Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
Nos. 04-23-00144-CV & 04-23-00635-CV
Christie Lynn TERRELL,
Appellant
v.
Matthew DUKE,
Appellee
From the 131st Judicial District Court, Bexar County, Texas Trial Court No. 2020-CI-02375 Honorable Christine Vasquez-Hortick, Judge Presiding
Opinion by: Lori I. Valenzuela, Justice
Sitting: Lori I. Valenzuela, Justice Adrian A. Spears II, Justice Velia J. Meza, Justice
Delivered and Filed: August 12, 2026 AFFIRMED In thirty-three issues, appellant Christie Lynn Terrell challenges a November 29, 2022 final decree of divorce. We affirm the decree.
BACKGROUND
Terrell and appellee Matthew Duke married in 2018 and are the parents of one child, P.1 In February of 2020, Duke filed an original petition for divorce, and Terrell filed a counterpetition. In 2021, Terrell filed a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond (“affidavit of indigence”).
On November 29, 2022, the trial court signed a final decree of divorce that indicated the parties tried their claims to a Bexar County jury in June, July, August, and September of 2022. The decree divided the parties’ community property and debts and identified their separate property; ordered P.’s name changed; appointed both parents as P.’s joint managing conservators; granted Duke the exclusive right to designate P.’s primary residence within Bexar County; set terms regarding the parties’ possession of and access to P.; and ordered Terrell to pay child support to Duke. The decree also resolved tort claims Duke and Terrell had asserted against each other, entered a take-nothing judgment on Terrell’s tort claims against Duke, and awarded Duke $300,000 in damages for his tort claims against Terrell.
Terrell timely filed several post-judgment motions and a notice of appeal. Duke filed a notice of cross-appeal. Terrell’s appeal and Duke’s cross-appeal were docketed in this court under cause number 04-23-00144-CV (“the substantive appeal”).
Relying on her 2021 affidavit of indigence, Terrell asked the court reporters responsible for preparing the reporter’s record of the trial to prepare and file the record without cost. 2 Both Duke and the court reporters challenged Terrell’s claim of indigence, and the trial court heard that
1 This court typically does not use minors’ names in our opinions. See TEX. R. APP. P. 9.9(a)(3); In re I.G.W., No. 04- 17-00161-CV, 2018 WL 3265292, at *1 n.1 (Tex. App.—San Antonio July 5, 2018, no pet.) (mem. op.). Additionally, one of Terrell’s appellate issues involves a dispute about the child’s middle and last names. For these reasons, we will refer to the child using only her first initial. 2 Terrell paid the district clerk’s fee to prepare the clerk’s record, and it was filed in this court on December 8, 2023.
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challenge in May of 2023. After considering the evidence, the trial court found Terrell was not indigent and could afford to pay for the record. Terrell filed a notice of appeal from that ruling, and that appeal was docketed in this court under cause number 04-23-00635-CV (“the costs appeal”). “We construed Terrell’s notice of appeal [in the costs appeal] as a rule 145(g) motion for review of the order on ability to afford costs.” In re Marriage of Duke & Terrell, Nos. 04-23- 00144-CV & 04-23-00635-CV, 2024 WL 1292414, at *1 (Tex. App.—San Antonio Mar. 27, 2024, no pet.) (mem. op.) (citing TEX. R. CIV. P. 145(g)). We also consolidated the substantive appeal and the costs appeal. Id. at *1 n.2.
On March 27, 2024, we affirmed the trial court’s ruling on Terrell’s ability to afford costs.
See id. at *4. We ordered Terrell to file written proof that she had paid or made arrangements to pay for the preparation of the reporter’s record of the trial, and we cautioned her that “failure to pay for the reporter’s record as ordered will result in consideration of her appeal without a reporter’s record.” Id. On April 17, 2024, we again ordered Terrell to file written proof that she had paid or made arrangements to pay for the preparation of the reporter’s record. Terrell did not file the required proof of payment, and the reporter’s record was not filed in this court.
On May 30, 2024, we abated and administratively closed this appeal because Terrell filed for bankruptcy. On Duke’s motion, we reinstated the appeal on November 12, 2025. We also granted Terrell’s appellate counsel’s motion to withdraw. Terrell, acting pro se, filed an appellant’s brief, Duke filed an appellee’s brief, and Terrell filed a pro se reply brief. Because Duke did not file a brief in support of his cross-appeal, we will assume he has abandoned any complaints he may have had about the trial court’s decree.
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ANALYSIS
Terrell’s thirty-three appellate issues can be divided into three categories: (1) those we cannot consider without a reporter’s record; (2) those we can resolve with only the clerk’s record; and (3) those that are not properly before this court.
Issues That Require a Reporter’s Record As a threshold matter, we note that because Terrell is acting pro se on appeal, we must construe her brief liberally and with patience. See, e.g., Matthews v. Matthews, No. 04-16-00609- CV, 2017 WL 4518295, at *1 (Tex. App.—San Antonio Oct. 11, 2017, no pet.) (mem. op.). Nevertheless, it “is well-settled that a party proceeding pro se must comply with all applicable procedural rules. And procedural requirements include proper presentation of a case on appeal as is similarly required in the trial court.” Smart v. Prime Mortg. & Escrow, LLC, 659 S.W.3d 155, 160 (Tex. App.—El Paso 2022, pet. denied) (citation omitted).
As the appellant, Terrell “bore the burden ‘to see that a sufficient record [was] presented to show error requiring reversal.’” Cody Tex., L.P. v. BPL Expl., Ltd., 619 S.W.3d 735, 742–43 (Tex. App.—San Antonio 2019, pet. denied) (quoting Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990)); see also Moore v. Moore, No. 04-24-00367-CV, 2026 WL 517511, at *1–2 (Tex. App.—San Antonio Feb. 25, 2026, pet. denied) (mem. op.). “In the absence of a reporter’s record, the court of appeals presumes the omitted evidence supports the trial court’s judgment. Further, a court of appeals cannot determine a trial court’s ruling was harmful error if it is unable to review the entire relevant record.” Coleman v. Lemons, No. 01-01-00209-CV, 2001 WL 1854591, at *1 (Tex. App.—Houston [1st Dist.] May 2, 2002, no pet.) (mem. op.) (citations omitted). If an appellant does not meet her burden to present a record showing reversible error, then we cannot reverse the trial court’s judgment. See Cody Tex., 619 S.W.3d at 743.
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Here, the majority of Terrell’s issues relate to matters that we cannot review without a reporter’s record. 3 See Moore, 2026 WL 517511, at *2. We address each of these issues below, considering issues together where possible.
Failure to Enforce Premarital Agreement and Previous SAPCR Order In her first and twenty-second issues, Terrell argues the trial court erred by signing a final decree of divorce that is allegedly inconsistent with the terms of a premarital agreement. In her twenty-seventh issue, she argues the decree’s terms are contrary to both the premarital agreement and a 2018 order entered in a prior suit affecting the parent-child relationship (“SAPCR”).
The alleged 2018 SAPCR order is not included in the appellate record. Accordingly, we have no way of reviewing its terms, comparing it to the trial court’s final decree, or determining whether any deviation from the 2018 SAPCR constituted reversible error. See Coleman, 2001 WL 1854591, at *1; see also TEX. R. APP. P. 44.1(a).
A purported copy of the premarital agreement appears in the clerk’s record; it was attached to Terrell’s pleadings and to the parties’ summary judgment motions and responses. However, documents in the clerk’s record “are not evidence unless they were admitted as exhibits at trial or judicially noticed by the trial court.” Loredo v. Williams, No. 03-25-00052-CV, 2025 WL 2325166, at *2 (Tex. App.—Austin Aug. 13, 2025, no pet.) (mem. op.). Without the reporter’s record, we have no way of knowing whether the premarital agreement was properly authenticated and proved up at trial, whether Duke raised any objections to its admission, or whether the
3 Terrell argues that Texas Rule of Appellate Procedure 38.1(g) requires us to credit the factual assertions in her appellate briefing because Duke did not contradict those assertions in his appellee’s brief. See TEX. R. APP. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated [in the appellant’s statement of facts] unless another party contradicts them.”). We disagree, for two reasons. First, Rule 38.1(g) explicitly provides that the statement of facts “must be supported by record references.” Id. Because there was no reporter’s record filed in this case, none of the factual assertions in Terrell’s brief are supported by record references. Second, Duke’s appellee’s brief expressly “disputes [Terrell’s] recitation of facts insofar as it relies upon uncorroborated assertions unsupported by the reporter’s record” and “disagrees with every factual statement in [Terrell’s] brief that relies on hearsay or matters outside the official trial court record, as [Terrell] has not provided that record.”
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agreement was admitted into evidence or judicially noticed by the trial court. We also cannot determine whether the evidence presented below supports Terrell’s assertions that Duke violated the agreement in ways that required certain rulings in Terrell’s favor. 4 Finally, we cannot evaluate whether the trial court’s deviations, if any, from the premarital agreement constituted reversible error. See Coleman, 2001 WL 1854591, at *1; see also TEX. R. APP. P. 44.1(a).
We overrule Terrell’s first, twenty-second, and twenty-seventh issues.
Legal and Factual Sufficiency In the first subpart of her second issue, Terrell argues that the 2018 SAPCR order established the parties’ rights regarding conservatorship and possession of P. and that Duke was required to, but did not, present legally sufficient evidence of a material and substantial change to modify that prior order. See TEX. FAM. CODE § 156.101(a)(1). In her fourteenth and fifteenth issues, she contends the evidence presented at trial was legally and factually insufficient to support the jury’s findings on Duke’s tort claims.
“An appellant cannot prevail on an evidentiary sufficiency challenge unless he: (a) presents the entire record of the evidence the trial court considered; or (b) designates a partial record in compliance with Texas Rule of Appellate Procedure 34.6.” Cody Tex., 619 S.W.3d at 743. Because Terrell did neither, we must overrule her fourteenth and fifteenth issues and the first subpart of her second issue. See id. at 743–45; see also Moore, 2026 WL 517511, at *1–2.
Alleged Improper Contact with Jurors In her fourth issue, Terrell argues that Duke’s trial counsel engaged in improper contact with the jury. In her thirty-third issue, she argues the trial court abused its discretion by denying her motion for mistrial and refusing to sanction Duke’s counsel for her allegedly improper actions.
4 Terrell argues, inter alia, that Duke was unfaithful to her during the marriage and she was therefore entitled to “one hundred percent of community property.”
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We have no record upon which we can determine whether the improper contact Terrell alleges actually occurred. But even if we accept Terrell’s assertions as true, the record before this court does not allow us to determine whether Terrell timely and properly preserved these issues for our review. TEX. R. APP. P. 33.1(a)(1)(A). If anything, the record before this court shows that Terrell did not timely assert these complaints. There is no written motion for sanctions in the clerk’s record, and Terrell’s own motion for mistrial, which she filed on November 18, 2022, alleged that the conduct about which she complains occurred more than four months before, on July 7, 2022. Furthermore, the record before this court does not permit us to determine whether the trial court’s errors, if any, in addressing these issues probably caused the rendition of an improper judgment or probably prevented Terrell from presenting her issues on appeal. See Moore, 2026 WL 517511, at *2; Coleman, 2001 WL 1854591, at *1; TEX. R. APP. P. 44.1(a). We overrule Terrell’s fourth and thirty-third issues.
Time to Present Evidence
In her sixth issue, Terrell argues the trial court violated her due process rights by allowing Duke six days to present his case-in-chief and limiting Terrell’s case-in-chief to three days. “[T]he trial court has great discretion in the conduct of the trial,” and the court’s limitations on the parties’ presentation of evidence falls within that discretion. Brown v. Brown, No. 01-20-00365-CV, 2021 WL 3204751, at *4 (Tex. App.—Houston [1st Dist.] July 29, 2021, pet. denied) (mem. op.). A claim that the trial court’s limits on the presentation of evidence violated a party’s due process rights is waived unless the complaining party asserted that objection at trial. See id. at *3–4.
Without the reporter’s record, we cannot determine whether Terrell preserved this issue for our review or evaluate the trial court’s exercise of discretion. See Cody Tex., 619 S.W.3d at 743. We also cannot determine whether the trial court’s error, if any, probably caused an improper
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judgment or prevented Terrell from presenting her case on appeal. See Moore, 2026 WL 517511, at *2; Coleman, 2001 WL 1854591, at *1; TEX. R. APP. P. 44.1(a). We therefore overrule Terrell’s sixth issue.
Retaliatory and Threatening Conduct In her seventh, eighteenth, twenty-ninth, and thirtieth issues, Terrell argues that Duke and/or his trial counsel engaged in retaliatory conduct against both Terrell and her attorney and threatened Terrell’s witnesses. In her eighth issue, Terrell argues that Duke’s trial counsel filed a separate lawsuit against her and that the lawsuit created an irreconcilable conflict.
Even if we accept Terrell’s assertions that this conduct occurred, the record before this court does not allow us to determine whether Terrell properly preserved these issues for our review. TEX. R. APP. P. 33.1(a)(1)(A); Cody Tex., 619 S.W.3d at 743. The record also does not permit us to determine whether the trial court’s errors, if any, in addressing these issues constituted reversible error. See Moore, 2026 WL 517511, at *2; Coleman, 2001 WL 1854591, at *1; TEX. R. APP. P. 44.1(a). We overrule Terrell’s seventh, eighth, eighteenth, twenty-ninth, and thirtieth issues.
Property Division
In her ninth and twenty-third issues, Terrell challenges the trial court’s division of the parties’ property and debts. “In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” TEX. FAM. CODE § 7.001. “A trial court has broad discretion to divide the marital estate. This is a fact-intensive inquiry and we presume that the trial court properly exercised its discretion in reaching its decision.” Moore, 2026 WL 517511, at *1 (citations and internal quotation marks omitted). Because we do not have the reporter’s record of the trial, we cannot evaluate the sufficiency of the parties’ evidence or
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determine whether the trial court abused its discretion in dividing the parties’ property and debts. See id. at *2. We therefore overrule Terrell’s ninth and twenty-third issues.
Ineffective Assistance of Counsel In her tenth issue, Terrell argues her trial counsel was ineffective. As support for this issue, she relies on authority that applies to proceedings to terminate parental rights. This was not a parental termination proceeding, and Terrell cites no authority holding that a parent is entitled to effective assistance of counsel in a non-termination SAPCR. But even if we assume such a right exists, an ineffective assistance claim “must be firmly grounded in the record; thus, the record must affirmatively demonstrate the alleged ineffectiveness and the resulting harm.” In re H.E.B., No. 07-17-00351-CV, 2018 WL 651672, at *6 (Tex. App.—Amarillo Jan. 31, 2018, pet. denied) (mem. op.). A claim cannot be “firmly grounded in the record” where, as here, there is no record of the trial proceedings. See, e.g., In re J.F.R. Jr., No. 04-12-00281-CV, 2012 WL 3597215, at *2 (Tex. App.—San Antonio Aug. 22, 2012, no pet.) (mem. op.) (record that is silent as to reasons for counsel’s conduct “generally requires impermissible speculation by the appellate court”). We overrule Terrell’s tenth issue.
Evidentiary Issues
In her eleventh, twenty-eighth, and thirty-first issues, Terrell challenges the trial court’s admission and exclusion of evidence. “The admission and exclusion of evidence is committed to the trial court’s sound discretion.” City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To establish reversible error, the appellant must show that the trial court erred, the erroneously admitted or excluded evidence was controlling on a dispositive issue and was not cumulative, and the error probably caused the rendition of an improper judgment. See Fox v. Cypress at Stone Oak, No. 04-23-00526-CV, 2024 WL 4901922, at *4 (Tex. App.—San Antonio
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Nov. 27, 2024, no pet.) (mem. op.); Van Heerden v. Van Heerden, 321 S.W.3d 869, 875 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The complaining party must also show that she preserved these issues for our review. TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a); Hernandez v. Moss, 538 S.W.3d 160, 166 (Tex. App.—El Paso 2017, no pet.); Richmond Condos. v. Skipworth Com. Plumbing, Inc., 245 S.W.3d 646, 665 (Tex. App.—Fort Worth 2008, pet. denied). Without a reporter’s record of the trial, we cannot review any of these questions and therefore cannot reverse the trial court’s judgment on these grounds. See Cody Tex., 619 S.W.3d at 743.
We overrule Terrell’s eleventh, twenty-eighth, and thirty-first issues.
Duke’s Alleged Mental Illness, Perjury, and Misrepresentation of His Income In her twelfth issue, Terrell complains “the trial court wholly ignored” evidence of Duke’s alleged mental illness in evaluating his fitness to parent P. 5 In her twenty-fifth and thirty-second issues, Terrell argues that Duke committed perjury and misrepresented his income at trial.
We cannot evaluate these claims without a record of the competing evidence the parties presented below. We note, moreover, that even if we had a record of this evidence, these issues present questions of witness credibility on which we must defer to the factfinder. See, e.g., Lowry v. Tarbox, 537 S.W.3d 599, 611 (Tex. App.—San Antonio 2017, pet. denied). The jury, as factfinder, was free to believe Duke’s evidence and disbelieve Terrell’s, and we “cannot impose [our] own opinions to the contrary.” See, e.g., City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). We overrule Terrell’s twelfth, twenty-fifth, and thirty-second issues.
Amicus Attorney
In her thirteenth issue, Terrell contends that the amicus attorney who was appointed to represent P.’s interests did not comply with his statutory duties. Based on her belief that the amicus
5 We note that the jury, not the trial court, made the initial factfinding determination that Duke should be the conservator with the exclusive right to determine P.’s primary residence.
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attorney was ineffective, she argues the trial court erred by ordering her to pay his fees. Because we do not have a record of the testimony and exhibits presented at trial, we cannot evaluate either the effectiveness of the amicus attorney or the reasonableness of his fees. See Cody Tex., 619 S.W.3d at 743. We therefore overrule Terrell’s thirteenth issue.
Limitations
In her sixteenth issue, Terrell argues that Duke’s tort claims were barred by the two-year statute of limitations. By asserting the defense of limitations, Terrell took on the burden of demonstrating: (1) the date when Duke’s tort claims accrued; and (2) that Duke asserted those claims after the statute of limitations expired. See, e.g., In re Est. of Denman, 362 S.W.3d 134, 144 (Tex. App.—San Antonio 2011, no pet.).
Duke’s live pleading alleged that Terrell engaged in the purportedly tortious conduct “[o]n or about September 9, 2019” and “[f]rom on or about January 1, 2020 through on or about May 31, 2020[.]” The clerk’s record shows that Duke filed his original petition for divorce on February 3, 2020, less than two years after he alleged the tortious conduct occurred. Accordingly, this is not a case in which we can resolve the limitations issue merely by examining the parties’ pleadings. See Davis v. Homeowners of Am. Ins. Co., 700 S.W.3d 837, 847 (Tex. App.—Dallas 2023, no pet.) (noting that allegations in plaintiffs’ pleadings did not conclusively establish their claims were barred by limitations).
As support for this issue, Terrell contends that the evidence Duke presented at trial included “unauthenticated recordings admitted over objection and dated to periods more than two years prior to suit.” But without the reporter’s record, we cannot verify this contention and thus cannot reverse the trial court’s judgment on this basis. We note, moreover, that Duke’s live pleading invoked the discovery rule, which, if applicable, would defer the accrual of his cause of action
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until he knew or reasonably should have known of the facts giving rise to the claim. See, e.g., Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). “Inquiries involving the discovery rule usually entail questions for the trier of fact.” Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998). Accordingly, we cannot determine whether the discovery rule applies here without the reporter’s record of the trial. See Cody Tex., 619 S.W.3d at 743.
We overrule Terrell’s sixteenth issue.
Misrepresentations in Duke’s Closing Argument In her seventeenth issue, Terrell argues Duke’s trial attorney misstated the evidence during closing argument. Even if we accept this assertion as true, we cannot reverse based on improper jury argument unless the complaining party shows: “(1) that an error was made in argument; (2) that the argument was not invited or provoked; (3) that the error was preserved by the proper objection, motion to instruct or motion for mistrial; and (4) that the argument was not curable by an instruction, prompt withdrawal, or reprimand.” Macias v. Ramos, 917 S.W.2d 371, 375 (Tex. App.—San Antonio 1996, no writ). Without a reporter’s record of the trial, Terrell cannot satisfy these requirements and therefore cannot meet her burden to establish reversible error. See id.; see also Cody Tex., 619 S.W.3d at 743. We overrule her seventeenth issue.
Deviations Between Decree and Bench Ruling In her nineteenth and twentieth issues, Terrell argues the trial court erred by signing a judgment that materially deviated from “an eight-page bench ruling after trial delineating specific terms,” including the court’s “own ruling that [Duke’s] IRS debt was his separate obligation.” The clerk’s record does not contain an “eight-page bench ruling,” but it does contain three pages of judge’s notes. The judge’s notes do not contain any references to an IRS debt.
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To the extent that Terrell’s argument is based on the three pages of judge’s notes, we have held that “a judge’s notes are for his or her own convenience and form no part of the record.” In re A.W., 384 S.W.3d 872, 873 (Tex. App.—San Antonio 2012, no pet.). While we recognize that “entry of a written order is considered a ministerial act” once the trial court renders judgment, see Araujo v. Araujo, 493 S.W.3d 232, 236 (Tex. App.—San Antonio 2016, no pet.), nothing in the record shows that the trial court rendered judgment on any issues before it signed the written final decree of divorce. See Gamboa v. Gamboa, 383 S.W.3d 263, 270 (Tex. App.—San Antonio 2012, no pet.) (describing rendition of judgment).
To the extent that Terrell contends the final decree deviated from oral rulings the trial court may have made from the bench, we cannot evaluate that claim without a reporter’s record showing the alleged oral rulings. Furthermore, “a written judgment controls over the court’s oral pronouncements.” Radcliffe v. Tidal Petroleum, Inc., 521 S.W.3d 375, 378 n.2 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation marks omitted).
We overrule Terrell’s nineteenth and twentieth issues.
Validity of Marriage
In her twenty-fourth issue, Terrell argues Duke fraudulently induced her into the marriage.
She contends the marriage was therefore void and subject to annulment. Terrell’s live pleading at the time of trial did not allege that the marriage was fraudulent or otherwise voidable, and it requested a divorce, not an annulment. See TEX. R. CIV. P. 301. Without a reporter’s record, we cannot determine whether this issue was tried by consent or examine the evidence, if any, that Terrell presented in favor of it at trial. Cf. In re M.G.N., 491 S.W.3d 386, 407 (Tex. App.—San Antonio 2016, pet. denied). Terrell therefore has not met her burden to show reversible error on this issue, and we overrule it.
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Child’s Name Change
In her twenty-sixth issue, Terrell argues the trial court abused its discretion by changing P.’s name. In a SAPCR, “[o]n request of a party and for good cause shown, the court may order that the name of the child be changed.” TEX. FAM. CODE § 160.636(e); see also id. § 45.004(a)(1) (“The court may order the name of a child changed if . . . the change is in the best interest of the child[.]”); In re H.S.B., 401 S.W.3d 77, 81 n.2 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting “the best interest of a child will necessarily be considered a good cause for changing the child’s name”). Here, the trial court found that it was in P.’s best interest to change her name. See In re H.S.B., 401 S.W.3d at 81 n.2.
“[A] best interest determination is a fact-specific inquiry that requires courts to consider all relevant circumstances[.]” Id. at 86. Because we cannot perform that fact-specific inquiry without a record of the evidence presented below, we overrule Terrell’s twenty-sixth issue. See Cody Tex., 619 S.W.3d at 743; Moore, 2026 WL 517511, at *1–2; Coleman, 2001 WL 1854591, at *1.
Issues That Can Be Resolved Based on the Clerk’s Record Issues Regarding Duke’s Pleadings In the second subpart of her second issue, Terrell argues that the trial court erred by granting Duke the exclusive right to designate P.’s residence and ordering Terrell to pay child support. Terrell characterizes these provisions as modifications of the purported 2018 SAPCR, and she argues the pleadings do not support those modifications because Duke filed an original petition for divorce, not a modification petition. Compare TEX. FAM. CODE § 153.001–.709 (provisions applicable to original suits for conservatorship, possession, and access to a child), with TEX. FAM. CODE § 156.001–.409 (provisions applicable to modifications of existing conservatorship and child
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support orders); see also TEX. R. CIV. P. 301. In her third issue, Terrell argues that Duke did not timely request certain “exclusive decision-making rights” that were awarded to him in the decree because he did not file a pleading requesting those rights at least 30 days before trial.
“Without proper pleadings and evidence, a trial court exceeds its authority if it modifies or reforms previous orders affecting the custody of a child.” In re M.G.N., 491 S.W.3d at 406 (internal quotation marks omitted). However, “Texas follows a ‘fair notice’ standard for pleading. Generally, a pleading provides fair notice of a claim when an opposing attorney of reasonable competence can examine the pleadings and ascertain the nature and basic issues of the controversy and the relevant testimony.” Taylor v. Taylor, 337 S.W.3d 398, 401 (Tex. App.—Fort Worth 2011, no pet.) (citations omitted). If a complaining party did not file special exceptions, we construe the petition liberally in the pleader’s favor “to include all claims that reasonably may be inferred from the language used in the petition.” In re S.A.M., 321 S.W.3d 785, 788 (Tex. App.—Houston [14th Dist.] 2010, no pet.); see also Taylor, 337 S.W.3d at 401.
Although Terrell filed special exceptions to Duke’s petition, her special exceptions did not assert that Duke should have filed a modification petition instead of an original suit or identify any pleading defects in Duke’s conservatorship and child support claims. Accordingly, we must construe Duke’s petition liberally in his favor as to those claims.
Duke’s second amended petition, which appears to have been his live pleading at the time of trial, contained the following allegations and requests for relief:
[Duke] and [Terrell] are the parents of [P.] who is under the continuing jurisdiction of the 73rd Judicial District Court of Bexar County, Texas[.] . . . [Duke] should be designated as the conservator who has the exclusive right to designate the primary residence of the child. . . . The Court should award [Duke] the exclusive right to enroll the child in school. [Terrell] should be ordered to provide support for the child including the payment of child support and medical and dental support in the manner specified by the Court. . . . [Duke] requests the Court to appoint him as conservator with the following exclusive rights: to consent to medical, dental, and
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surgical treatment involving invasive procedures; and to make decisions concerning the children’s [sic] education.
Duke filed his second amended petition on January 4, 2022, more than five months before the trial began in June of 2022. See TEX. R. CIV. P. 63.
When construed liberally in Duke’s favor, the language quoted above was sufficient to notify an attorney of reasonable competence that P. was already under the continuing jurisdiction of a specific court (i.e., that another SAPCR order existed); that Duke was requesting certain exclusive rights regarding P., including the right to designate her residence; and that he was asking the court to order Terrell to pay child support. See In re S.A.M., 321 S.W.3d at 788–89 (holding that petition styled as an original suit could be construed as a modification petition). If, as Terrell asserts here, those requests indeed sought modifications of the prior SAPCR order, then the clerk’s record shows Terrell had timely and sufficient notice of that issue. See id.
We overrule Terrell’s third issue and the second subpart of her second issue.
Alleged Trial Court Bias
In her fifth issue, Terrell complains that the trial court judge was biased against her and that the judge’s failure to recuse herself denied Terrell her right to due process. “To recuse a judge, a party must follow the procedure prescribed by Rule 18a of the Texas Rules of Civil Procedure.” Pitts v. Johnson, No. 04-03-00552-CV, 2004 WL 1159347, at *1 (Tex. App.—San Antonio May 26, 2004, no pet.) (mem. op.) (citing TEX. R. CIV. P. 18a). A Rule 18a motion must, inter alia, “be verified” and “be filed as soon as practicable after the movant knows of the ground stated in the motion[.]” TEX. R. CIV. P. 18a(a)(1), (b)(1)(A).
The clerk’s record shows that Terrell first raised the recusal issue in a post-trial motion for mistrial that she filed on November 18, 2022. That motion relied on events that purportedly occurred several months before the motion was filed and thus was not filed “as soon as practicable
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after” Terrell learned of the stated grounds. See TEX. R. CIV. P. 18a(b)(1)(A). Moreover, the motion was not verified. See id. R. 18a(a)(1). Because Terrell did not follow the procedures prescribed by Rule 18a, she “may not complain about the judge’s failure to recuse [her]self,” and we overrule her fifth issue. See Pitts, 2004 WL 1159347, at *1.
Issues Not Properly Before This Court In her twenty-first issue, Terrell argues that Duke’s alleged post-decree refusal to sell the marital home violated the terms of the divorce decree. While this argument may present an enforcement issue to raise in the trial court, see TEX. FAM. CODE § 9.001, Terrell has not explained why it supports reversal of any portion of the decree itself. Because the decree itself is the only appealable order before this court, we overrule Terrell’s twenty-first issue.
CONCLUSION
Having overruled each of Terrell’s appellate issues, we affirm the trial court’s final decree of divorce.
Lori I. Valenzuela, Justice