in the Interest of T.A. and E.A., Children ( 2022 )

Affirmed and Opinion Filed June 14, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00508-CV
IN THE INTEREST OF T.A. AND E.A., CHILDREN
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-14-14659
MEMORANDUM OPINION
Before Justices Schenck, Partida-Kipness, and Pedersen, III
Opinion by Justice Partida-Kipness
In this divorce suit, a pro se father brings four issues challenging the denial of
a continuance, the allowance of a child custody evaluation that he alleges to be one-
sided, and an allegedly excessive award of back child support. We affirm the trial
court’s judgment.
BACKGROUND
In 2014, Mother petitioned for divorce from Father and asked the trial court
to determine custody of the couple’s two children, T.A. and E.A. In late 2019, after
years of minimal legal activity by the parties, the trial court took steps to move the
case forward. First, it entered temporary orders that, among other things, ordered
Father to pay mother $1,084.32 in child support per month. Second, in September
2019, it ordered an updated child custody evaluation by Dr. Donna Milburn, which
was submitted to the court in December 2019. Third, in December 2019, the divorce
case was set for dismissal for want of prosecution unless the parties appeared on
February 20, 2020. The trial court’s notice warned the parties, “This case will be
dismissed for want of prosecution in accordance with Rule 165a Texas Rules of Civil
Procedure, if the Petitioner or Counter-Petitioner fails to appear at trial. If a party
fails to appear for trial a default judgment may be entered against that party.” The
notice further warned, “Parties not ready for trial should file a Motion for
Continuance.” No motion for continuance appears in the record.
On February 20, 2020, the case went to trial, but Father did not appear. Mother
moved for a default judgment, which was granted. The default judgment awarded
Mother sole managing conservatorship and awarded Father possessory
conservatorship. The judgment also awarded Mother $8,755.88 to account for
Father’s child support arrearages. Father appealed.
DISCUSSION
In his first and fourth issues, Father complains that the trial court erred by
denying a continuance of the February 20, 2020 trial setting. Father claims he was
unable to attend because he was in drug rehabilitation at Dr. Milburn’s
recommendation. However, he failed to move for a continuance. A trial court may
not grant a continuance except on “sufficient cause supported by affidavit, or by
consent of the parties, or by operation of law.” TEX. R. CIV. P. 251. Further, as a
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prerequisite to presenting a complaint for appellate review, the record must show
that the complaint was made to the trial court by a timely request, objection, or
motion and that the trial court (1) ruled on the request, objection, or motion, either
expressly or impliedly, or (2) refused to rule on the request, objection, or motion,
and the complaining party objected to the refusal. TEX. R. APP. P. 33.1(a). Here,
Father did not move for a continuance below and, therefore, this issue is not
preserved for our review.
In his second issue, Father asserts that the trial court’s award of back child
support was much larger than his income warranted. Father’s sole factual support
for this argument comes in the form of a document that was attached to his brief and
not included in the record—namely, a summary that purports to tabulate Father’s
income. An appellate court cannot consider documents that are attached to a brief as
appendices if they are not formally included in the record on appeal. In re J.K.F.,
345 S.W.3d 706, 710 (Tex. App.—Dallas 2011, no pet.); Burke v. Ins. Auto Auctions
Corp., 169 S.W.3d 771, 775 (Tex. App.—Dallas 2005, pet. denied). We, therefore,
do not consider the documents attached to his appellate brief.
Moreover, Father’s briefing is inadequate. We 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 N.Y., 362 S.W.3d 853, 854 (Tex. App.—
Dallas 2012, no pet.). To do otherwise would give a pro se litigant an unfair
advantage over a litigant who is represented by counsel. Id. Our appellate rules
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require an appellant’s brief to contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record. TEX. R.
APP. P. 38.1(i); In re J.P., 365 S.W.3d 833, 837 (Tex. App.—Dallas 2012, no pet.).
When a party fails to adequately brief a complaint, he waives the issue on appeal.
Washington, 362 S.W.3d at 854–55.
Here, Father does not explain how the child support award was miscalculated.
Rather, in a single paragraph of argument, he generally asserts that the child award
was “much larger . . . [t]han the facts dictated,” without elaboration. Father also cites
no legal authority to support his argument except an 1889 case from the Wisconsin
Supreme Court that concerned alimony, not child support. Father’s second issue fails
the minimal requirements of Rule 38.1, and we deem it inadequately briefed.
Regardless, even if Father had adequately briefed the issue, his sole argument
appears to be that the summary of income that he attached to his brief shows that the
trial court incorrectly estimated his income. This does not show reversible error. See
In re R.M.H., No. 05-13-01426-CV, 2014 WL 5581042, at *3 (Tex. App.—Dallas
Nov. 4, 2014, no pet.) (mem. op.) (rejecting a claim concerning miscalculated child
support because “[n]one of appellant’s assertions concerning her and appellee’s
income and assets are supported by the record, and the document attached to
appellant’s brief is not part of the record”). We overrule Father’s second issue.
In his third issue, Father asserts that he was denied the right to participate in
Dr. Milburn’s updated custody evaluation because he could not afford to pay the
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$1,000 fee that she charged. Father insists that since he had no input in Dr. Milburn’s
report, it was error for the trial court to rely on the report.
The factual premise of this argument—that Dr. Milburn refused to allow
Father to participate in the evaluation—is rebutted by the evaluation itself. In the
evaluation, Dr. Milburn reported that Father was made aware of the court order to
update the evaluation and was copied on various email exchanges inviting him to
participate in the evaluation process, but Father never contacted Dr. Milburn in the
months that the updated evaluation was being compiled. Regardless, Father never
objected to the evaluation in the trial court, and thus any objection to the report is
now waived. See TEX. R. APP. P. 33.1(a). Accordingly, we overrule Father’s third
issue for lack of preservation.
CONCLUSION
Because Father’s various challenges to the judgment are either unpreserved
or inadequately briefed, we overrule his issues on appeal and affirm the trial court’s
judgment.
/Robbie Partida-Kipness//
200508f.p05 ROBBIE PARTIDA-KIPNESS
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF T.A. AND On Appeal from the 254th Judicial
E.A., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. DF-14-14659.
No. 05-20-00508-CV Opinion delivered by Justice Partida-
Kipness. Justices Schenck and
Pedersen, III participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee LORI ANDERSON recover her costs of this
appeal from appellant DARRICK ANDERSON.
Judgment entered this 14th day of June 2022.
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