Affirm and Opinion Filed September 29, 2023
In The Court of Appeals Fifth District of Texas at Dallas No. 05-21-00918-CV
IN THE INTEREST OF S.I.J., S.M.J., S.D.J. II, CHILDREN
On Appeal from the 255th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-20-07514
MEMORANDUM OPINION Before Justices Molberg, Pedersen, III, and Miskel Opinion by Justice Molberg Pro se Father appeals the trial court’s final decree of divorce making Mother
sole managing conservator of children S.I.J., S.M.J., and S.D.J. Because we find
Father’s complaints meritless, we affirm in this memorandum opinion.
Background
We will discuss the proceedings in the trial court and the evidence presented
at trial to the extent necessary to resolve Father’s appellate issues. Father filed an
original petition for divorce from Mother on May 21, 2020. The couple had three
boys, S.D.J., S.M.J., and S.I.J., aged eight, four, and three respectively. In her
counterpetition, Mother alleged, among other things, that S.M.J. and S.I.J. had mental or physical disabilities and required substantial care and personal
supervision.
On October 20, 2020, the trial court entered temporary orders under which
Father and Mother were temporary joint managing conservators. Among other
things, Father and Mother were prohibited from consuming alcohol or a controlled
substance within eight hours before or during the period of possession of or access
to the children.
On February 22, 2021, the trial court conducted a bench trial over Zoom.
During Father’s testimony, his counsel repeatedly asked him to answer the questions
being asked and to refrain from speaking unless he was answering questions. After
a short break, counsel for Mother stated, “Judge, before we continue, my client has
some very strong concerns that Mr. Jackson might be intoxicated right now. And
before we continue, I just want to go on the record and make sure that -- that he does
have the capacity to continue to answer questions and participate in this hearing?”
Counsel for Father responded:
Judge, first I’d like to say “thank you” to the Court and Mr. Aldinger for allowing us a quick break there. Mr. Jackson, I think, is under a lot of stress, complicated by the situation with his family and his young boys, the divorce trial. I asked him if he’s under any type of substance medication, any prescriptions, any substance at all that would inhibit his ability to testify? And he said, no, Judge. So I just -- Mr. Jackson is more of a situation of stress and pressure of the situation.
Father then told the court he could proceed with the trial. When his testimony
resumed, it was interrupted again when it appeared Father was speaking with
–2– someone in his room; he told the court, “I’m sorry, Judge. That was somewhere else,
but done and done. Umm, yeah. I had to take care of -- someone wanted to sneak in
the phone. Yeah, we can’t do that. Not even.” The court inquired of Father’s
counsel: “Are you sure, Mr. Kelly, that your client is okay to testify because his
demeanor is quite bizarre?” Mother’s counsel stated:
Judge, under the circumstances, I’d rather us get him on the record. But if Mr. Kelly asks for additional courtesy, then that's fine. I’ll grant him that. I just want to get to the bottom of this because, again, my client has very strong concerns that he is intoxicated either with alcohol or some drug into his system. And she has very real concerns about it. And if not, with the capacity to participate today, I think we need to reset this, out of fairness of the parties and Mr. Kelly, as well. With that on the record, if he needs five minutes to confer with his client, again, I’ll leave it up to the judge’s discretion. I’m not gonna be opposed.
After a five-minute break, Father’s counsel stated:
I did speak with my client. I believe that my client is not under any illegal or substances -- illegal substance and/or alcohol today that would impair him. As fair [sic] as clear impairment, I believe is lack of sleep, stress. Maybe that combination. He said he’s been taking some Tylenol. I’m not sure if it's an adverse reaction to the non-prescription pain relief. Something has caused this gentleman not to be himself today. It’s somewhat obvious. His demeanor is not -- I don’t want to say “acceptable.” It wasn’t normal today. We’re asking for a brief recess to allow Mr. Jackson to take care of whatever conditions that’s caused him to not be able to testify here today and have a quick reset?
Counsel for Mother reiterated Mother’s belief that Father was intoxicated due
to “either alcohol or the addition of some type of drug added to the alcohol,” and she
“ask[ed] the court to go ahead and order [Father] to appear this morning for a drug
and alcohol test on hair and urine.” Among other things, counsel for Father
–3– responded, “if they want to do a drug test for illegal substances, that would be fine,”
and that a urine test would be fine.
The trial court allowed Mother to make a trial amendment to plead that she
now sought to be sole managing conservator, and the court required Father submit
to drug testing that morning. The court also indicated it would restrict Father’s
possession and access until trial concluded.
On February 26, 2021, Mother filed her first amended counterpetition for
divorce. Among other things, the counterpetition stated that Father “may pose, or
poses, a significant risk of harm to the physical safety and emotional well-being and
development of the children the subject of this suit[,]” and requested Mother be
appointed sole managing conservator of the children. Mother requested, among
other things, that Father be required to complete a substance abuse evaluation and
complete any plan recommended by the evaluator; obtain an alcohol monitoring
device or be subject to random drug and alcohol testing; be supervised during any
periods of visitation until he completed a treatment plan recommended following
substance abuse evaluation; and “complete all education and training related to the
care of [S.M.J.] and [S.I.J.].”
Father’s hair and urine drug test results from the first day of trial were filed in
the record on March 9, 2021. They reflected positive results for ethyl glucuronide
(ETG) and ethyl sulfate (ETS).
–4– Trial continued on April 5, 2021. Mother called Chris Deal to testify. Deal
performed alcohol and drug testing on Father following the first day of trial. He
stated Father’s urinalysis test was positive for ETG, at a level of greater than 80,000
ng/ml, and for ETS, greater than 20,000 ng/ml. Deal said the hair test could reflect
alcohol consumption over the past 90 days, and the urine test could reflect
consumption over the past 80 hours.
Father testified his gross income was $39,000 annually. He said S.D.J. was
ten, S.M.J. was four, and S.I.J. was three. When counsel asked him whether one of
the children was “closer to six,” Father answered, “no.” Father stated S.M.J. and
S.I.J. had been diagnosed with neuronal ceroid lipidosis, which he described as a
degenerative brain disease that, in practical terms, meant the two children could not
walk or speak. S.M.J. required a feeding tube “a lot of the time,” and neither child
could lift his arms. Both children required wheelchairs to be moved. S.M.J. and
S.I.J. had four nurses, paid for by Medicaid, who, over a twelve-hour period each
day, gave the children basic care, muscle movement care, and helped them learn as
much as they could.
Father said he did not receive communication from Mother about the two
boys. He also tried to receive information from the boys’ doctors but “met resistance
there” as well. Father said Mother left the marital residence in August 2019. Before
then, Father said he slept with the boys so he could monitor their seizures, changed
diapers, cooked, cleaned, and other “normal stuff.” After the COVID-19 pandemic
–5– began, Father said he no longer took them to the doctor as much because doctors’
offices allowed just one parent during visits. Father wanted the court to allow him
access to the children’s medical records and to require Mother to inform him about
any new changes if Father did not learn about them from the doctor. He also wanted
to be informed about doctor’s appointments and medications the children were
taking. Father said that sometimes the nurses were sent home when it was Father’s
turn to take the children, despite the fact that the nurses still had time scheduled with
the children. Father wanted the court to require access to the nurses like Mother had.
Father said he had a good relationship with S.D.J. Father coached S.D.J.’s
baseball and soccer teams, taught him how to cook, and played video games with
him.
Father also discussed what happened the morning of the first day of trial. He
said he was tired and stressed and “had a few drinks to help [him] sleep,” but that
since then, he had “been doing what’s necessary to handle all those issues.” He had
been seeing a specialist to help him deal with the stress, alienation, and feelings of
anxiety. He also participated in the BACtrack program1 following the incident, said
he had stopped consuming alcohol, and was willing to continue being monitored by
BACtrack.
1 BACtrack is service in which the participant utilizes a breathalyzer device to measure his blood alcohol content level. –6– Father testified he owned the marital home, and he wanted to keep living
there. He wanted to buy Mother out of the equity of the home, which, he said, was
worth around $196,000. The other major assets included the cars and Mother’s
retirement account. Father was seeking half of the funds in Mother’s retirement
account, and he believed they should keep their own vehicles.
On cross-examination, Father denied he was an alcoholic and denied having
any problems with alcohol—he said he could stop anytime he liked. But he said he
would not agree to a permanent alcohol injunction “because that means never.”
Father admitted he had been arrested for DWI twice. On April 14, 2019, he was
arrested for DWI and unlawful carrying of a weapon. He invoked his Fifth
Amendment rights when questioned about whether he had consumed alcohol or
possessed a weapon on that date. Father said he was also arrested for DWI on August
24, 2019. When asked whether he would agree to continue BACtrack testing for
one year, he said he would agree to it for thirty days but he did not agree that Mother
should have access to the BACtrack testing results.
Father stated he was ordered to complete education and training regarding the
care of his sons, and he said he had not done the training because, he said, “it doesn’t
exist.”
Mother testified about an incident of family violence in December 2019. She
said she took the children over to Father’s house; he expressed his frustration that
she was “not doing [her] part to mend some things in the relationship,” and she went
–7– into the garage to “allow things to kind of cool off.” Father told her she needed to
take the children and leave, and after she put the children in the car, she saw that
Father was drinking wine. Father noticed that Mother saw what he had been drinking
and stated, “Yes, I have been drinking.” She said he took the bottle and “shoved it
into [her] face very hard.” Mother testified this hurt, and when she picked up her
phone to record the incident, Father grabbed her phone and she was unable to get it
back. He took it and threw it into a neighboring yard. Mother said she filed a report
with the police about the incident.
Father, on redirect examination, denied Mother’s version of the event
happened. He said Mother “two-hand shoved” him and was taunting him to fight
her, so he took her phone and threw it over the fence to get her to leave.
Mother also said prior to this incident there had been incidents of family
violence during the marriage. She said in July 2018, on an occasion when Father
had been drinking, following an argument, Father choked her and then “tried to toss
[her] and slam [her] in the garage on the floor.” She said Father could not slam her
because she had tightly wrapped her legs around him. When they were back inside,
Father slammed Mother down onto the floor, and her head missed the stone fireplace
by a couple of inches. Mother left the house so the situation could cool off.
Father denied this assault ever took place. He stated he never struck Mother
that day.
–8– Mother also discussed an incident that occurred in the summer of 2016 when
Mother told Father he could not drive their vehicle to his brother’s house because,
she said, Father was drunk. Father took the car keys anyway and got in the vehicle
while Mother, who was holding S.M.J. and pregnant with S.I.J., stood behind the
vehicle, telling Father not to move it. As Father turned on the vehicle, Mother
opened the trunk, and Father backed into her causing her to “fl[y] into the back of
the trunk” as the top of the vehicle hit the garage. Father screamed at Mother that
she had “broken the car” and he exited and slammed Mother onto the ground while
she was still holding S.M.J. Mother said at one point she was able to put S.M.J. in
his car seat, get in the vehicle herself, and lock it. She stated Father, who was
“foaming at the mouth,” returned with a pocketknife and slammed the car window.
This went on for about ten minutes before Father went inside again. Mother heard
things breaking inside the house before there was a sustained calm, at which point
she took her son and went inside and found Father “passed out on the couch.”
Father denied this event as told by Mother happened. He said he was trying
to back out of the garage, and he was not drunk. Mother ran behind the vehicle, and
he got frustrated with her because she was pregnant and holding S.M.J. Father said
he did not push Mother, and she did not fall.
Mother said Father had a history of alcohol abuse during the marriage. She
said he did not have control when it came to alcohol. She said he had been arrested
for driving while intoxicated twice. The first arrest was on April 14, 2019. She
–9– became aware of the arrest because she had to take his blood pressure medication to
him at the DeSoto jail. Mother said they later discussed the incident and she said he
felt he drank enough on the occasion to be stopped by police. Mother was concerned
about Father possessing a handgun while drinking because he could “los[e] control.”
She became aware of Father’s second DWI arrest when she had to remove their
vehicle from the impound. Father later told her he had fallen asleep at a stop sign
and was detained by the police as a result; he admitted to her he had been drinking
earlier in the day.
Mother said she did not think Father had ever engaged in any kind of in- or
outpatient alcohol treatment, and she believed he would benefit from such treatment.
Mother said she had difficulty during the marriage getting ahold of Father to
discuss caring for the children. Father would not respond to text messages or answer
phone calls. She said Father had his own online portal where he could access the
children’s health information.
Mother wanted sole managing conservatorship because she believed it was in
the best interest of the children for someone to be able to make decisions “right then
and there, without having to wait a week or two weeks to hear from” Father. Further,
she said, the “alcohol usage [was] extremely concerning” to her, particularly given
that S.M.J. and S.I.J. had seizures throughout the day. She questioned whether
someone who was drunk or hung over could know whether something was going on
–10– with either of the boys. Mother was also concerned about Father’s anger
management problems which he had never acknowledged.
Mother wanted Father to have access to the children but “with some
accountability,” so she wanted Father to have a “step program,” where step one was
supervised visits for ninety days. Mother did not think ninety days of alcohol testing
was adequate because she did not believe Father could resolve his problem in ninety
days. She also did not believe Father’s mother would be an appropriate supervisor
because she did not think his mother could hold him accountable. Mother wanted
real-time access to testing results from BACtrack so she could ensure the children’s
safety was the top priority. Mother said the next step would be restricted access
where he does not have overnight stays for a period, to periods including overnight
access, at least for S.D.J. Then, if he completed a period of clean tests, he could
move onto “something else.” Mother believed it was in the children’s best interest
that BACtrack testing continue through all of these periods of possession for
accountability.
On April 5, 2021, the trial court issued a memorandum ruling that stated,
among other things:
The Court finds that during the Initial Zoom Trial on February 22, 2021, the Court found that [Father] had extremely bizarre behavior during the trial, and the Court had a suspicion that he was under the influence of alcohol or drugs. The Court finds that it had to take a number of breaks so that Attorney Patrick Kelly could try to regroup his client . . . . The Court finally stopped the Trial and Ordered that [Father] go to Nation Drug screening in order to submit a hair and urine sample. The Court
–11– finds that the drug and alcohol results that returned on March 9, 2021 were extremely high for ethyl glucuronide. The Court finds that [Father] was intoxicated and under the influence of alcohol during the February 22, 2021 Trial. The Court finds that [Father] currently has two DWIs currently pending in Dallas County. The Court finds that [Father] believes he does not have a problem with alcohol. The Court finds that [Father] states that he goes to a Dr. Stephenson weekly for alcoholism. The Court finds that since the February 22, 2021 Trial, [Father] has been using a [BACtrack] Alcohol Monitoring Device. The Court finds that [Father] states that he should not be prohibited from ever drinking alcohol.
The trial court entered a final decree of divorce on September 22, 2021. As
pertinent here, the court appointed Mother sole managing conservator and Father
possessory conservator. Father’s possession of S.I.J. and S.M.J. was limited to two
hours every other Saturday, supervised at Faith and Liberty Place. Father was
ordered to admit himself to an inpatient alcohol treatment program and complete the
program before he could have any unsupervised access to the children. Father was
ordered to obtain and use the services of BACtrack to be tested daily for alcohol use,
which he could discontinue after receiving twelve months of no positive test results.
Father was ordered to “complete all training involving the care of the children on or
before August 31, 2021.” The trial court enjoined Father and Mother from
consuming alcohol or any controlled substance for which they did not have
prescriptions.
Father’s counsel withdrew on October 19, 2021, and Father proceeds pro se
in this appeal.
Discussion
–12– In his second issue, Father argues the trial court lacked subject matter
jurisdiction. He raises multiple points, contending Mother’s counter petition and
amended counter petition did not allege domestic violence in the marriage, there was
no evidence to support Mother’s requests, and the trial court erred by ordering Father
“to follow medical instruction based on a medical diagnosis that had not been
determined by medical experts.” Father asks this Court to vacate all orders in the
final decree of divorce “due to the court’s lack of subject matter jurisdiction” relating
to inpatient treatment, BAC monitoring, hair and urine testing, and seeing Dr.
Stephenson for alcohol dependence treatment.
We reject Father’s argument that the trial court lacked subject matter
jurisdiction over this divorce proceeding. Trial courts have the power to and broad
discretion in determining the custody of children “as an incident to the granting of a
divorce.” See Page v. Sherrill, 415 S.W.2d 642, 645 (Tex. 1967). The Texarkana
Court of Appeals recently articulated a trial court’s power to condition a parent’s
possession or access:
When a trial court appoints a parent possessory conservator, it can conclude that unrestricted possession would endanger the physical or emotional welfare of the child, but that restricted possession or access would not. A court can fashion a possession order that remedies the danger to the child’s welfare by placing restrictions and conditions on possession or access. Indeed, if the trial court appoints a possessory conservator, it may grant, deny, restrict, or limit the possessory conservator’s possession of or access to the child.
–13– In re Marriage of Patel & Parrish, 643 S.W.3d 216, 223 (Tex. App.—Texarkana
2022, no pet.) (internal citations and quotations omitted). The trial court has
discretion to impose restrictions or limitations on a parent’s right to possession of or
access to a child as long as they do not exceed those required to protect the best
interest of the child. Gerges v. Gerges, 601 S.W.3d 46, 64 (Tex. App.—El Paso
2020, no pet.). Accordingly, we conclude the trial court had jurisdiction to make the
orders it did here relating to Father’s possession of or access to the children.
We also must reject Father’s complaint about Mother’s pleadings. As we
stated recently:
Our procedural rules require pleadings to provide fair notice of the claim and the relief sought such that the opposing party can prepare a defense. A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases her claim. Under this standard, courts assess whether an opposing party can ascertain from the pleading the nature of the controversy, its basic issues, and the type of evidence that might be relevant.
J.G. v. Jones, 660 S.W.3d 786, 789 (Tex. App.—Dallas 2023, pet. denied) (internal
citations omitted). In her original counterpetition, Mother sought for herself and
Father to be appointed joint managing conservators. As noted above, after Father’s
above-described conduct on the first day of trial, the court granted Mother’s request
to amend her counterpetition to seek appointment as sole managing conservator and
supervised access for Father. See TEX. R. CIV. P. 66; Hampden Corp. v. Remark,
Inc., 331 S.W.3d 489, 497–98 (Tex. App.—Dallas 2010, pet. denied) (“[U]nder rule
of civil procedure 66, a trial court is required to freely grant a request to amend
–14– pleadings during trial unless the opposing party presents evidence the amendment
would prejudice that party in maintaining an action or defense on the merits.”).
Father made no objection to Mother’s proposed trial amendment. Mother did so
amend her pleading and stated in her amended counterpetition that Father “may
pose, or poses, a significant risk of harm to the physical safety and emotional well-
being and development of the children the subject of this suit.” Applying our fair
notice pleading standard, we conclude Mother, when she amended her
counterpetition, sufficiently raised the issue of Father’s alleged alcohol abuse, its
impact upon the physical safety of the children, and related issues, including the
issue of domestic violence. Accordingly, we reject Father’s contention and overrule
his second issue.
In his third issue, Father argues the trial court ordered him to complete “doctor
required training without evidence of courses, certificates, or training
specifications.” He further argues no evidence warranted the restriction of his
possession and access to his children, and there were “no reports against [him] of
neglect, abuse, endangerment, or any other behavior to support court ordered
supervised visitation.” Relatedly, in his eighth issue, Father argues the trial court
erred when it found Father committed acts of family violence because no credible
evidence supported the allegations. And in his fourth issue, Father argues the trial
court’s order that he admit himself to an inpatient alcohol treatment program and
successfully complete the program before he had any unsupervised access to the
–15– children was not supported by the evidence. Father requests the final decree of
divorce be modified to incorporate the possession and access schedule previously
established in the temporary orders.
We review the trial court’s decisions on custody, control, possession, and
visitation matters for an abuse of discretion. Newell v. Newell, 349 S.W.3d 717, 720
(Tex. App.—Fort Worth 2011, no pet.). In our review of a child custody ruling,
“legal and factual sufficiency are not independent grounds of error but are relevant
factors in deciding whether the trial court abused its discretion.” Id.; In re M.P.B.,
257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.). In determining whether
the trial court abused its discretion, we consider whether (1) the court had sufficient
information upon which to exercise its discretion and whether (2) it erred in its
application of that discretion. Newell, 349 S.W.3d at 720–21. Regarding the first
question, the traditional sufficiency review comes into play; with regard to the
second, “we determine, based on the elicited evidence, whether the trial court made
a reasonable decision.” In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort
Worth 2010, no pet.). An abuse of discretion does not occur if some evidence of a
substantive and probative character exists to support the trial court’s decision. In re
B.J.W.S., No. 14-08-01154-CV, 2010 WL 4396291, at *6 (Tex. App.—Houston
[14th Dist.] Nov. 4, 2010, no pet.) (mem. op.). When an order, as here, affects the
conservatorship and possession of a child, the child’s best interests are the primary
consideration. In re K.J.B., No. 07-21-00235-CV, 2022 WL 2173203, at *1 (Tex.
–16– App.—Amarillo June 16, 2022, no pet.) (mem. op.) (citing TEX. FAM. CODE §
153.002).
The record before us contains evidence showing that S.M.J. and S.I.J. had
complex medical needs requiring specialized, around-the-clock care, and that Father
had not completed training the court previously ordered regarding the care of the
children. Accordingly, we conclude the trial court did not abuse its discretion in
ordering Father to complete training regarding the care of the children. Further,
evidence reflects Father had a significant problem with alcohol abuse and had
committed acts of domestic violence. Evidence showed Father had committed three
acts of family violence against Mother, all of which involved Father consuming
alcohol, and one of which involved and directly endangered S.M.J. Evidence
showed Father had been arrested for DWI twice and had to delay trial in this case
due to alcohol consumption. More broadly, Mother testified Father had a history of
alcohol abuse during their marriage and that he did not “have control” when
drinking. Yet Father denied he had a problem with alcohol, testifying he had no
problems with alcohol. Given this, we conclude the trial court did not abuse its
discretion in ordering Father to undergo training regarding the medical care of the
children, finding Father committed acts of family violence, requiring inpatient
alcohol treatment, or requiring supervision for his periods of access to the children.
Further, in light of all of the above, we conclude the trial court did not abuse its
discretion in restricting Father’s possession of and access to the children.
–17– In his ninth issue, Father argues the trial court erred by awarding attorney’s
fees to Mother because no evidence supported such an award. Section 6.708 of the
family code provides that, “[i]n a suit for dissolution of a marriage, the court may
award reasonable attorney’s fees and expenses.” TEX. FAM. CODE § 6.708(c). To
support a request for such an award,
testimony should be given regarding the hours spent on the case, the nature of preparation, complexity of the case, experience of the attorney, and the prevailing hourly rates. The trial court does not need to hear evidence on each factor but can look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties.
In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 387 (Tex. App.—Dallas 2013,
no pet.) (cleaned up). The trial court has broad discretion in awarding an amount of
attorney’s fees. Id. at 386.
In her answer and in her counterpetition for divorce, Mother requested
attorney’s fees to “effect an equitable division of the estate of the parties and as a
part of the division, and for services rendered in connection with conservatorship
and support of the children[.]” Mother’s counsel testified at trial, the trial court
admitted his billing statement into evidence, and Father stipulated to Mother’s
counsel’s qualifications. Counsel stated his hourly rate was $350/hour and his
assistant’s rate was $150; opposing counsel stipulated these were reasonable rates.
Mother’s counsel stated the fee total was $11,629.34 through the end of January. He
stated these fees were reasonable and necessary. He also sought $2,450 in additional
–18– fees for time spent in trial. In questioning whether attorney’s fees were warranted
here, Father’s counsel cross-examined Mother’s counsel about whether this was a
standard divorce case, and Mother’s counsel stated they had to file numerous
pleadings, Father’s alcohol use posed a safety issue for the children, and there “were
very serious allegations in this case.” We conclude Mother’s counsel’s testimony
provided a reasonable basis for the award of attorney’s fees, and we conclude the
trial court did not abuse its discretion by awarding $7,500 in fees. See In re Marriage
of C.A.S. & D.P.S., 405 S.W.3d at 386–87.
In his fifth issue, Father complains about various orders and filings, arguing
they are “misleading, misidentified, or missing.” He complains that a February 24,
2021 order suspending his possession and access to the children is mislabeled as
“non-signed”; Mother’s May 6, 2021 motion to clarify memorandum ruling is
missing from the record; a January 27, 2022 order appointing receiver is “not in the
official e-file system”; a March 26, 2022 settlement statement was “falsely labeled”;
and a March 31, 2022 receiver’s motion for judgment nunc pro tunc “is not in the
records of the case.”
We conclude Father has failed to present anything here for our review. While
we liberally construe pro se pleadings and briefs, we nevertheless hold pro se
litigants to the same standards as licensed attorneys and require them to comply with
applicable laws and rules of procedure. Washington v. Bank of New York, 362
S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.). To present an issue to this
–19– Court, a party’s brief must contain, among other things, “a concise,
nonargumentative statement of the facts of the case, supported by record references,
and a clear and concise argument for the contention made with appropriate citations
to authorities and the record.” Id.; TEX. R. APP. P. 38.1(i). Though “we do not
require rigid adherence regarding the form of a brief, we examine briefs closely for
compliance with rules that govern the content of appellate briefs.” Hammonds v.
Dallas Cty., No. 05-18-01433-CV, 2020 WL 948383, at *2 (Tex. App.—Dallas Feb.
27, 2020, no pet.) (mem. op.). When a party fails to adequately brief a complaint, it
waives the issue on appeal. Devine v. Dallas Cty., 130 S.W.3d 512, 514 (Tex.
App.—Dallas 2004, no pet.).
Because Father fails to make a clear argument for his contentions here made
with appropriate citation to pertinent authorities, we conclude he has failed to present
anything for our review in his fifth issue. See, e.g., Gioffredi v. Retreat at Riverstone,
No. 01-21-00627-CV, 2022 WL 17981570, at *7 (Tex. App.—Houston [1st Dist.]
Dec. 29, 2022, pet. denied) (mem. op.).2
2 We note the procedure for supplementing the clerk’s record may be found at TEX. R. APP. P. 34.5(c). See Mayfield v. N. Vill. Green I Homeowner’s Ass’n, Inc., No. 01-12-00748-CV, 2014 WL 2538554, at *2 (Tex. App.—Houston [1st Dist.] June 5, 2014, pet. denied) (mem. op.) (“On her discovery that the clerk’s record did not contain the documents she deemed necessary for this appeal, [the appellant] could have directed the trial court clerk, by letter, to prepare and file a supplemental clerk’s record containing the documents.”). –20– In his sixth issue, Father argues the division of property in the final decree of
divorce is canceled by another provision in the decree. The decree states, in pertinent
part:
It is ordered and decreed that Petitioner, [Father], is awarded the following as his sole and separate property, and Respondent, [Mother], is divested of all right, title, interest, and claim in and to that property:
P-l. The following real property on the condition precedent he refinance the note payable and mortgage on the martial residence by July l, 2021 subject to the terms of refinancing set forth in this Decree, including but not limited to any escrow funds, prepaid insurance, utility deposits, keys, house plans, home security access and code, garage door opener, warranties and service contracts, and title and closing documents: . . . COMMONLY KNOWN AS [ . . . ] DESOTO DRIVE, DESOTO, TEXAS 75115.
Father argues the first paragraph divesting Mother of all right to the properties listed
cancels out the next paragraph conditioning the award of the marital residence to
Father. Father cites one authority to support his argument: § 9.007(a) of the family
code, which provides that “[a] court may not amend, modify, alter, or change the
division of property made or approved in the decree of divorce or annulment[,]” and
further states that “[a]n order to enforce the division is limited to an order to assist
in the implementation of or to clarify the prior order and may not alter or change the
substantive division of property.” TEX. FAM. CODE § 9.007(a).
We reject Father’s argument. The final decree here clearly conditioned the
award of the marital residence on Father’s refinancing the property pursuant to the
terms of the decree. This conditional award was “the division of property made or
–21– approved in the decree of divorce or annulment,” so it is nonsensical to suggest the
decree itself amended or modified that division of property in violation of § 9.007.
See TEX. FAM. CODE § 9.007(a). Father’s sixth issue is overruled.
Father argues in his first issue the trial court erred and violated his Fourth
Amendment rights by ordering him to submit to drug and alcohol screening. And in
his seventh issue, Father contends the trial court violated his constitutional rights by
enjoining his use of alcohol.3 However, Father did not present these constitutional
complaints to the trial court, and he has accordingly failed to preserve these
complaints for our review. See TEX. R. APP. P. 33.1; Ricks v. Ricks, 169 S.W.3d 523,
526 (Tex. App.—Dallas 2005, no pet.) (complaint that divorce decree failed to
comply with family code was not preserved for appellate review when complaint
was never presented to trial court); Whitworth v. Whitworth, 222 S.W.3d 616, 632
n.10 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (when appellant failed to assert
constitutional claim before the trial court, she did not preserve the claim for appeal).
Father’s first and seventh issues are overruled.
In his final issue, Father contends the trial court erred in appointing the
receiver for the marital residence, Shelly White, and he raises an assortment of
3 Although the family code does not speak to permanent injunctions, courts routinely incorporate them in final orders in family law cases, and there is no bar to incorporating language of injunction into a divorce decree. See Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.—Dallas 2005, pet. denied). Where the family code discusses injunctive relief, it generally dispenses with the traditional requirements for a permanent injunction. Id.; In re B.J.W.S., No. 14-08-01154-CV, 2010 WL 4396291, at *9 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem. op.). “There can be no question that courts routinely grant permanent injunctions consistent with the best interests of the child.” In re B.J.W.S., 2010 WL 4396291, at *9. –22– complaints relating to the receiver. The trial court, in its April 5, 2021 memorandum
ruling, ordered Father to “keep the marital residence . . . on the condition that he
refinance the home by July 1, 2021 and [Mother] is paid 50% of the net equity.” The
court ordered that, should Father fail to refinance the home by July 1, 2021, “the
house is ordered as sold and the court appoints Shelly White [ ] as the realtor to sell
the house at a price that she determines based on the market.” If the house was
ordered sold, the net proceeds were to be divided fifty-fifty. The final decree signed
several months later reiterated these orders. After Father failed to refinance or sell
the home pursuant to the court’s orders, Mother filed an emergency motion to
appoint a receiver, and a hearing on the motion was conducted on September 22,
2021. The emergency motion and any reporter’s record of the hearing are not in the
record before us. On October 7, 2021, Mother again moved for the appointment of
a receiver, stating that Father had failed to refinance the mortgage and was refusing
to sell the residence with Shelly White. On October 19, 2021, Father filed a motion
in opposition to the appointment of the receiver. Among other things, Father argued
no grounds existed for the appointment of a receiver and that the proposed
receivership was inequitable. On December 8, 2021, the trial court extended the
time for Father to refinance the marital residence until January 21, 2022, and ordered
that Father did “not have the authority to unilaterally sell the residence to any third
party without the agreement of [Mother].” The court also appointed Shelly White
as receiver, effective February 1, 2022, to sell the house at the highest attainable
–23– price and divide the proceeds pursuant to the final decree of divorce if Father failed
to refinance the home within the extended timeframe.
Section 7.001 of the family code “grants a trial court broad authority to divide
marital property in a manner it deems just and right upon the dissolution of
marriage.” Rusk v. Rusk, 5 S.W.3d 299, 306 (Tex. App.—Houston [14th Dist.] 1999,
pet. denied); TEX. FAM. CODE § 7.001 (“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.”). The family code further provides that, “[w]hile a marriage is
pending and on the motion of a party or on the court’s own motion after notice and
hearing, the court may render an appropriate order . . . appointing a receiver for the
preservation and protection of the property of the parties.” Id. § 6.502. The trial
court may appoint a receiver if it deems the appointment to be necessary and
equitable in order to preserve and protect one or both parties. In re C.F.M., 360
S.W.3d 654, 658 (Tex. App.—Dallas 2012, no pet.). Section 6.502 gives the trial
court “the broadest form of discretion” when granting section 6.502 orders. Id. We
review a trial court’s order appointing a receiver for an abuse of discretion. Shultz
v. Shultz, No. 05-18-00876-CV, 2019 WL 2511245, at *2 (Tex. App.—Dallas June
18, 2019, no pet.) (mem. op.).
The record on appeal does not contain a transcript of the hearing concerning
the motion to appoint the receiver. “[W]hen we are confronted with an incomplete
–24– record, we presume the evidence supports the trial court’s findings of fact.”
Travelers Indem. Co. of Rhode Island v. Starkey, 157 S.W.3d 899, 905 (Tex. App.—
Dallas 2005, pet. denied). Without a complete record, we must overrule Father’s
challenge to the trial court’s appointment of the receiver. See In re A.W.L., No. 05-
16-00916-CV, 2018 WL 446421, at *4 (Tex. App.—Dallas Jan. 17, 2018, no pet.)
(mem. op.); see also Blue Window Capital, LLC v. City of Dallas, No. 05-22-00042-
CV, 2022 WL 9765467, at *4 (Tex. App.—Dallas Oct. 17, 2022, no pet.) (mem.
op.). Furthermore, Father cites no pertinent authorities to support his other
complaints about the receiver; accordingly, we conclude these claims are waived.
See TEX. R. APP. P. 38.1(i).
Conclusion
We affirm the judgment of the trial court.
/Ken Molberg/ KEN MOLBERG 210918f.p05 JUSTICE
–25– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF S.I.J., On Appeal from the 255th Judicial S.M.J., S.D.J. II, CHILDREN District Court, Dallas County, Texas Trial Court Cause No. DF-20-07514. No. 05-21-00918-CV Opinion delivered by Justice Molberg. Justices Pedersen, III and Miskel participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 29th day of September, 2023.
–26–