Amy Hale v. Brian Hale

• Court: Court of Appeals of Texas
• Decided: October 17, 2024
• Docket: 02-23-00234-CV
• Status: Published

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00234-CV ___________________________

AMY HALE, Appellant

V.

BRIAN HALE, Appellee

On Appeal from the 233rd District Court Tarrant County, Texas Trial Court No. 233-674169-19

Before Birdwell, Womack, and Walker, JJ. Memorandum Opinion by Justice Womack MEMORANDUM OPINION

I. INTRODUCTION

Appellant Amy Hale (Wife) appeals from the trial court’s final divorce decree

that ended the marriage between Wife and Appellee Brian Hale (Husband). In eight

issues, Wife argues that (1) the trial court abused its discretion by striking her

pleadings without first imposing lesser sanctions, (2) the trial court abused its

discretion by denying her motions for continuance, (3) the trial court abused its

discretion by finding that Wife had made a false child abuse report against Husband

and by assessing a penalty when insufficient evidence existed to support such a

finding, (4) the trial court abused its discretion and denied her due process by not

allowing her attorney to ask leading questions of hostile witnesses and by allowing

Husband’s attorney to ask leading questions of non-hostile witnesses, (5) the trial

court abused its discretion by denying her motion to recuse, (6) the trial court abused

its discretion by allowing an intervening party to reopen evidence, (7) the trial court

abused its discretion by not entering any findings “as to why the possession order

deviates from the Standard Possession Order,” and (8) the trial court abused its

discretion by granting the divorce because the record lacks sufficient evidence

regarding Husband’s domicile and residency. We will affirm.

2 II. BACKGROUND1

Husband and Wife were married in August 2013. In February 2017, they had a

daughter together, R.H.2 On December 19, 2019, Husband filed a petition for

divorce. Wife answered and filed a counterpetition for divorce. In her

counterpetition, Wife alleged that “[t]here is a history or pattern of child abuse

committed by [Husband],” and she requested that the trial court deny Husband access

to R.H. During approximately seven different investigations from 2019 through

2022, Child Protective Services (CPS) investigated Wife’s allegations that Husband

had sexually and physically abused R.H. During each of its investigations, CPS “ruled

out” the allegations of abuse.

Wife was initially represented by counsel in this case. In November 2021,

Wife’s counsel and co-counsel filed and were granted motions to withdraw as her

respective counsel and co-counsel. Wife’s former attorney, Erika Patino, later filed a

petition in intervention. In her petition in intervention, Patino alleged that Wife had

unpaid attorney’s fees.

The case was set for trial on January 23, 2023. A pretrial conference, in which

Wife appeared pro se, took place on January 9, 2023. Wife obtained counsel

1 There is little to no overlap between Wife’s eight issues. Thus, in an attempt to add some brevity to this lengthy opinion, we will save much of our discussion of the facts for our analysis of Wife’s respective issues.

To protect the identity of the child, we use initials to refer to her. See Tex. 2

Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).

3 approximately one week before the trial began. The trial took place over five days

beginning on January 23, 2023. Most of the trial was a jury trial, as the jury was asked

to appoint the managing conservator of R.H. At the conclusion of the jury portion of

the trial, the jury returned a verdict naming Father as the sole managing conservator

of R.H. A nonjury portion of the trial then commenced concerning additional issues.

At the conclusion of both portions of the trial, the trial court signed a final

divorce decree. In the decree, the trial court found that Wife had made a false report

of child abuse against Husband and assessed a $100 civil penalty against Wife. Wife

requested, and the trial court issued, findings of fact and conclusions of law. Wife

appeals from the final divorce decree.

III. DISCUSSION

A. Wife’s Complaint That the Trial Court Imposed a Death-Penalty Sanction

In her first issue, Wife argues that the trial court abused its discretion by

striking her pleadings without first imposing lesser sanctions—what Wife contends

amounted to a death-penalty sanction. However, Wife does not point us to any order

in which the trial court actually struck her pleadings, and we have found none in our

review of the record. Rather, Wife’s complaint seems to be focused on the trial

court’s refusal to admit at trial certain exhibits that had not been turned over to

4 Husband in discovery—namely, videos that were purportedly secretly recorded by

Husband showing “the underside of his coworker[’]s skirt” (the Upskirt Videos).3

1. Standard of Review and Applicable Law

We review a trial court’s decision to exclude evidence for an abuse of

discretion. Tex. Health Harris Methodist Hosp. Fort Worth v. Featherly, 648 S.W.3d 556,

576 (Tex. App.—Fort Worth 2022, pet. denied). We likewise review a trial court’s

discovery sanctions—even death-penalty sanctions—for an abuse of discretion.

Martin v. Bayouth, No. 02-19-00008-CV, 2020 WL 3730773, at *3 (Tex. App.—Fort

Worth July 2, 2020, pet. denied) (mem. op.).

Whether the exclusion of evidence constitutes a death-penalty sanction is

determined on a case-by-case basis. In re Namdarkhan, No. 05-16-01410-CV, 2017

WL 1075640, at *2 (Tex. App.—Dallas Mar. 21, 2017, orig. proceeding) (mem. op.);

Kirschberg v. Comm’n for Law. Discipline, No. 04-04-00008-CV, 2004 WL 2289618, at *3

(Tex. App.—San Antonio Oct. 13, 2004, pet. denied) (mem. op.). A death-penalty

sanction is any sanction that adjudicates a claim and precludes the presentation of the

merits of a case. Namdarkhan, 2017 WL 1075640, at *2; Kirschberg, 2004 WL 2289618,

at *3. Where the exclusion of evidence is only an inconvenience that impairs the

3 To the extent that Wife is complaining about the trial court’s refusal to admit evidence other than the Upskirt Videos, we hold that said complaint is inadequately briefed because it does not identify the other evidence or explain how the exclusion of said evidence led to an improper judgment. See Tex. R. App. P. 38.1(i) (requiring a brief to contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record”).

5 presentation of a party’s case but does not preclude a trial on the merits, the exclusion

of evidence is not a death-penalty sanction. Namdarkhan, 2017 WL 1075640, at *2;

Kirschberg, 2004 WL 2289618, at *3.

Pursuant to Texas Rule of Civil Procedure 193.6, a party who fails to timely

make, amend, or supplement a discovery response may not introduce in evidence the

material or information that was not timely disclosed unless the trial court finds that

(1) good cause exists for the failure to timely make, amend, or supplement the

response or (2) the failure will not unfairly surprise or prejudice the other parties.

Tex. R. Civ. P. 193.6(a). The burden of establishing good cause or the lack of unfair

surprise or prejudice is on the party seeking to introduce the evidence. Tex. R. Civ. P.

193.6(b). “The rule is mandatory, and the penalty—exclusion of evidence—is

automatic, absent a showing of good cause, lack of unfair surprise, or lack of unfair

prejudice.” Santana v. Santana, No. 02-15-00140-CV, 2016 WL 278781, at *1

(Tex. App.—Fort Worth Jan. 21, 2016, no pet.) (mem. op.). The exclusion of

evidence under Rule 193.6(a) is a matter of admissibility rather than a sanction.4

In re T.K.D-H., 439 S.W.3d 473, 479 (Tex. App.—San Antonio 2014, no pet.);

4 In contrast to Rule 193.6(a), Rule 215.2(b) gives a trial court discretion to sanction a party by prohibiting the party from introducing a matter into evidence when the party has failed to comply with discovery requests. See Tex. R. Civ. P. 215.2(b); see also Carpenter v. Carpenter, No. 02-10-00243-CV, 2011 WL 5118802, at *8 n.45 (Tex. App.—Fort Worth Oct. 27, 2011, pet. denied) (mem. op.) (explaining differences between Rules 193.6 and 215.2).

6 In re J.A.M., Jr., No. 04-11-00165-CV, 2012 WL 1648215, at *5 (Tex. App.—San

Antonio May 9, 2012, pet. denied) (mem. op.).

2. Analysis

During trial, Wife’s counsel told the trial court, “I don’t think any of our

exhibits were turned over prior to the end of the discovery period.”5 Wife’s counsel

asked for leave for the exhibits to be admitted—including the Upskirt Videos—noting

that the admission of the exhibits would not unfairly prejudice either side. The trial

court stated, “The Court will deny any exhibit not turned over in discovery, and the

offering of such exhibits would be prejudicial to this matter, thereby the Court will

instruct [Wife] not to offer exhibits that were not turned over in discovery.” Given

that context, we hold that the trial court’s exclusion of the Upskirt Videos was not a

death-penalty sanction because it was not a sanction at all; rather, the exclusion was

based on the mandatory requirements of Rule 193.6(a).6 See T.K.D-H., 439 S.W.3d at

5 A prior order in the case established that all discovery was to be completed on or before June 7, 2022. 6 In her brief, Wife states that the record does not indicate when she was served with any discovery request pertaining to the Upskirt Videos, when said discovery request was due, or whether an extension was granted with respect to her discovery response. Wife, however, did not make those arguments to the trial court when it excluded the Upskirt Videos, and thus, we cannot consider them here. See Nat’l OilWell Varco, LP v. Sanchez, No. 08-23-00096-CV, 2024 WL 519201, at *5 (Tex. App.—El Paso Feb. 9, 2024, no pet.) (“[The appellant] argues that it was under no duty to disclose the video because it was not responsive to any discovery request, and [the appellee] failed to cite to any discovery request in his motion to exclude. But this argument was never raised below and cannot be considered here.”) (citation

7 479 (holding that exclusion of evidence under Rule 193.6(a) is a matter of admissibility

rather than a sanction for discovery abuse under Rule 215.2); Carpenter, 2011 WL

5118802, at *8 n.45 (“Rule 193.6(a)’s exclusion of evidence . . . is mandatory.”).

Moreover, even if the trial court’s exclusion of the Upskirt Videos could be

construed as a sanction, it was not a death-penalty sanction. To that end, the

exclusion of the Upskirt Videos did not preclude Wife from presenting the merits of

her case; indeed, Wife called seven witnesses during the jury portion of the trial, she

called three witnesses during the nonjury portion of the trial, and her attorney

cross-examined numerous witnesses during both portions of the trial.7

See Namdarkhan, 2017 WL 1075640, at *2 (“Where the exclusion of [evidence] is only

an inconvenience that impairs the presentation of a party’s case but does not preclude

a trial on the merits, the exclusion of evidence is not a death[-]penalty sanction.”);

Kirschberg, 2004 WL 2289618, at *3 (holding that the appellant was not prevented from

presenting the merits of his case where he testified at trial and cross-examined the

appellee’s witnesses).

omitted). Moreover, in her brief, Wife acknowledges, “In the present case, [Wife], or her prior attorneys, did not respond to discovery.” 7 Wife does not explain how the exclusion of the Upskirt Videos precluded her from presenting the merits of her case. See Kirschberg, 2004 WL 2289618, at *3 (“On appeal, appellant does not contend he would have offered any of the other excluded witnesses, nor does he explain how the exclusion of any witness prevented him from presenting the merits of his case. We conclude the trial court’s sanction was not a death[-]penalty sanction.”).

8 Wife points to Young v. Young, No. 03-14-00720-CV, 2016 WL 7339117

(Tex. App.—Austin Dec. 15, 2016, no pet.) (mem. op.), to support her argument that

the trial court’s exclusion of the Upskirt Videos constituted a death-penalty sanction.

In Young, the appellant did not provide complete responses to discovery. Id. at *1.

The appellee filed a motion to compel discovery and sought sanctions. Id. The trial

court ordered the appellant to serve the appellee with adequate discovery responses,

and it sanctioned the appellant by prohibiting him from calling witnesses or

introducing exhibits at trial. Id. at *2. On appeal, the Austin Court of Appeals held

that the trial court’s sanction constituted a death-penalty sanction and that the trial

court had abused its discretion by imposing it. Id. at *4–6. We find Young

distinguishable because it considered discovery sanctions under Rule 215.2—

sanctions that were levied by the trial court in advance of trial—while, here, the trial

court’s exclusion of evidence involved the mandatory application of Rule 193.6(a) to

exhibits that Wife was attempting to introduce at trial. See id. at *3. Moreover, in

Young, the trial court prohibited the appellant from calling any witnesses or

introducing any documents whatsoever; here, however, Wife was allowed to call

witnesses and the trial court’s ruling excluding her exhibits simply excluded the

exhibits that had not been turned over in discovery. See id. at *5.

We also note that Wife did not make an offer of proof with respect to the

Upskirt Videos; therefore, those videos do not appear in the appellate record. Thus,

Wife’s complaints relating to the trial court’s exclusion of the Upskirt Videos have not

9 been preserved for appellate review. See Jimison v. MAEDC-Hulen Bend Senior Cmty.,

L.P., No. 02-23-00206-CV, 2024 WL 3282544, at *7 (Tex. App.—Fort Worth

July 3, 2024, no pet. h.) (mem. op.) (“[The appellant] did not make an offer of proof

with respect to Defendant’s Exhibits 9 and 32–34, and thus, those exhibits do not

appear in the appellate record. Thus, [the appellant’s] complaints relating to the trial

court’s exclusion of those exhibits have not been preserved for appellate review.”

(footnote omitted)); Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490, 494

(Tex. App.—Fort Worth 1999, pet. denied) (“An appellate court cannot decide

whether evidence was improperly excluded unless the evidence is included in the

record for review.”).

We overrule Wife’s first issue.

B. Wife’s Motions for Continuance

In her second issue, Wife argues that the trial court abused its discretion by

denying her motions for continuance.

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. D.R. Horton-Tex., Ltd. v. Savannah Props. Assocs., L.P., 416 S.W.3d 217, 222

(Tex. App.—Fort Worth 2013, no pet.); see BMC Software Belg., N.V. v. Marchand,

83 S.W.3d 789, 800 (Tex. 2002). A trial court abuses its discretion if it acts without

reference to any guiding rules or principles—that is, if its act is arbitrary or

10 unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,

134 S.W.3d 835, 838–39 (Tex. 2004).

A motion for continuance must be in writing and state the specific facts

supporting the motion. Hardwick v. Hardwick, No. 02-15-00325-CV,

2016 WL 5442772, at *1 (Tex. App.—Fort Worth Sept. 29, 2016, no pet.) (mem. op.);

Serrano v. Ryan’s Crossing Apartments, 241 S.W.3d 560, 564 (Tex. App.—El Paso 2007,

pet. denied). A trial court generally does not abuse its discretion by denying an oral

motion for continuance. In re J.P.-L, 592 S.W.3d 559, 575 (Tex. App.—Fort Worth

2019, pet. denied). Texas Rule of Civil Procedure 251 further requires that a motion

for continuance be verified or supported by an affidavit. Tex. R. Civ. P. 251; see

Hardwick, 2016 WL 5442772, at *1. If a motion for continuance is not verified or

supported by an affidavit, we will presume that the trial court did not abuse its

discretion by denying the motion. In re Guardianship of Jones, No. 02-19-00187-CV,

2022 WL 3458736, at *12 (Tex. App.—Fort Worth Aug. 18, 2022, pet. denied)

(mem. op.); In re G.Z., No. 02-21-00122-CV, 2021 WL 3796049, at *7 (Tex. App.—

Fort Worth Aug. 26, 2021, no pet.) (mem. op.).

11 2. Analysis

On January 19, 2023—four days before trial—Wife filed an unverified motion

for continuance.8 The record does not contain a written order on that motion. On

the morning of trial, Wife’s counsel orally moved for the trial court to continue the

trial. The trial court denied that request. To the extent that the trial court’s denial of

Wife’s oral motion for continuance could be construed as a denial of her written

motion for continuance, we hold that the trial court did not abuse its discretion by

denying the written motion because it was not verified or supported by an affidavit.

See Jones, 2022 WL 3458736, at *12 (“Here, [the appellant’s] motion for continuance

was not verified or supported by affidavit. Accordingly, we presume that the probate

court did not abuse its discretion by denying it.”); G.Z., 2021 WL 3796049, at *7

(“Thus, because [the appellant’s] motion for continuance was not verified or

supported by affidavit, we cannot say that the trial court abused its discretion by

denying it.”). Similarly, the trial court did not abuse its discretion by denying the oral

motion for continuance urged by Wife’s counsel because it was not in writing, nor

was it verified or supported by affidavit. See Poonjani v. Kamaluddin,

No. 02-14-00193-CV, 2015 WL 3523102, at *2 (Tex. App.—Fort Worth June 4, 2015,

no pet.) (mem. op.) (“[W]e have consistently held that a trial court does not abuse its

8 That motion indicated that Wife had recently hired counsel to represent her and that her counsel had a conflict with the trial date. Wife’s counsel later appeared at trial.

12 discretion by denying an oral, unsworn motion for continuance.”); Greene v. Greene,

No. 2-03-134-CV, 2004 WL 1415983, at *2 (Tex. App.—Fort Worth June 24, 2004,

pet. denied) (mem. op.) (holding that trial court did not abuse its discretion by

denying wife’s oral motion for continuance when motion was not made in writing and

was not verified).

In her brief, Wife also complains that the trial court abused its discretion by not

granting an unverified motion for continuance that she had filed on October 13, 2022.

In that motion, Wife requested a continuance of an October 17, 2022 hearing on “the

Amicus Attorney’s Motion for Additional Amicus Attorney Fees.” The trial court

denied Wife’s motion at the October 17, 2022 hearing. Because Wife’s October 13,

2022 motion for continuance was not verified or supported by affidavit, the trial court

did not abuse its discretion by denying it. See Jones, 2022 WL 3458736, at *12;

G.Z., 2021 WL 3796049, at *7.

We overrule Wife’s second issue.

C. Wife’s Complaint Regarding the Finding of a False Child Abuse Report

In her third issue, Wife argues that the trial court abused its discretion by

finding that Wife made a false child abuse report. Wife argues that there was

insufficient evidence to support that finding.

13 1. Standard of Review and Applicable Law

Texas Family Code Section 153.013 provides that if a party to a pending suit

affecting the parent–child relationship makes a report alleging child abuse by another

party to the suit that the reporting party knows lacks a factual foundation, the trial

court shall deem the report to be a knowingly false report. Tex. Fam. Code Ann.

§ 153.013(a). If the trial court makes such a finding, the court shall impose a civil

penalty not to exceed $500. Id. § 153.013(c).

A trial court’s findings of fact have the same force and dignity as a jury’s

answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991). As with jury findings, a trial court’s fact-findings on disputed issues are not

conclusive, and when the appellate record contains a reporter’s record, an appellant

may challenge those findings for evidentiary sufficiency. Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994). We review the sufficiency of the evidence

supporting challenged findings using the same standards that we apply to jury

findings. Id.

We may sustain a legal-sufficiency challenge—that is, a no-evidence

challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of

law or of evidence bar the court from giving weight to the only evidence offered to

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere

scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact.

Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally

14 sufficient evidence supports the challenged finding, we must consider evidence

favorable to the finding if a reasonable factfinder could, and we must disregard

contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete

Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802,

827 (Tex. 2005). We indulge “every reasonable inference deducible from the

evidence” in support of the challenged finding. Gunn, 554 S.W.3d at 658 (quoting

Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)).

When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing all

the pertinent record evidence, we determine that the credible evidence supporting the

finding is so weak, or so contrary to the overwhelming weight of all the evidence, that

the finding should be set aside and a new trial ordered. Pool v. Ford Motor Co.,

715 S.W.2d 629, 635 (Tex. 1986) (op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176

(Tex. 1986).

The factfinder is the sole judge of the candor, demeanor, and credibility of the

witnesses and may decline to accept as true the testimony of an interested witness,

even if uncontradicted. Salaymeh v. Plaza Centro, LLC, 258 S.W.3d 236, 240

(Tex. App.—Houston [1st Dist.] 2008, no pet.). The deference given to the factfinder

on issues of credibility and demeanor in family-law matters is particularly great due to

the “fact-intensive nature” of family-law matters. In re Marriage of Featherston,

675 S.W.3d 330, 334 (Tex. App.—Amarillo 2023, no pet.); see In re De La Pena,

15 999 S.W.2d 521, 529 (Tex. App.—El Paso 1999, no pet.) (“Appellate courts routinely

defer to the fact[]finder at trial concerning matters of credibility and demeanor, but

perhaps in no other type of litigation is it more critical [than family-law matters].”).

In the final divorce decree, the trial court stated, “The Court finds that credible

evidence has been presented that [Wife] has filed a false report of child abuse as

defined by Texas Family Code §[]153.013 against [Husband]. [Wife] is assessed a civil

penalty in the amount of one hundred dollars ($100.00).” In the trial court’s findings

of fact and conclusions of law, the trial court found that Wife “has filed a false report

of child abuse as defined by Texas Family Code §[]153.013 against [Husband] and is

assessed a civil penalty in the amount of $100.00.”

In her brief, Wife complains that the trial court’s findings of fact and

conclusions of law lack specificity because they do not provide “any supporting details

or facts.” If Wife desired to address that alleged lack of specificity, she could have

requested that the trial court make additional or amended findings and conclusions.

See Tex. R. Civ. P. 298 (“After the court sends original findings of fact and

conclusions of law, any party may file with the clerk of the court a request for

specified additional or amended findings or conclusions.”). Because she did not make

such a request, Wife has waived any complaint relating to the alleged lack of

specificity in the trial court’s finding. See Ahrenhold v. Sanchez, 229 S.W.3d 541, 543

(Tex. App.—Dallas 2007, no pet.) (“[A]lthough she timely requested findings of fact

16 and gave notice of past due findings, [the appellant] never submitted to the trial court

any more specific additional or amended findings. Accordingly, she has waived any

complaint with respect to the adequacy of the trial court’s findings of fact and

conclusions of law.”); Goodfellow v. Goodfellow, No. 03-01-00633-CV,

2002 WL 31769028, at *7 (Tex. App.—Austin Dec. 12, 2002, no pet.) (not designated

for publication) (holding that the appellant “cannot be heard to complain on appeal

that the findings and conclusions are incomplete” because he did not make a timely

request for additional findings and conclusions).

In an argument spanning two paragraphs, Wife next contends that “the entire

record itself is legally and factually insufficient to support a finding that [she] made

false child abuse accusations.” We disagree. Here, the record reflects the following:

• Husband testified that he had been part of seven different CPS investigations concerning his alleged sexual and physical abuse of R.H.;

• Husband testified that all CPS investigations concerning his alleged sexual and physical abuse of R.H. had been “ruled out”;

• Wife acknowledged that all CPS investigations had been “ruled out”;

• Wife admitted to calling CPS on Husband;

• A former CPS investigator testified that CPS had investigated the allegations of abuse approximately “five” times and had “ruled out” the allegations;

• The former CPS investigator stated that if she had thought there was a reason to believe that R.H. had been abused, CPS would not have “ruled out” the allegations;

17 • The former investigator stated that the investigations of abuse took place in 2019, 2020, and 2022;

• Husband testified that he had never inappropriately touched R.H. and that he had never touched R.H. in a sexual manner;

• Wife expressed her concern that Husband was abusing R.H. to a counselor that was meeting with Wife, Husband, and R.H.;

• The counselor testified that Wife “expresses a confirmation bias” regarding Husband having sexually and physically abused R.H.;

• The counselor stated that Wife “would talk to [her] about bruises and scratches and things that were normal for kids [R.H.’s] age to experience, but [that] there was this overinterpretation of it” from Wife;

• A psychologist who had interviewed Wife and Husband testified that Wife presented with “some emotional distress symptoms” and that “she had a distinct tendency to try to present herself in an unrealistically positive light”; and

• The psychologist diagnosed Wife “with major depressive disorder.”

Viewing the evidence in the light most favorable to the trial court’s finding, we

hold that a factfinder could have reasonably formed a firm conviction or belief that

Wife made a knowingly false report alleging Husband’s abuse of R.H., and we

therefore hold that the evidence is legally sufficient to support the trial court’s finding.

See Tex. Fam. Code Ann. § 153.013(a). In reaching that conclusion, we are

particularly mindful that the factfinder is the sole judge of the candor, demeanor, and

credibility of the witnesses, and that the factfinder was in the best position to judge

Wife’s intent when reporting Husband’s alleged abuse of R.H. See Salaymeh,

258 S.W.3d at 240; Featherston, 675 S.W.3d at 334; see also Spoljaric v. Percival Tours, Inc.,

18 708 S.W.2d 432, 434 (Tex. 1986) (“Intent is a fact question uniquely within the realm

of the trier of fact because it so depends upon the credibility of the witnesses and the

weight to be given to their testimony.”). Based on our exacting review of the entire

record and giving due deference to the factfinder’s findings, we likewise conclude that

the evidence is factually sufficient to support the trial court’s finding. See Pool,

715 S.W.2d at 635; Cain, 709 S.W.2d at 176.

We overrule Wife’s third issue.

D. Wife’s Complaint Regarding Leading Questions

In her fourth issue, Wife argues that the trial court abused its discretion and

denied her due process by not allowing her attorney to ask leading questions of hostile

witnesses and by allowing Husband’s attorney to ask leading questions of non-hostile

witnesses. Wife also contends that the cumulative effect of those alleged errors

prevented her from putting on a meaningful case.

“A leading question is one which instructs the witness how to answer or puts

words into the witness’[s] mouth to be echoed back.” GAB Bus. Servs., Inc. v. Moore,

829 S.W.2d 345, 351 (Tex. App.—Texarkana 1992, no writ). Leading questions

should not be used on direct examination except as is necessary to develop a witness’s

testimony. Tex. R. Evid. 611(c). A trial court should ordinarily allow leading

questions on cross-examination and when a party calls a hostile witness, an adverse

party, or a witness identified with an adverse party. Id. “The purpose of the

19 qualification ‘ordinarily’ is to furnish a basis for denying the use of leading questions

when the cross-examination is of a friendly witness, for example, the

cross-examination of a party by his own counsel after the party was called by the

opponent.” GAB Bus. Servs., Inc., 829 S.W.2d at 351.

We utilize an abuse-of-discretion standard to review a trial court’s decision to

allow trial counsel to ask leading questions. See Ramin’ Corp. v. Willis,

No. 09-14-00168-CV, 2015 WL 6121602, at *16 (Tex. App.—Beaumont Oct. 15,

2015, no pet.) (mem. op.); Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 568

(Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d 35 (Tex. 1998). To obtain

reversal, an appellant must show that (1) the trial court abused its discretion by

allowing trial counsel to ask leading questions, and (2) the abuse of discretion

probably caused the rendition of an improper judgment. See Owens-Corning Fiberglas

Corp., 916 S.W.2d at 568; see also Tex. R. App. P. 44.1(a).

In her brief, Wife identifies only two adverse rulings made by the trial court

with respect to an attorney’s leading of a witness.9 Specifically, she points to two

objections that her attorney made at trial that were overruled by the trial court. She

Wife also references one instance in which Husband’s attorney objected on the 9

grounds that Wife’s attorney was leading a witness. The trial court overruled that objection, thus ruling in favor of Wife in that specific instance.

20 contends that her attorney could have made other leading objections at trial—or

could have asked additional questions of witnesses—but that he did not do so.

To preserve a complaint for appellate review, a party must present to the trial

court a timely request, objection, or motion that states the specific grounds for the

desired ruling, if not apparent from the request’s, objection’s, or motion’s context.

Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). If a party fails to do this,

error is not preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

The objecting party must also get a ruling—either express or implied—from the trial

court. Tex. R. App. P. 33.1(a)(2)(A), (b); see Lenz v. Lenz, 79 S.W.3d 10, 13

(Tex. 2002).

Because Wife only raised two objections to the trial court regarding this issue,

she has not preserved any complaint apart from those two objections. See MTNV,

Inc. v. ALST Realty, LLC, No. 14-18-00170-CV, 2019 WL 6317370, at *6

(Tex. App.—Houston [14th Dist.] Nov. 26, 2019, no pet.) (mem. op.) (“[The

appellant] failed to object to [the witness’s] testimony at trial; thus, [the appellant]

failed to preserve error and cannot complain about this testimony for the first time on

appeal.”); Zinda v. McCann St., Ltd., 178 S.W.3d 883, 894 (Tex. App.—Texarkana 2005,

pet. denied) (“[A] party must object at trial when the testimony is offered in order to

preserve error for appellate review.”).

21 We now turn to the two objections raised by Wife at trial pertaining to this

issue. First, Wife complains about the following exchange that occurred during

Husband’s attorney’s cross-examination10 of Husband:

Q. And you actually have heard all the testimony, both from experts, fact witnesses—we heard from the Tarrant County Medical Examiner, right?

[Wife’s counsel]: I’m going to object to leading.

[The Court]: Counsel, she’s on cross. She can lead.

Q. We actually heard from the Tarrant County Medical Examiner forensic—senior forensic biologist during this case, right?

A. Correct.

Second, Wife complains about the following exchange that occurred when the

amicus attorney for R.H. was asking questions on cross-examination of a community

supervisor with Tarrant County Family Court Services:

Q. And [Wife] repeats herself to—there are instances where [Wife] repeats herself to [R.H.]?

A. All the time.

Q. And after a series of repetitions, [R.H.] responds accordingly, complying with the statement of—that’s being repeated?

A. Sometimes.

10 Wife had called Husband as a witness during her case-in-chief. Following that direct examination, Husband’s counsel then had the opportunity to cross-examine Husband.

22 Q. And like when she was—you had talked about that she was fine, feeling-wise—

A. Uh-uh.

Q. —and continued being told, You’re not feeling well, you’re not feeling well, you’re not feeling well—

[Wife’s counsel]: Judge, I object to leading a nonhostile witness.

[The Court]: She’s on cross, counsel. She leads. Overruled.

Q. Being told this repeatedly, that [R.H.’s] position changed?

A. Yes.

Q. Her demeanor changed, her physical characteristics changed from healthy, happy, running around, to now subdued?

Assuming without deciding that the trial court abused its discretion by

overruling Wife’s objections in these two instances, we turn to harm.

See Baker v. Ferrier Builders, Inc., No. 02-23-00403-CV, 2024 WL 3896832, at *5

(Tex. App.—Fort Worth Aug. 22, 2024, no pet.) (mem. op.) (assuming trial court

abused discretion but holding error not harmful). To obtain reversal of a judgment

based on an error in the trial court, the appellant must show that the error occurred

and that it probably caused the rendition of an improper judgment or probably

prevented the appellant from properly presenting the case to this court on appeal.

Tex. R. App. P. 44.1(a); Romero v. KPH Consolidation, Inc., 166 S.W.3d 212, 225

(Tex. 2005).

23 As to Wife’s first objection, the information elicited from the attorney’s

question simply reflected that the jury had heard from a senior forensic biologist

earlier in the trial. No harm can be shown from that answer because the senior

forensic biologist did testify earlier in the trial, a fact that was readily apparent to the

jury who had heard the testimony. See Owens-Corning Fiberglas Corp., 916 S.W.2d at 568

(“We need not address whether the trial court abused its discretion in allowing the

plaintiffs to ask [the witness] leading questions because [the appellant] cannot

demonstrate harm. The testimony elicited from [the witness] is cumulative of other,

properly admitted evidence. Thus, any error would be harmless.”); see also Guardianship

of N.P., No. 02-19-00233-CV, 2020 WL 7252322, at *12 (Tex. App.—Fort Worth

Dec. 10, 2020, pet. denied) (mem. op.) (“[I]f the facts recited in a leading question are

undisputed, the question is proper.”).

As to Wife’s second objection, the information elicited from the amicus

attorney’s question reflected that R.H. would change her answers to questions based

on what Wife was telling her. But that same witness gave other testimony indicating

that R.H. would often repeat what Wife had told her and that R.H.’s demeanor would

change based on what Wife was telling her. Thus, any error in overruling Wife’s

objection was harmless. See Owens-Corning Fiberglas Corp., 916 S.W.2d at 568; GAB Bus.

Servs., Inc., 829 S.W.2d at 351 (“[E]ven if it had been error, it would not have been

harmful. The questions inquired whether [the appellant’s employee] had access to

24 certain medical records in handling [the appellee’s] claim. [The appellee] had already

shown . . . that [the appellant] had these records in its files.”).

Finally, we reject Wife’s argument that the cumulative effect of those alleged

errors prevented her from putting on a meaningful case. Even assuming that the trial

court erred by overruling Wife’s two objections, the alleged errors were harmless.

Thus, we cannot say that the aggregate and cumulative effect of the errors probably

caused the rendition of an improper judgment. See Kansas City S. Ry. Co. v. Chaffin,

658 S.W.2d 186, 191 (Tex. App.—Texarkana 1983, writ ref’d n.r.e.) (overruling

appellant’s cumulative-error complaint because appellate court “found no error or

only harmless error in [the appellant’s] eight previous points of error”); see also

Linney v. State, 413 S.W.3d 766, 767 (Tex. Crim. App. 2013) (Cochran, J., concurring in

refusal of pet.) (explaining doctrine of cumulative error and stating that “[a] string of

harmless errors does not arithmetically create reversible, cumulative error”).

We overrule Wife’s fourth issue.

E. Wife’s Motion to Recuse

In her fifth issue, Wife argues that the trial court abused its discretion by

denying her motion to recuse.

We review an order denying a motion to recuse for an abuse of discretion.

In re G.S., No. 02-19-00390-CV, 2020 WL 1294925, at *2 (Tex. App.—Fort Worth

Mar. 19, 2020, pet. denied) (mem. op.). Pursuant to Rule 18a of the Texas Rules of

25 Civil Procedure, a party seeking recusal must file a verified motion stating with

particularity why the judge should not hear the case. Tex. R. Civ. P. 18a(a). To be

timely, a motion to recuse must be filed “as soon as practicable after the movant

knows of the ground stated in the motion.” Tex. R. Civ. P. 18a(b)(1)(A). When a

party fails to comply with these mandatory requirements, she waives the right to

complain of the trial judge’s refusal to recuse himself. Franklin v. City of Fort Worth,

No. 02-12-00453-CV, 2014 WL 3696092, at *4 (Tex. App.—Fort Worth July 24,

2014, no pet.) (mem. op.); In re Guardianship of Jordan, 348 S.W.3d 401, 415

(Tex. App.—Beaumont 2011, no pet.).

To carry the burden of proof demonstrating that recusal is warranted, a movant

must show that such a degree of bias or prejudice exists that the movant was deprived

of a fair trial. Goesling v. Am. Airlines, Inc., No. 02-22-00338-CV, 2023 WL 7037650, at

*16 (Tex. App.—Fort Worth Oct. 26, 2023, pet. denied) (mem. op.). The burden on

a movant seeking a judge’s recusal presents a “high threshold.” Id. (quoting

In re B.M.B., No. 05-22-01322-CV, 2023 WL 3836429, at *5 (Tex. App.—Dallas June

6, 2023, pet. denied) (mem. op.)). Thus, the proof offered to establish a bias or

prejudice warranting recusal must rise above mere conclusory statements, conjecture,

or assertions of bias. Id.

On January 4, 2023, Wife filed an unverified motion to recuse the trial judge

and an associate judge. In that motion, Wife complained about the trial judge’s and

26 associate judge’s respective conduct during certain hearings in 2020, 2021, and 2022.

The trial judge and the associate judge referred Wife’s motion to the Presiding Judge

of the Eighth Administrative Judicial Region, who assigned himself to hear the

motion. Following a hearing, the Presiding Judge of the Eighth Administrative

Judicial Region—acting as the trial court—denied Wife’s motion.

Because Wife’s motion to recuse was not verified, she has waived her

complaint on appeal regarding the motion. See Norton v. Phan, No. 03-22-00002-CV,

2023 WL 4769530, at *7 (Tex. App.—Austin July 27, 2023, no pet.) (mem. op.) (“[The

appellant’s] motion [to recuse] was not verified. Because [the appellant’s] motion did

not satisfy the mandatory recusal procedures, his issue regarding the judge’s failure to

recuse himself is waived.”); Franklin, 2014 WL 3696092, at *4 (“Even though [the

appellant] raised the issue of the trial judge’s bias [below], he failed to comply with the

mandatory requirements set forth in [R]ule 18a. Therefore, [the appellant] has waived

his right to complain on appeal that the judge should have recused herself because she

was biased.” (citation omitted)); see also Jackson v. Puckett, No. 01-22-00369-CV,

2023 WL 1786427, at *2 (Tex. App.—Houston [1st Dist.] Feb. 7, 2023, pet. denied)

(mem. op.) (“Because an unsworn motion to recuse does not comply with the

procedural requirements of Rule 18a and is defective on its face, it was not an abuse

of discretion to deny the motion.”).

Wife argues that we should ignore the requirements of Rule 18a—what she

refers to as a “technical rule”—because she was pro se when she filed her motion to

27 recuse. We disagree. Pro se litigants are held to the same standards as licensed

attorneys, and we require pro se litigants to comply with applicable laws and rules of

procedure. Anderson v. Hiley Cars Hurst, LP, No. 02-23-00091-CV, 2024 WL 3195094,

at *2 (Tex. App.—Fort Worth June 27, 2024, no pet.) (mem. op.); Bailey v. Michaelis,

No. 02-22-00024-CV, 2023 WL 2325503, at *1 (Tex. App.—Fort Worth Mar. 2, 2023,

no pet.) (mem. op.). To hold otherwise would give pro se litigants an unfair

advantage over litigants who are represented by counsel.11 Ex parte D.K.,

No. 02-22-00020-CV, 2022 WL 15075939, at *2 (Tex. App.—Fort Worth Oct. 27,

2022, pet. denied) (mem. op.); In re P.S., 505 S.W.3d 106, 111(Tex. App.—Fort Worth

2016, no pet.).

Even if we put aside the problems posed by the fact that Wife did not verify

her motion to recuse, we would still hold that the trial court did not abuse its

discretion by denying the motion. In her brief, Wife points to two specific hearings to

11 Wife cites Wheeler v. Green, 157 S.W.3d 439 (Tex. 2005) in support of her argument that we should ignore the strictures of Rule 18a because she was pro se when she filed her motion to recuse. We find Wheeler distinguishable. Wheeler did not involve a motion to recuse; rather, Wheeler involved deemed admissions that a pro se plaintiff had failed to timely answer. Id. at 442–44. In Wheeler, the Texas Supreme Court held that the trial court had abused its discretion by not allowing the pro se litigant to withdraw the deemed admissions after she had demonstrated that her failure was not intentional or the result of conscious indifference and that the other party was not unduly prejudiced. Id. at 443. That holding has no application to this motion-to-recuse issue. Indeed, the Texas Supreme Court noted in Wheeler that “pro se litigants are not exempt from the rules of procedure” and that having “two sets of rules—a strict set for attorneys and a lenient set for pro se parties—might encourage litigants to discard their valuable right to the advice and assistance of counsel.” Id. at 444.

28 support her argument that the trial judge and the associate judge demonstrated bias

and prejudice against her—a January 14, 2020 hearing and a November 10, 2021

hearing. However, Wife waited until January 4, 2023, to file her motion to

recuse—almost three years after the first complained-of hearing and over a year after

the other complained-of hearing. Given that time frame, the trial court did not abuse

its discretion by denying Wife’s motion because it was not filed “as soon as

practicable after the movant knows of the ground stated in the motion.”

Tex. R. Civ. P. 18a(b)(1)(A); see K.T. v. M.T., No. 02-14-00044-CV, 2015 WL 4910097,

at *2 (Tex. App.—Fort Worth Aug. 13, 2015, no pet.) (mem. op.) (holding that trial

judge did not abuse his discretion by denying motion to recuse that was filed “over a

year and a half” after complained-of remark was made).

Moreover, the record on appeal does not contain any transcript of the January

14, 2020 or November 10, 2021 hearings. Indeed, Wife’s argument on appeal relating

to her complaint of alleged bias and prejudice simply recites the allegations contained

in her motion to recuse. That alleged proof does not meet the “high threshold”

required for proving bias or prejudice; rather, it consists merely of Wife’s assertions of

bias. See Goesling, 2023 WL 7037650, at *16; B.M.B., 2023 WL 3836429, at *5;

Echols v. Gulledge & Sons, LLC, No. 10-13-00419-CV, 2014 WL 4629056, at *6

(Tex. App.—Waco Sept. 11, 2014, pet. denied) (mem. op.) (“Given that there is no

record of a hearing . . . and because the only evidence of bias and impartiality that [the

appellants] point to are the accusations contained in their motion to recuse, we cannot

29 say that [the appellants] satisfied their burden of showing bias or impartiality to such

an extent as to deprive them of a fair trial.”).

We overrule Wife’s fifth issue.

F. Wife’s Complaint Regarding the Reopening of Evidence

In her sixth issue, Wife argues that the trial court abused its discretion by

“allowing the Intervenor to reopen evidence when necessary predicates were not

laid.”

Pursuant to Texas Rule of Civil Procedure 270, “When it clearly appears to be

necessary to the due administration of justice, the court may permit additional

evidence to be offered at any time; provided that in a jury case no evidence on a

controversial matter shall be received after the verdict of the jury.” Tex. R. Civ. P.

270. The decision to reopen the evidence is within the sound discretion of the trial

court, and the trial court should liberally exercise its discretion in the interest of justice

so that all parties can fully develop their case. In re E.G.M., No. 04-22-00319-CV,

2024 WL 1643343, at *4 (Tex. App.—San Antonio Apr. 17, 2024, no pet.) (mem.

op.); Holden v. Holden, 456 S.W.3d 642, 648 (Tex. App.—Tyler 2015, no pet.). A trial

court’s decision to reopen the evidence will not be disturbed on appeal absent a clear

abuse of discretion. Holden, 456 S.W.3d at 648.

In determining whether to grant a motion to reopen, a trial court may consider

a number of factors, including whether: (1) the moving party showed due diligence in

30 obtaining the evidence, (2) the proffered evidence is decisive, (3) reception of such

evidence will cause undue delay, and (4) granting the motion will cause an injustice.

Wade v. Wade, No. 01-13-00912-CV, 2014 WL 3398393, at *8 (Tex. App.—Houston

[1st Dist.] July 10, 2014, no pet.) (mem. op.); Hernandez v. Lautensack, 201 S.W.3d 771,

779 (Tex. App.—Fort Worth 2006, pet. denied).

At a January 9, 2023 pretrial conference, Patino, Wife’s prior attorney, asked

the trial court whether she could present evidence pertaining to her intervention for

attorney’s fees at “the end of the trial.” The trial court agreed with that plan, stating

that because Patino’s intervention for attorney’s fees was “not part of the jury

process,” she would be able to “present [the] matter after the jury has been excused”

and that there was “no need [for her] to be [in the courtroom] for the jury portion.”

Wife—who appeared pro se at the pretrial conference—did not object to that plan.

On the last day of the nonjury portion of the trial, after all sides had rested and

closed, and after a “short recess” was taken, Patino arrived at the courthouse and

asked the trial court to reopen the case. Patino indicated that she wanted the case to

be reopened so that the trial court could consider her testimony and an invoice

reflecting the amount of unpaid attorney’s fees owed to her by Wife. Wife’s attorney

objected to Patino’s motion to reopen the evidence. The trial court responded,

I believe there was an ambiguity as to what time—no specific time was set that we would begin this portion. We did reach out to Ms. Patino and she was alerted to be here, no specific time that we would be done

31 by, and—but she has arrived, even though it’s after the closing. I think that’s a special circumstance that allows her to present her information. We’ll reopen the matter to allow Ms. Patino to testify in that regard.

After the evidence was reopened, Patino presented testimony and evidence regarding

her unpaid attorney’s fees.

Wife argues that the trial court abused its discretion by reopening the evidence

because Patino did not present evidence pertaining to the factors that a trial court may

consider in reopening the evidence—whether (1) the moving party showed due

diligence in obtaining the evidence, (2) the proffered evidence is decisive,

(3) reception of such evidence will cause undue delay, and (4) granting the motion will

cause an injustice. See Wade, 2014 WL 3398393, at *8; Hernandez, 201 S.W.3d at 779.

But we have found no authority holding that a trial court abuses its discretion by

reopening the evidence when those factors are not satisfied. See E.G.M.,

2024 WL 1643343, at *4 (“Given this broad discretion granted to the trial court, this

court has noted that it has found ‘no authority holding that a trial court abuses its

discretion by reopening the evidence [even] in the absence of [the above] factors.’”);

In re R.H.B., 660 S.W.3d 136, 156 (Tex. App.—San Antonio 2022, no pet.) (“[The

appellant] identifies factors a trial court should consider in deciding whether to reopen

the evidence, and he argues [the appellee] did not satisfy those factors. However, he

cites no authority holding that a trial court abuses its discretion by reopening the

evidence in the absence of those factors.” (citation omitted)).

32 And given the circumstances presented here—Wife not objecting at the pretrial

conference to the plan for Patino to present evidence pertaining to her attorney’s fees

at “the end of trial,” the trial court reopening the evidence shortly after both sides had

rested and closed during the nonjury portion of the trial, and the brief testimony and

evidence concerning Patino’s attorney’s fees12—we cannot say that the trial court

abused its discretion by reopening the evidence. See Cox v. Wilkins,

No. 03-05-00110-CV, 2006 WL 821202, at *3 (Tex. App.—Austin Mar. 31, 2006,

pet. denied) (mem. op.) (holding that trial court did not abuse its discretion by

allowing party to reopen evidence on the sole issue of attorney’s fees when it “should

not [have] come as a surprise to [the appellant] that [the appellee] was seeking

attorney’s fees” and when the additional testimony pertaining to the attorney’s fees

spanned “only six pages of the reporter’s record”).

We overrule Wife’s sixth issue.

G. Wife’s Complaint Regarding the Possession Order

In her seventh issue, Wife argues that the trial court abused its discretion by

not entering any findings “as to why the possession order deviates from the Standard

Possession Order.”

12 Patino’s testimony spanned less than five pages of the reporter’s record, and her invoice comprised four pages.

33 1. Applicable Law

The Texas Family Code provides for a standard possession order in cases

involving a suit affecting the parent–child relationship. See Tex. Fam. Code Ann.

§§ 153.3101–.3171. A rebuttable presumption arises that the standard possession

order is in the best interest of the child. Id. § 153.252. If the trial court varies from

the standard possession order, the court must, on written request by a party, state in

writing the specific reasons for the variance from the standard order. Id. § 153.258(a).

If a trial court fails to state its specific reasons for deviating from the standard

possession order, the failure to make such findings does not require reversal if the

record affirmatively demonstrates that the appellant suffered no harm.

Graves v. Graves, 694 S.W.3d 814, 819 (Tex. App.—Houston [14th Dist.] 2024,

no pet.); In re A.V., No. 04-15-00011-CV, 2015 WL 6535471, at *5 (Tex. App.—San

Antonio Oct. 28, 2015, no pet.) (mem. op.). The test for determining whether an

appellant has suffered harm in such an instance is whether the circumstances of the

case would require an appellant to guess the reason or reasons that the judge has ruled

against it. Graves, 694 S.W.3d at *3; A.V., 2015 WL 6535471, at *5.

The final divorce decree had certain provisions relating to the parties’

possession and access to R.H. One of those provisions stated:

34 Supervised Visitation

The Court finds that credible evidence has been presented that [Wife] has filed a false report of child abuse as defined by Texas Family Code §[]153.013 against [Husband]. [Wife] is assessed a civil penalty in the amount of one hundred dollars ($100.00). IT IS THEREFORE ORDERED that [Wife] shall pay said penalty to [Husband] by and through his attorney of record no later than 5:00 P.M. on March 1, 2023[,] by cash, check, or money order.

IT IS THEREFORE ORDERED that [Wife’s] access shall be continuously supervised at all times under the supervision of Tarrant County Community Supervision. IT IS FURTHER ORDERED that [Husband], or his designee, shall make the child available at the time and location agreed upon with the designated supervisor.

IT IS FURTHER ORDERED that [Wife] is enjoined from having any other person(s) (to include family members) from attending her periods of supervised visits. [Wife] is further prohibited from questioning the child about any allegation of abuse addressed as a basis for this order. Any Allegation of future abuse reported by [Wife] must be addressed to the supervisor as soon as an outcry is made. [Wife] is further enjoined from discussing prior allegations of abuse concerning the child with educators or professionals associated with this case. IT IS FURTHER ORDERED that all cost of supervision shall be covered by [Wife]. IT IS THEREFORE ORDERED that [Wife’s] supervised access shall occur on the following days and times . . . .

After the trial court signed the final divorce decree, Wife requested that the trial

court make findings of fact and conclusions of law. Among other things, Wife

requested that the trial court state its findings in support of its child-possession

determination and that it give the specific reasons for the variance from the standard

possession order. The trial court later made findings of fact and conclusions of law.

In its findings and conclusions, the trial court stated that “[l]imiting and restricting

[Wife’s] possession of or access to the child is in the best interest of the child.” The

35 trial court further stated that Wife “has filed a false report of child abuse as defined by

Texas Family Code §[]153.013 against [Husband] and is assessed a civil penalty in the

amount of $100.00.” The trial court also found that Wife “is entitled to periods of

possession with [R.H.] under the terms and conditions set forth in the order” and that

“[d]eviation from the standard possession order is in the best interest of the child.”

On appeal, Wife acknowledges that the trial court made findings of fact and

conclusions of law in response to her request but complains that the court’s findings

and conclusions lacked the specificity required by Section 153.258. See Tex. Fam.

Code Ann. § 153.258. However, Wife failed to address that alleged lack of specificity

with the trial court through a request for additional or amended findings of fact and

conclusions of law. See Tex. R. Civ. P. 298 (“After the court sends original findings of

fact and conclusions of law, any party may file with the clerk of the court a request for

specified additional or amended findings or conclusions.”). Wife has thus forfeited

any complaint regarding the alleged lack of specificity of the trial court’s findings. See

Ahrenhold, 229 S.W.3d at 543 (holding that the appellant waived complaint regarding

inadequacy of findings of fact and conclusions of law by failing to request additional

or amended findings and conclusions); Goodfellow, 2002 WL 31769028, at *7 (similar).

Even if Wife had not waived this complaint, we would still reject it because

Wife has not suffered any harm due to the lack of specificity. In this regard, Wife

does not have to guess the reasons why the trial court deviated from the standard

possession order. In the decree, following a heading labeled “Supervised Visitation,”

36 the trial court stated that Wife had filed a false report of child abuse as defined by

Section 153.013 of the Texas Family Code. See Tex. Fam. Code Ann. § 153.013.

Immediately following the paragraph mentioning the false report, the trial court

stated, “IT IS THEREFORE ORDERED that [Wife’s] access shall be continuously

supervised at all times under the supervision of Tarrant County Community

Supervision.” The trial court then listed the days and times that Wife was allowed

supervised access to R.H., mentioning that Wife was “prohibited from questioning

[R.H.] about any allegation of abuse” during the visits. In its findings of fact and

conclusions of law, the trial court stated that Wife had filed a false report of child

abuse, that “[l]imiting and restricting [Wife’s] possession of or access to the child is in

the best interest of the child,” and that “[d]eviation from the standard possession

order is in the best interest of the child.”

Given those statements from the trial court, we hold that Wife has not suffered

any harm from any purported lack of compliance with Family Code Section 153.258

because she was not required to guess the reasons for the variation—the variation

occurred because the trial court found that she had filed a false report of child abuse

and it thought that the variation was in R.H.’s best interest. See Graves, 694 S.W.3d at

*3 (concluding that the appellant suffered no harm from the absence of a finding as to

why the possession order deviated from the standard possession order where the

appellant did not have to guess the trial court’s reasoning for the deviation);

Filla v. Filla, No. 03-14-00502-CV, 2016 WL 4177236, at *3 (Tex. App.—Austin

37 Aug. 5, 2016, pet. denied) (mem. op.) (“[The appellant] did not have to guess the

reasons why the trial court deviated from a standard possession schedule because the

trial court’s reasons are evident from the record.”); A.V., 2015 WL 6535471, at *7

(“Because the trial court stated its reasons for varying from the standard order on the

record, [the appellant] was not required to guess the reasons for the variations.

Accordingly, [the appellant] was not harmed by the trial court’s not stating the reasons

in its order, and her . . . issue is overruled.”).

We overrule Wife’s seventh issue.

H. The Evidence Regarding Husband’s Domicile and Residency

In her eighth issue, Wife argues that the trial court abused its discretion by

granting the divorce because the record lacks sufficient evidence regarding Husband’s

domicile and residency.

Section 6.301 of the Texas Family Code provides that no suit for divorce shall

be maintained unless, at the time the suit was filed, either the petitioner or respondent

has been a domiciliary of Texas for the preceding six-month period and a resident of

the county where the suit was filed for the preceding ninety-day period. Tex. Fam.

Code Ann. § 6.301. Although the domicile and residency requirements are not

jurisdictional, they are mandatory requirements for those seeking to maintain an

action for divorce. In re Marriage of Svalesen, No. 05-13-01151-CV, 2015 WL 4456096,

at *2 (Tex. App.—Dallas July 21, 2015, no pet.) (mem. op.); Reynolds v. Reynolds,

38 86 S.W.3d 272, 276 (Tex. App.—Austin 2002, no pet.). Questions of domicile and

residency as qualifications for a divorce action are fact issues to be determined by the

trial court, and they will not be disturbed on appeal unless there is a clear abuse of

discretion. Svalesen, 2015 WL 4456096, at *2; Barnard v. Barnard, 133 S.W.3d 782, 785

(Tex. App.—Fort Worth 2004, pet. denied).

In the trial court’s findings of fact and conclusions of law, the trial court found

that Husband “had been a domiciliary of Texas for six months and a resident of

Tarrant County for ninety days.” Wife argues that the trial court abused its discretion

in making that finding because the evidence is insufficient to support it. We disagree.

As a preliminary matter, we note that in Wife’s counterpetition for divorce, she

affirmatively stated that she “has been a domiciliary of Texas for the preceding

six-month period and a resident of this county for the preceding ninety-day period.”

That statement concerning Wife’s domicile and residency satisfies the requirements of

Section 6.301 and is considered a judicial admission that obviates the need for any

evidence on the issue pertaining to Husband’s domicile and residency. See In re I.J.,

No. 05-23-00309-CV, 2024 WL 1671938, at *1 (Tex. App.—Dallas Apr. 18, 2024, no

pet.) (mem. op.) (“But Mother’s counter-petition judicially admitted . . . that the

parties met the residency and domicile requirements. Thus, Mother cannot challenge

the divorce decree on that basis.”); Barnard, 133 S.W.3d at 785 (holding that husband’s

“counterpetition for divorce stating that he was a resident of Denton County and a

39 domiciliary of Texas for the required period of time” constituted a judicial admission

and that “no additional proof [was] required of the admitted fact”); see also Svalesen,

2015 WL 4456096, at *2 (“A statement in the petition for divorce that the petitioner

satisfies the residency and domicile requirements is considered a judicial admission in

the divorce and obviates the need for any evidence on that issue.”).

Even if we looked beyond Wife’s own admissions concerning her domicile and

residency, the evidence adduced at trial is sufficient to support the trial court’s finding

regarding Husband’s domicile and residency. In this regard, the following exchanges

occurred at trial between Husband and his attorney:

Q. Where do you currently reside?

A. Live in Crowley, Texas. Do you want the full address?

Q. Sure.

A. 521 Riverbed, Crowley, Texas, 7602—76036.13

Q. Is that the residence where you and [Wife] resided together?

Q. When did you purchase that home?

13 We take judicial notice that 521 Riverbed Drive, Crowley, Texas 76036, is an address in Tarrant County, Texas. See Barber v. Intercoast Jobbers & Brokers, 417 S.W.2d 154, 157–58 (Tex. 1967) (holding that a court may take judicial notice that a specific intersection is located in a particular county); Kishor v. TXU Energy Retail Co., LLC, No. 05-10-01496-CV, 2011 WL 5857215, at *3 (Tex. App.—Dallas Nov. 17, 2011, no pet.) (mem. op.) (“We may take judicial notice that this address is within Dallas County.”).

40 A. In late 2016, I think.

....

Q. So you indicated—I think you testified that you have resided at 521 Riverbed for almost six years?

A. Uh-huh. Correct.

Q. Who currently resides there?

A. Myself and [R.H.]

Q. Okay. So you’re presently married to [Wife]. When did you get married?

A. August 13—18th, 2013.

Q. Prior to the separation, did you live in the marital residence together on Riverbed?

Q. Did you live in this county for the 90 days prior to filing this case?

Q. Have you been a resident of the State of Texas for at least six months?

Q. Prior to filing, too?

41 A. Yes.

The above testimony—establishing that Husband had lived in Tarrant County

for the ninety days prior to filing suit, had been a resident of Texas for at least six

months prior to filing suit, had resided with Wife in Tarrant County in a home

purchased in 2016, had been living in that home for “almost six years,” and was still

living in that home—is evidence that supports the trial court’s finding regarding

Husband’s domicile and residency. See Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (“At trial, [the appellee] testified that [the appellant]

had lived in Texas at least six months and in Harris [C]ounty at least 90 days. This is

some evidence that Rule 6.301 has been satisfied.”). Because evidence exists to

support the trial court’s finding, we hold that the trial court did not abuse its

discretion in making the finding. See Svalesen, 2015 WL 4456096, at *2; Barnard,

133 S.W.3d at 785; see also Barry, 193 S.W.3d at 75 (holding that because there was

“some evidence that Rule 6.301 ha[d] been satisfied,” there was “legally and factually

sufficient [evidence] to meet the statutory requirements”).

We overrule Wife’s eighth issue.

42 IV. CONCLUSION

Having overruled Wife’s eight issues, we affirm the trial court’s final divorce

decree.

/s/ Dana Womack

Dana Womack Justice

Delivered: October 17, 2024