiendon tells Mrs. Marsh afterwards, "like the weather" (R.R. p. 158), they "like living with their grandfather and their grandmother" and that "I don't have any problem, you know, finding that the father should be the managing conservator and that you should have the minimum amount of visitation." If this is not arbitrariness, if this is not an unreasonable example of indiscretion in the eyes of Texas jurisprudence, then Appellant begs to know: what is?
[*18][*19]during their bitterly contested custody dispute that the couples' 17-year old daughter, at that point ensconced in Florida with her siblings, was "physically violent," "throwing up," and "spending the evenings crying" having "nightmares" at the thought of seeing their mother for Christmas (R.R. p. 84). Their 14-year old son, Appellee states, was also "crying a lot." In fact, according to Appellee, all seven children were exhibiting "similar symptoms before the visit" (R.R. p.85). We are asked to believe that over a half-dozen children aged toddler to teenager—up until that point raised and homeschooled all their lives by their mother—were "exhibiting" "physically violent" Exorcist-like symptoms before a visit with her
for the Christmas holidays. Ironically, or some might say comically, in spite of ail of Appellee's portrayal of children vomiting, crying, dreading, and suffering nightmares about seeing Mrs. Marsh, five of Appellee's seven children loaded up and spent that Christmas with their mother in Texas. The focus now will be on the two teenagers who chose not to participate—Mrs. Marsh's eldest daughter, A.M.M., and her eldest son, S.W.M.—and how
they were instructed by Appellee to openly disobey their mother, which they did to the extent of physically assaulting her, requiring Mrs. Marsh to discipline them, an event orchestrated by Appellee and used as manufactured, phony "evidence" of child abuse, This incident became the central gear turning all the other gears in Mrs. Marsh's divorce proceedings.
III. APPELLANT HAS STANDING FOR A DE NOVO REVIEW OF TRIAL COURT'S DECISION
WITH REGARD TO MANAGING CONSERVATORSHIP reached a legal conclusion based on uncontested flimsy and indeed confected "evidence"
[*20][READ: spurious allegations] of child abuse, the Appellate Court should review the Trial
Court's decision de novo.
[*21]As exhaustively detailed in Appellant's original brief, two of these teenagers were involved in a physical altercation with their mother engineered by Appellee who openly told them to disobey their mother and ignore her authority. Appellee pounced upon this altercation to make claims of child abuse, accusations of which two responding police officers deemed false after having inspected and interviewed all parties and the children.
Operating on advice from Florida, Appellee called police again the following day and the responding officer was more receptive and he arrested Mrs. Marsh. These charges were ultimately No Billed by a Grand Jury of San Jacinto County on May 19, 2017 and rejected by a unanimous jury on October 19th, 2017 after mere minutes of deliberation and after hearing a full day of testimony from the two teenagers and Appellee, who unraveled under cross-examination into a mess of conflicting testimony and—in the case of Appellee—did his
cause no service with an embittered, imperious and condescending demeanor. The proverbial stake in Appellee's heart came when he defiantly told the Court he did not intervene when his children became physical with his wife after she seized their computers and in fact had earlier instructed them to do so. Appellee, who at the time of the altercation
was staring at the very real possibility of Child Support orders for seven children and Maintenance to Appellant, also referred to the day Mrs. Marsh was arrested as "a very important day,"
It took a Court and Jury in Coldspring an entire day of hearing testimony from the teenagers and Appellee to decide on a misdemeanor, it took Judge Ernest McCiendon mere minutes with the same two teenagers to justify conservatorship of all of Appellant's children
with full knowledge they would be taken 1000 miles away and effectively terminate the parent-child relationship with Mrs. Marsh and her children, including the four youngest who
had absolutely nothing to do with the altercation involving her and her eldest son and daughter. Two rebellious teenagers' view of their mother fail to justify such a tragic outcome. When compared to the gravity of ending a parent-child relationship, reasons such as grandma's spaghetti and the "beautiful weather" in Florida are trivial. Far, far more insidious is the fact that Appellee, on his own admission, had alienated the teenagers from
[*22]Mrs. Marsh, instructing them to openly disregard her authority. This miscarriage of justice should not be papered over and explained away with arcane references to obscure cases such as those littered throughout Appellee's brief like so much glitter among the chicken feed; over a dozen citations including that classic of conservatorship determination, Butnaru v. Ford Motor Co. Every case before the Appellate is unique and it has been Appellant's stance in the spirit of this Appeal that this case requires no minute sifting through complicated facts or everything-and-the-kitchen-sink esoteric references to far-flung cases and decisions of a myriad of courts. The Appellate Court is not the sum of a handful of court cases, it is a living, working reality.
[*23]considered to be a crime or misdemeanor; therefore by applying the standard of review applicable to de novo, no reference to another court should be pronounced.
For the foregoing reasons, the judgment of the Trial Court should be reversed and the case remanded for de novo review of the Lower Court's decision. Appellant specifically and respectfully requests that Appellee, Robert Christopher Marsh, be immediately ordered to return with their seven children to Texas and be geographically restricted to the State and that Appellant Tasha Rose Marsh be named Managing Conservator of the four youngest children, A.R.M., H.S.M., J.S.A.M., and E.L.B.M.
Respectfully Submitted, BY: /s/ Tasha Rose Marsh
151 Country Wood Drive Shepherd, TX 77371 (281) 419-7100 [email protected]
Tasha Rose Marsh
Pro Se Appellant December 11, 2017
[*24]CERTIFICATE OF COMPLIANCE