Opinion issued April 23, 2019

 In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-17-00415-CV

———————————

IN THE INTEREST OF I.M.M. AND K.R.M., CHILDREN

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Case No. 2007-50042

MEMORANDUM OPINION

In this SAPCR suit, Gary, the father of I.M.M. and K.R.M., appeals the trial 

court’s final order that modified conservatorship, visitation, and child support. We 

affirm.

Background

Gary and Arlene divorced in 2008 in the 310th District Court of Harris 

County. Both are attorneys. The Agreed Final Decree of Divorce was signed by the 
2

Honorable Lisa Millard, presiding judge of the 310th Judicial District Court. Gary 

and Arlene were appointed joint managing conservators of their two daughters, 

I.M.M. and K.R.M., and Gary was given the exclusive right to designate the 

children’s residence and the sole right to make decisions concerning the children’s 

education. Arlene, who was temporarily leaving Texas to attend a Masters 

program, was ordered to pay Gary monthly child support. 

An April 7, 2011 order on Gary’s and Arlene’s respective motions to modify 

continued their status as joint managing conservators, modified Arlene’s request to 

increase her possession and access (giving Gary and Arlene approximately 50/50 

possession time), increased Arlene’s child support to Gary, and denied Arlene’s 

request that she be given the exclusive right to designate the children’s primary 

residence.

On January 28, 2016, Gary filed another petition in the 310th Judicial 

District Court seeking to modify the parent-child relationship. Gary’s petition 

asserted that the 310th District Court had continuing, exclusive jurisdiction of the 

suit, sought to enjoin Arlene from discussing educational decisions with the 

children, and requested a judicial determination on whether Arlene was a risk for 

the international abduction of the children (Arlene is a native of the Phillipines).

Arlene filed a counter-petition seeking, among other things, the joint right to 

make educational decisions, permission to travel with the children internationally 
3

during her periods of possession, authority to select a counselor or therapist for the 

children, and a decrease in child support.

On July 14, 2016, just a few days before Gary’s summer possession began, 

Arlene filed an “Emergency Motion for Temporary Restraining Order and Request 

for Emergency Hearing for Temporary Orders.” By this time, Gary had remarried, 

and his wife had children from a previous relationship, including her adult son D.S. 

In her affidavit accompanying the emergency motion, Arlene stated that her and 

Gary’s eldest daughter I.M.M. had recently disclosed on her fourteenth birthday at 

a church meeting that she had been secretly “sleeping” with D.S., her twenty-yearold stepbrother (a member of Gary’s household) since the beginning of the 2015 

school year.1 According to Arlene’s affidavit, I.M.M. said that she and D.S. had 

been caught by her stepmother one night in April 2016 and that her stepmother 

informed Gary, who allowed D.S. to remain in the household.

Child Protective Services was contacted, and a caseworker proposed a safety 

plan that prohibited I.M.M. and K.R.M. from having contact with D.S. According 

to Arlene’s affidavit, I.M.M. told Arlene that her father and stepmother were very 

upset with her for disclosing her relationship with D.S. Arlene’s affidavit 

expressed her concern for the physical safety and emotional welfare of I.M.M. and 

K.R.M. while in Gary’s possession because of his failure to protect the children by 

 

1 Arlene’s affidavit states that Gary and his wife had been asked by I.M.M. to 

attend this church meeting, but they did not attend.
4

allowing D.S.’s sexual abuse of I.M.M. to take place and by knowingly allowing

D.S. to remain in the household after learning of the sexual abuse. Arlene also 

expressed concern for I.M.M.’s substantial risk of mental harm from the verbal and 

mental abuse from her father and stepmother as a result of I.M.M.’s disclosure.

Arlene’s emergency motion requested the removal of the children from 

Gary’s possession until the completion of the CPS investigation or until a hearing 

could be held, the denial of Gary’s access to the children or only supervised 

visitation, the preparation of a child-custody evaluation, and a psychological 

evaluation of the children.2 Arlene also sought the appointment of an amicus 

attorney.

An associate judge heard Arlene’s emergency motion with counsel for 

Arlene and Gary present, signed her proposed temporary restraining order, and 

appointed Amy Lacy as amicus attorney. Gary then filed a motion to dissolve the 

TRO, and the associate judge denied it after a hearing.

In August 2016, the associate judge held an evidentiary hearing over two 

days on Arlene’s request for temporary orders. Evidence included I.M.M.’s 

 

2 Gary’s attorney stated on the record that the CPS caseworker told him that 

her recommendation was to close the investigation, claiming that “CPS often 

dismisses the claim” when someone in a custody case gets reported.

Arlene’s attorney stated that one of the reasons that CPS closes cases is that 

there is a pending court case in which the parents have lawyers and there is 

an amicus attorney, and CPS does not want to be involved in it. The amicus 

attorney echoed what the two attorneys stated. No direct evidence of CPS’s 

decisionmaking is in the record.
5

handwritten journal that stated in part: “So night after night I would sleep in his 

room or he would sleep in mine and each time one of us would escape by 

morning.” After the hearing and after denying Gary’s objection to an interview of 

I.M.M., the associate judge interviewed I.M.M. in chambers with the amicus 

attorney present.

3 Thereafter, the associate judge made temporary orders that, 

among other things, restricted Gary’s possession of and access to the children, 

eliminated overnight visits, and enjoined the parties from allowing the children to 

have any contact with D.S. The temporary orders also gave Arlene the exclusive 

right to designate the children’s residence, terminated Arlene’s child-support 

obligation, and ordered that I.M.M. undergo counseling.

 

3

In the same time frame as the hearing before the associate judge, Gary sued 

the associate judge and the district judge in federal court. See Machetta v. 

Moren, No. 4:16-CV-2377, 2017 WL 2805192 (S.D. Tex. Apr. 13, 2017), 

adopted, 2017 WL 2805002 (S.D. Tex. June 28, 2017), aff’d, 726 F. App’x 

219 (5th Cir. 2018) (per curiam). The federal district court granted the two 

judges’ motions to dismiss, and the Fifth Circuit affirmed the federal district 

court’s award of attorney’s fees to the two judges on the ground that Gary’s 

suit was frivolous. 726 F. App’x at 221. In a separate federal suit, Gary’s 

wife and her two children sued the district judge, and that case likewise was 

dismissed on the judge’s motion. See Machetta v. Millard, No. 4:17-CV00571, 2018 WL 1172654 (S.D. Tex. Mar. 5, 2018). Gary also sued the 

district judge in state court under the Texas Religious Freedom Restoration 

Act for violating his religious rights, and the dismissal of that case was 

affirmed by this court. See Machetta v. Millard, No. 01-17-00857, 2018 WL 

5289336 (Tex. App.—Houston [1st Dist.] Oct. 25, 2018, pet. denied) (mem. 

op.). And not long before the final trial in this case, Gary filed an original 

proceeding for mandamus relief in this court in January 2017, which was 

denied. See In re Machetta, No. 01-17-00009, 2017 WL 343604 (Tex. 

App.—Houston [1st Dist.] Jan. 23, 2017, orig. proceeding) (mem. op.).
6

Gary then requested a de novo hearing on the temporary orders, and it was 

held over four days in October 2016. The trial court appointed Arlene as temporary 

sole managing conservator and gave her the exclusive right to designate the 

children’s residence, and Gary, as temporary possessory managing conservator,

was given supervised access and possession.

On October 26, 2016, the case was set for trial for January 18, 2017. Arlene, 

her attorney, and Gary’s attorney appeared for trial, but Gary did not appear; his 

attorney informed the trial court that Gary had left for Russia the day before on a 

business trip. The trial court denied Gary’s oral motions for continuance and for 

recusal, and a bench trial took place with Arlene as the only fact witness.

Arlene testified that Gary presented a danger to the children because he 

failed to acknowledge that his adult stepson D.S. had been “sleeping” with I.M.M. 

and that Gary had failed to take reasonable steps to protect I.M.M. from D.S.

Arlene stated that I.M.M. was attending counseling and was doing well in school; 

I.M.M. had been “focused, stable, and happy” since the trial court issued its 

temporary orders. Arlene testified that the children were now ages fourteen and 

twelve, that D.S. was still residing with Gary, and that neither of them should have 

any contact with D.S. She said that the alleged sexual conduct between I.M.M. and 

D.S. that had occurred for many months was a material and substantial change in 
7

circumstances4and that she believed that making the temporary orders final was in 

the best interest of both children.

Under questioning by the amicus attorney, Arlene reiterated that Gary had 

failed to acknowledge that there was an inappropriate relationship between I.M.M. 

and D.S. She stated that, since the temporary orders hearing in October, the 

children’s home life had been “pretty serene” and that the children were stable and 

focused on school. Arlene believed that visitation between the children and Gary 

should be supervised through the SAFE program.

Weeks later the trial court signed a final order with a finding that there had

been a material and substantial change in circumstances since the last order and 

that modification was in the children’s best interest. The final order found that 

awarding Gary a standard possession order was not in the children’s best interest, 

provided for only supervised visitation by Gary, and ordered him to pay $1,600.00 

in monthly child support. On Gary’s request, the trial court issued findings of fact 

and conclusions of law, and this appeal followed. Gary and Arlene had counsel in 

the trial court, but on appeal both are appearing pro se.

Analysis

Asserting twelve issues, Gary argues that this is a “civil rights appeal” 

raising constitutional issues pertaining to his parental rights. His issues are (1) the 

 

4 The record contains no direct evidence of an actual sexual relationship.
8

trial court lacked jurisdiction; (2) the trial court erred in not ordering arbitration; 

(3) the trial court erred in proceeding to trial with a pending motion for recusal; 

(4) the trial court violated due process in denying a hearing on Gary’s 

constitutional challenges; (5) the trial court violated the Open Courts provision in 

denying Gary’s constitutional claims and a hearing on Gary’s constitutional 

challenges; (6) the trial court erred in acting with “unbridled discretion;” (7) the 

trial court acted without authority in infringing on Gary’s and his children’s 

constitutional rights; (8) the trial court erred in appointing an amicus attorney; (9) 

the trial court erred in violating Gary’s and his children’s free exercise of religion; 

(10) the trial court erred in awarding Arlene child support; (11) the trial court erred 

in restricting Gary’s First Amendment rights; and (12) the trial court erred in 

conducting trial during a flooding event that prevented his attorney from having his 

trial evidence. We will address these issues by subject matter.

Jurisdictional and Procedural Issues

Jurisdiction. In his first issue, Gary contends that the trial court lacked 

subject-matter jurisdiction. On January 18, 2017, the day of the final trial, Gary 

filed a multifarious motion asserting, in part, that the trial court lacked 

“constitutional jurisdiction” because Arlene was seeking relief that violated Gary’s 

many alleged constitutional rights. Before trial started, Gary’s attorney informed 

the trial court that a “plea to the jurisdiction” had just been filed within the last 
9

hour, and the trial judge commented that she had “no notice” of it. Under this 

circumstance, we reject Gary’s contention that the trial court erred in failing to 

address his jurisdictional plea.

Regardless, subject-matter jurisdiction is essential to a court’s authority to 

decide a case, cannot be waived, and may be raised for the first time on appeal. 

Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–45 (Tex. 1993). 

We will therefore address Gary’s jurisdictional issue.

Gary first argues that because the children lacked standing in the 

modification suit, the trial court lacked subject-matter jurisdiction. Standing is a 

component of subject-matter jurisdiction. Id. at 444–45. Whether the children had 

standing is irrelevant; Gary and Arlene had and have standing in this SAPCR suit.5

See TEX. FAM. CODE §§ 102.003(a)(1), 156.002(a, b). Therefore, the trial court had 

subject-matter jurisdiction. We reject Gary’s standing argument.

Gary next argues that it is a jurisdictional prerequisite that the trial court 

judge be neutral and impartial and that the trial judge “failed to demonstrate the 

neutrality and impartiality necessary to establish a legitimate trial court.” He points 

to no applicable authority in support of his argument, and we reject it.

Issue one is overruled.

 

5

In their live petitions, both Gary and Arlene asserted that the 310th District 

Court had continuing, exclusive jurisdiction of the suit.
10

Recusal. In issue three, Gary asserts that the trial court erred by proceeding 

to trial after he had filed a motion for recusal. 

A motion for recusal must be written and filed with the court clerk. See TEX.

R. CIV. P. 18a(a)(1) (providing that motion is made “by filing a motion with the 

clerk of the court in which the case is pending,” and it “must be verified”). Also, a 

motion for recusal “must not be filed after the tenth day before the date set for trial 

or other hearing unless, before that day, the movant neither knew nor reasonably 

should have known: (i) that the judge whose recusal is sought would preside at the 

trial or hearing; or (ii) that the ground stated in the motion existed.” TEX. R. CIV. P.

18a(b)(1)(A). “If a motion is filed before evidence has been offered at trial, the 

respondent judge must take no further action in the case until the motion has been 

decided, except for good cause stated in writing or on the record.” TEX. R. CIV. P.

18a(f)(2)(A). “Unless a written motion is filed, the rules obligating a trial court to 

refer the motion do not apply.” In re A.V., 350 S.W.3d 317, 321 (Tex. App.—San 

Antonio 2011, no pet.).

Before the January 18, 2017 trial began, Gary’s attorney asserted an oral 

motion for recusal without articulating any grounds. The trial judge responded that 

a motion for recusal has to be written and that if there was “a written motion for 

recusal, I would certainly consider it.” Arlene’s attorney and the amicus attorney 
11

objected to the oral motion for recusal, and the trial court sustained the objection 

and refused to consider the oral motion for recusal.

Gary’s written but unverified motion for recusal was e-filed at 11:38 a.m. on 

January 18, 2017. Without a supporting citation to the record, Gary asserts in his 

brief that his written motion for recusal was e-filed before testimony began. The 

reporter’s record for the trial does not state the time that evidence began to be 

offered; the scheduling order indicates that the trial setting was for 9:00 a.m. on 

January 18, 2017. Regardless, at no point before, during, or after trial did Gary’s 

attorney notify the trial court that he was having his staff e-file a motion for recusal 

that day, which reflects a lack of candor. The record also does not reflect that, at 

any time during the trial, the court clerk notified the trial judge of the filed motion 

for recusal. See TEX. R. CIV. P. 18a(e)(1). On January 25, 2017, Gary filed a 

supplemental motion for recusal.

Within three business days after the written motion for recusal was filed, the 

trial judge declined to recuse herself voluntarily and referred the motion to the 

regional presiding judge. See TEX. R. CIV. P. 18a(f)(1). The regional presiding 

judge denied Gary’s motions for recusal on February 3, 2017 and also denied 

Gary’s motion for reconsideration on February 15, 2017. The trial court did not 

sign the final order being appealed until March 7, 2017, after Gary’s motions for 

recusal had been denied. See In re Rio Grande Valley Gas Co., 987 S.W.2d 167, 
12

179 (Tex. App.—Corpus Christi 1999, orig. proceeding) (“Any order other than an 

order of recusal or referral, entered by a court after a proper motion to recuse is 

entered is void.”). Finding no error by the trial court and that the order being 

appealed is not void, we overrule issue three.

Arbitration. Gary asserts in his second issue that the trial court lacked 

jurisdiction because it did not order the parties to arbitration.6 The parties’ divorce 

decree contains a provision requiring mediation of any controversy over the terms 

and conditions of conservatorship, possession, or support, and if mediation was not 

agreed to and the controversy could not be directly settled, then binding arbitration 

of the controversy was required. Arlene filed a motion to compel mediation and 

arbitration, and the trial court ordered the parties to mediation. Arlene then filed a 

motion to compel arbitration, asserting that the parties could not agree on a 

mediator. The record does not reflect a hearing or ruling on Arlene’s motion to 

compel arbitration.

Gary did not file a motion to compel arbitration. Just before trial began, his 

attorney made only vague references to the arbitration provision and to Arlene’s 

motion, and he did not specifically request that arbitration be compelled. By failing 

 

6 A trial court does not lack jurisdiction if it fails to order parties to 

arbitration; Gary does not identify any authority to support his contrary 

assertion.
13

to move to compel arbitration and to obtain a ruling, Gary has failed to preserve his 

second issue for appellate review. TEX. R. APP. P. 33.1(a).

Amicus Attorney. In issue eight, Gary complains that the trial court violated 

due process, due course of law, and section 107.021 of the Family Code in 

appointing an amicus attorney. 

At the conclusion of the hearing on Arlene’s emergency motion, the 

associate judge stated that he was going to appoint an amicus attorney. Gary

asserts that his attorney objected to an appointment of an amicus attorney at that 

time, but the record reflects that his attorney did not specifically object to an 

appointment; his only response in the nature of an objection was to request that 

someone other than the previous amicus attorney be appointed, and the associate 

judge did appoint a different amicus attorney.

7 By failing to make a specific 

objection to the appointment of any amicus attorney at this hearing, Gary failed to 

preserve the issue for appellate review. See TEX. R. APP. P. 33.1(a)(1)(A) (stating 

that objection be made “with sufficient specificity to make the trial court aware of 

the complaint”).

 

7 Gary’s attorney stated: “I know the Court’s probably going to appoint an 

amicus. I would prefer there not be because this has - - this is so convoluted. 

I just want to make sure that we make sure - - there was a previous amicus 

and we want to make sure it’s not the same one.” The trial court did not 

appoint the same amicus attorney.
14

At the July 22, 2016 hearing on Gary’s motion to dissolve the TRO, Gary’s 

attorney objected to the appointment of an amicus attorney, stating that it was an 

improper invasion of privacy and that Family Code section 107.021 was 

unconstitutional as applied on the ground that an amicus attorney was unnecessary 

to protect the children because CPS had already done its investigation. Gary did 

not, however, seek or obtain a ruling on his objections, and he has therefore failed 

to preserve these objections for appellate review. See TEX. R. APP. P. 33.1(a)(2)(A) 

(requiring the record to show that trial court ruled on objection). Further, these 

objections do not comport with the complaints in Gary’s eighth issue and are 

therefore not before us. See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 

470 S.W.3d 636, 651 (Tex. App.—Dallas 2015, no pet.). 

In his August 5, 2016 motion for temporary orders and temporary 

injunctions, Gary requested the release of the amicus attorney without stating any 

grounds. This general objection does not preserve error for appellate review. See

TEX. R. APP. P. 33.1(a)(1)(A); Lege v. Jones, 919 S.W.2d 870, 874 (Tex. App.—

Houston [14th Dist.] 1996, no writ).

And in his August 9, 2016 response to Arlene’s emergency motion, Gary 

requested a “declaratory statement” that any appointment of an amicus attorney 

“must meet 4th and 14th Amendment fundamental rights requirements,” alleged

that Arlene requested the appointment of an amicus attorney “to conduct unlawful 
15

and warrantless additional investigations,” and requested that the trial court 

dissolve the order appointing the amicus attorney and dismiss the amicus attorney 

because he is presumed fit and the appointment of an amicus attorney is an 

unreasonable seizure of his money to pay for an amicus attorney and places an 

undue burden on the parent-child relationship. Gary did not, however, obtain a 

ruling on his objections, and he has therefore failed to preserve these objections for 

appellate review. See TEX. R. APP. P. 33.1(a)(2)(A) (requiring the record to show 

that trial court ruled on objection). Further, these objections do not comport with 

Gary’s eighth issue and are therefore not before us.

Gary’s eighth issue asserts that the trial court’s appointment of an amicus 

attorney violated due process and due course of law. These arguments were not 

raised in the trial court, and constitutional complaints cannot be raised for the first 

time on appeal. See In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005); In re C.M.J., 

— S.W.3d —, — n.1, 2019 WL 1029305, at *4, n.1 (Tex. App.—Houston [1st 

Dist.] Mar. 5, 2019, no pet. h.).

In a July 20, 2016 multifarious motion entitled “Petitioner’s Emergency

Motion to Dissolve the Temporary Restraining Order and for a New Temporary 

Restraining Order and Request for Emergency Hearing for Temporary Orders,” 

Gary requested that the amicus attorney be discharged solely because of the 
16

unnecessary expense and undue financial burden on him. After a hearing, the trial 

court denied the motion. Gary has preserved this issue for appellate review.

Section 107.021 is entitled “Discretionary Appointments” and provides that 

in a SAPCR suit in which the best interests of a child are at issue, the court “may 

appoint” an amicus attorney. TEX. FAM. CODE § 107.021(a); In re R.H.W. III, 542 

S.W.3d 724, 743 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (section 107.021 

authorizes “discretionary appointment” of amicus attorney in SAPCR suit 

involving best interests of a child). The Family Code defines an amicus attorney as 

“an attorney appointed by the court in a suit, other than a suit filed by a 

governmental entity, whose role is to provide legal services necessary to assist the 

court in protecting a child’s best interests rather than to provide legal services to 

the child.” TEX. FAM. CODE § 107.001(1); see In re McDaniel, 408 S.W.3d 389, 

399 n.2 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding) (“the amicus 

attorney’s role is limited by statute to assisting the trial court with protecting the 

best interests of the child”). An amicus attorney appointed under Chapter 107 does 

not represent the child or either parent. See TEX. FAM. CODE § 107.001(1); Zeifman 

v. Nowlin, 322 S.W.3d 804, 808–09 (Tex. App.—Austin 2010, no pet.) (citing 

O’Connor v. O’Connor, 245 S.W.3d 511, 515 (Tex. App.—Houston [1st Dist.] 

2007, no pet.)). “The amicus attorney is appointed specifically to assist the 

court.” O’Connor, 245 S.W.3d at 515; see McDaniel, 408 S.W.3d at 399 n.2. The 
17

Family Code describes the many duties of an amicus attorney. See id. §§ 107.003, 

107.005. Those duties include interviewing the parties and participating in the 

litigation to the same extent as an attorney for a party. Id. § 107.003(a)(1)(A)(iii), 

(F). 

We review a trial court’s appointment of an amicus attorney or its denial of a 

motion to remove an amicus attorney for an abuse of discretion. Cf. In re Scheller, 

325 S.W.3d 640, 644–45 (Tex. 2010) (orig. proceeding) (reviewing appointment of 

guardian ad litem under section 107.021 for abuse of discretion); Gonzalez v. 

Gonzalez, 26 S.W.3d 657, 658 (Tex. App.—San Antonio 2000, no pet.) (reviewing 

denial of motion to remove appointed attorney ad litem under chapter 107 for 

abuse of discretion). 

The court is not required to conduct a hearing before appointing an amicus 

attorney. Cf. Gonzalez, 26 S.W.3d at 658. In determining whether to appoint an 

amicus attorney, the trial court “shall (A) give due consideration to the ability of 

the parties to pay reasonable fees to the appointee; and (B) balance the child’s 

interests against the cost to the parties that would result from an appointment by 

taking into consideration the cost of available alternatives for resolving issues 

without making an appointment; . . .” TEX. FAM. CODE § 107.021(b)(1). 

It is undisputed that one of the issues addressed in this modification suit 

involved the children’s best interests. The associate judge appointed the amicus 
18

attorney soon after the hearing on Arlene’s emergency motion, and in that hearing, 

the parties’ counsel informed the associate judge that each parent’s annual income 

was over $200,000. Based on these factors, we cannot say that the court abused its 

discretion in appointing the amicus attorney.

For the above reasons, we overrule issue eight.

Constitutional Issues

Pretrial hearing on constitutional challenges. In issue four, Gary asserts 

that the trial court violated due process and due course of law by denying him a 

hearing on his constitutional challenges to various Family Code provisions and 

judicial actions. His brief further asserts that Arlene’s pleadings are deficient.

Before the trial began, Gary’s attorney made numerous constitutional 

objections to the proceeding, and the trial court overruled those objections. To the 

extent that issue four is premised on the denial of a hearing on those objections, we 

overrule it because the trial court heard and ruled on those objections.

Gary had previously filed two motions requesting the trial court to rule on 

his “equal protection rights at issue” and on “what process” was due him given his 

various alleged constitutional rights at issue in the case and seeking declaratory 

relief thereon. Gary does not point to anywhere in the record where either he 

requested a hearing on these motions and his request was denied or he objected to 

the trial court’s refusal to hear his motions upon a proper request. Gary has 
19

therefore failed to preserve this aspect of his fourth issue for appellate review. TEX.

R. APP. P. 33.1(a); see id. 33.1(a)(2)(B) (requiring the record to show that trial 

court “refused to rule on the request, objection, or motion, and the complaining 

party objected to the refusal”).

Within issue four, Gary also contends that Arlene’s pleadings failed to 

provide notice of the allegations that resulted in the trial court’s final order. “The 

purpose of pleadings is to define the issues at trial.” Garvey v. Vawter, 795 S.W.2d 

741, 742 (Tex. 1990). A pleading is sufficient if it gives the opposing party 

adequate information to enable him to prepare a defense. Roark v. Allen, 633 

S.W.2d 804, 800 (Tex. 1982).

This modification suit began with Gary filing a petition to modify that 

sought to enjoin Arlene from discussing educational decisions with the children 

and requested a judicial determination on whether Arlene was a risk for the 

international abduction of the children. Arlene filed a counter-petition seeking, 

among other things, the joint right to make educational decisions, permission to 

travel with the children internationally during her periods of possession, authority 

to select a counselor or therapist for the children, and a decrease in child support. 

Thereafter, Arlene filed her emergency motion and supporting affidavit, and the 

parties went through hearings on the emergency motion and Gary’s motion to 
20

dissolve and temporary orders hearings before the associate judge and then the 

district judge. 

Additionally, the amicus attorney filed an answer that raised Gary’s parental 

fitness by requesting the trial court to determine what would be in the children’s 

best interest, including the emotional and physical needs of the children now and in 

the future; the emotional and physical danger to the children now and in the future; 

the parenting ability of each person seeking managing conservatorship of the 

children; the stability of the home of each person seeking managing 

conservatorship of the children and any excuse for the acts or omissions of each 

person seeking managing conservatorship of the children. The amicus attorney also 

filed a response to Gary’s request for a de novo hearing on the temporary orders 

and detailed the allegations pertaining to Gary’s handling of the relationship 

between I.M.M. and D.S.

The amicus attorney’s pleadings, Arlene’s emergency motion, the temporary 

orders hearings, and the temporary orders all gave Gary sufficient notice of the 

allegations and the matters to be tried at the final trial of this modification suit. See 

In re A.D., 474 S.W.3d 715, 730 (Tex. App.—Houston [14th Dist.] 2014, no pet.) 

(holding that trial court did not err in granting relief not requested in original 

petition where allegations in petitioner’s affidavits and other documents filed with 

trial court, together with trial court’s temporary orders granting complained-of 
21

relief, “provided fair notice” to opposing party). Furthermore, there is a 

“diminished significance of technical pleading rules” in modification suits where 

the principal concern is the children’s best interest, King v. Lyons, 457 S.W.3d 122, 

129–30 (Tex. App.—Houston [1st Dist.] 2014, no pet.), and the trial court has 

discretion to place conditions on matters of possession even when the pleadings do 

not request such conditions. In re W.B.B., No. 05-17-00384-CV, 2018 WL 

3434588, at *6 (Tex. App.—Dallas July 17, 2018, no pet.) (mem. op.); MacCallum 

v. MacCallum, 801 S.W.2d 579, 586 (Tex. App.—Corpus Christi 1990, writ 

denied) (“Pleadings are of little importance in child custody cases and the trial 

court’s efforts to exercise broad, equitable powers in determining what will be best 

for the future welfare of a child should be unhampered by narrow technical 

rulings.”). 

Last, we conclude that, because Gary never timely objected to Arlene’s 

alleged pleading deficiency and because of his and his attorney’s active 

participation in all of the hearings and the final trial, the issues of conservatorship 

and possession based on the allegations of abuse and neglect were tried by consent. 

See King, 457 S.W.3d at 127 (“‘A party’s unpleaded issue may be deemed tried by 

consent when evidence on the issue is developed under circumstances indicating 

both parties understood the issue was in the case, and the other party failed to make 

an appropriate complaint.’”) (quoting Case Corp. v. Hi-Class Bus. Sys. of Am., 
22

Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005, pet. denied)); Guillory v. 

Boykins, 442 S.W.3d 682, 690–91 (Tex. App.—Houston [1st Dist.] 2014, no pet.). 

We reject Gary’s pleadings-insufficiency argument.

For the above reasons, we overrule issue four.8

Open Courts. In issue five, Gary asserts that the trial court erred in denying 

him access to the courts by denying his constitutional claims and his claims for 

declaratory relief. The heading in Gary’s brief is entitled “Open Courts 

Provision.”9 He states that he filed three (he actually filed four) motions for 

declaratory relief seeking declarations on due process regarding the substantive 

 

8

In his surreply brief, Gary, citing Family Code subsection 102.008(b)(10), 

asserts that Arlene’s alleged pleading deficiency deprived the trial court of 

jurisdiction. That subsection requires a petition to include “a statement 

describing what action the court is requested to take concerning the child 

and the statutory grounds on which the request is made.” Gary does not 

point to any authority that this subsection is jurisdictional, and we disagree 

that it is jurisdictional.

9 The Texas Constitution provides that “[a]ll courts shall be open, and every 

person for an injury done him, in his lands, goods, person or reputation, shall 

have remedy by due course of law, . . .” TEX. CONST. art. I, § 13. The Open 

Courts provision affords three distinct protections: (1) the courts must be 

open and operating; (2) citizens must have access to those courts unimpeded 

by unreasonable financial barriers; and (3) meaningful legal remedies must 

be afforded to citizens. Alpine Indus., Inc. v. Whitlock, 554 S.W.3d 174, 181

(Tex. App.—Fort Worth 2018, pet. filed) (citing Tex. Ass’n. of Bus., 852 

S.W.2d at 448); Cronen v. Ray, No. 14-05-00788-CV, 2006 WL 2547989, at 

*5 (Tex. App.—Houston [14th Dist.] Sept. 5, 2006, pet. denied) (mem. op.). 

To claim an Open Court’s violation, a party must raise a fact issue 

establishing that he did not have a reasonable opportunity to be heard. 

Stockton v. Offenbach, 336 S.W.3d 610, 618 (Tex. 2011).
23

and procedural rights at issue and on the equal protection rights at issue. He then 

contends that the trial court committed error because it “summarily dismissed the 

motions without reaching the merits.” 

As we noted above, for Gary’s first two motions for declaratory relief, he did 

not point to anywhere in the record where either he requested a hearing on these 

motions and his request was denied or he objected to the trial court’s refusal to 

hear his motions upon a proper request. He therefore failed to preserve his 

complaint for appellate review. The same is the case for his other two motions for 

declaratory relief. See TEX. R. APP. P. 33.1(a), 33.1(a)(2)(B). Also, Gary’s brief 

lacks citations to the record to support his various assertions that the trial court 

dismissed or denied his motions for declaratory relief, and his brief lacks citations 

to authorities and an appropriate legal argument on his Open Courts claim. See

TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for 

the contentions made, with appropriate citations to authorities and to the record.”).

The only cited authority on Gary’s Open Courts claim is the Open Courts provision

itself.

Because Gary failed to preserve his complaints for appellate review, and 

because he has inadequately briefed his Open Courts claim, we conclude that issue 

five is waived. See Dauz v. Valdez, — S.W.3d —, —, 2018 WL 4129826, at *5 

(Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.); Izen v. Comm’n for 
24

Lawyer Discipline, 322 S.W.3d 308, 321–22 (Tex. App.—Houston [1st Dist.] 

2010, pet. denied).

“Unbridled discretion.” Gary’s sixth issue asserts: “The trial court errs 

where it presumes broad authority to infringe fundamental First Amendment rights 

based on nothing more than the trial court’s own opinion without conducting an 

adjudication of rights, without protecting substantive rights, without providing fair 

proceedings, and as an act of unbridled discretion.”

As we have noted, an appellant’s brief “must 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). Gary’s brief on this issue fails to meet this 

requirement. It does not identify a trial-court ruling that he complains of, and it 

lacks any citations to the record. And to the extent that we can ascertain a 

complaint, it appears to be that the Family Code provisions applicable to 

modification suits are unconstitutional because of the best-interest-of-the-child 

standard and the trial court’s discretion in adjudicating such suits. The appellant’s 

brief does not point to any specific Family Code provisions and is therefore 

inadequate. Gary’s reply brief does include a citation to section 153.002 of the 

Family Code,10 but it then entirely fails to engage the legal analysis that would be 

 

10 Section 153.002 provides that the “best interest of the child shall always be 

the primary consideration of the court in determining the issues of 

conservatorship and possession of and access to the child.” Gary’s briefs
25

required to determine whether the statute is unconstitutional.

11 Because issue six is 

inadequately briefed, we conclude that it is waived.

 

omit any discussion of the Texas cases that have found this statute, the 

modification statute, and similar orders to be constitutional. See In re J.R.D., 

169 S.W.3d 740, 744 (Tex. App.—Austin 2005, pet. denied) (holding bestinterest statute to be constitutional); In re M.N.G., 113 S.W.3d 27, 33–35 

(Tex. App.—Fort Worth 2003, no pet.) (holding that modification statute 

was not too vague or overbroad to violate parent’s due-process rights); In re 

R.D.Y., 51 S.W.3d 314, 324 (Tex. App.—Houston [1st Dist.] 2001, pet. 

denied) (holding that order limiting mother’s access and possession did not 

violate her constitutional rights to due process and equal protection). Indeed, 

the Austin Court noted that “the Supreme Court has expressly recognized 

that the “best interest of the children” is the proper standard for resolving 

disputes between parents on custody issues. Reno v. Flores, 507 U.S. 292, 

303–04 [] (1992).” J.R.D., 169 S.W.3d at 744; see also Palmore v. Sidoti, 

466 U.S. 429, 433 (1984) (“In common with most states, Florida law 

mandates that custody determinations be made in the best interests of the 

children involved. The goal of granting custody based on the best interests of 

the child is indisputably a substantial governmental interest for purposes of 

the Equal Protection Clause.”) (citation omitted).

11 Gary’s three briefs (his opening brief, reply brief, and surreply brief) cite 

and discuss only one Texas case on this issue, and in doing so, misstate that 

case. Gary argues that Grigsby v. Coker, 904 S.W.2d 619 (Tex. 1995) (orig. 

proceeding) stands for the proposition that a trial court’s “viewpoint 

regarding the best interest of a child is insufficient justification to infringe 

fundamental rights.” It does not. Grigsby involved a trial court’s gag order 

that prevented the parents from communicating about each other in a 

derogatory manner and that was entered without formal motion, notice, and 

evidentiary hearing. Id. at 620–21. The supreme court held that the order 

was overly broad and that, over one parent’s argument that procedural 

protections of notice and a hearing are dispensable in family cases, notice, a 

hearing, and specific findings are required to issue a gag order in family 

cases before imposing a prior restraint on speech. Id. (citing Davenport v. 

Garcia, 834 S.W.2d 4, 9 (Tex. 1992)). The court noted that, while a trial 

court in a family case has “broad powers,” it is not authorized “to invade 
26

Constitutional Guarantees. In his seventh issue, Gary asserts that the trial 

court did not have authority to infringe his and his children’s constitutional rights. 

His brief, however, is an unfocused discussion of various constitutional rights

without citations to the record, and it then recycles the same arguments made in 

issues four, five, and six on the trial court’s alleged denial or refusal to address his 

declaratory-judgment motions:

Gary sought pre-trial answers to outstanding questions of law 

essential to establishing procedural and substantive rules of due 

process and was denied. Due process is violated where essential

questions of law are raised but go unanswered and asks this court to

answer these essential questions of law as a pre-requisite for 

determining whether TC [trial court] violated Gary’s or the children’s 

rights.

. . . .

[I]t is error to presume judicial authority to infringe constitutional 

rights without affording a hearing to challenge that authority, even 

presuming rational basis review.

. . . .

[Trial court] errs in denying substantive rights analysis, 

substantive due process/course rights analysis, procedural due 

process/course rights analysis, and equal protection rights analysis 

prior to trial, as requested in the declaratory motions.

As discussed above on issues four, five, and six, Gary has failed to preserve 

this complaint for appellate review. See TEX. R. APP. P. 33.1(a), 33.1(a)(2)(B). 

 

constitutional guarantees,” but it “could have adopted an order which 

complied with Davenport, but it failed to do so.” Id. at 621.
27

First Amendment rights. Because issues nine and eleven are related, we 

address them together. Issue nine asserts:

The trial court erred when it substantially burdened [Gary’s] right and 

duty to prepare his children for “additional obligations” which 

includes “inculcation of religious beliefs”, where it denied the 

association rights necessary for religious communication, where it 

contracted the realm of religious instruction available to the children, 

and where it prevented Gary and children from worshiping together as 

a family.

Issue eleven asserts:

The trial court erred by issuing custody and possession orders that 

limit the time, place, and manner of protected speech, worship, and 

association between Gary and his children as content-based 

restrictions where the trial court justified the restrictions based on a 

difference of opinion between the judge and Gary regarding belief of 

what is in the children’s best interests.

These two issues generally contend that the trial court’s final order infringes 

on Gary’s and the children’s asserted First Amendment rights.12 As we have 

already noted several times, to preserve these issues for appellate review, Gary was 

required to make his constitutional challenges in the trial court and either obtain a 

ruling or object to the trial court’s refusal to rule. See TEX. R. APP. P. 33.1(a), 

33.1(a)(2)(B). None of Gary’s several briefs point to where in the voluminous 

 

12 The Family Code provides: “The terms of an order that denies possession of 

a child to a parent or imposes restrictions or limitations on a parent’s right to 

possession of or access to a child may not exceed those that are required to 

protect the best interest of the child.” TEX. FAM. CODE § 153.193. It also 

provides: “The court may limit the rights and duties of a parent appointed as 

a conservator if the court makes a written finding that the limitation is in the 

best interest of the child.” Id. § 153.072.
28

record he preserved these issues for appellate review, and constitutional complaints 

may not be raised for the first time on appeal. K.A.F., 160 S.W.3d at 928; C.M.J., 

— S.W.3d at — n.1, 2019 WL 1029305, at *4, n.1.

Within issue nine, Gary asserts as a “defense” section 110.004 of chapter 

110 of the Civil Practice and Remedies Code, known as the Texas Religious 

Freedom Restoration Act (TRFRA).13 See Barr v. City of Sinton, 295 S.W.3d 287, 

289 (Tex. 2009). Section 110.004 provides: “A person whose free exercise of 

religion has been substantially burdened in violation of Section 110.003 may assert 

that violation as a defense in a judicial or administrative proceeding without regard 

to whether the proceeding is brought in the name of the state or by any other 

person.” TEX. CIV. PRAC. & REM. CODE § 110.004.

In an undated notice letter (filed on January 30, 2017) sent under section 

110.006 to the trial court judge, Gary asserted that the trial court’s Temporary 

Orders substantially burdened his free exercise of religion with his children.14 The 

trial court responded with a March 14, 2017 order that required the parties (1) to 

meet and confer in person toward reaching an agreement that addressed the 

 

13 He also again asserts that the trial court acted “in excess” of Arlene’s 

pleadings, but we overruled that complaint in our discussion of issue four.

14 Gary eventually sued the trial court judge under TRFRA, and this court held 

that the trial court in that case properly dismissed the suit because of judicial 

immunity. See Machetta v. Millard, No. 01-17-00857, 2018 WL 5289336, at 

*2 (Tex. App.—Houston [1st Dist.] Oct. 25, 2018, pet. denied) (mem. op.).
29

concerns in Gary’s letter, (2) to inform the court of any specific areas of 

disagreement and whether mediation would be useful, (3) to file a summary setting 

out their compliance with the order and to file any motions addressing alternative 

methods to reach an agreement, and (4) to notify the court if they could not reach 

any agreement, after which the court would set the matter for hearing. The order 

concluded by stating that the court may subsequently enter an order fashioning a 

remedy to address the concerns in Gary’s letter if supported by applicable 

precedent and the evidence and argument presented at the hearing.

We conclude that Gary has failed to preserve his TRFRA defense for 

appellate review. First, his briefs contain no citations to the record where he 

complied with the trial court’s March 14, 2017 order, and we therefore presume 

that he did not comply. See Castille v. Serv. Datsun, Inc., No. 01-16-00082-CV, 

2017 WL 3910918, at *13 (Tex. App.—Houston [1st Dist.] Sept. 7, 2017, no pet.) 

(mem. op.) (stating that appellate court has no duty or right to perform independent 

review of record to determine whether there was error). He therefore presents 

nothing for us to review, and he may not present his TRFRA defense for the first 

time on appeal.

To the extent that Gary purports to challenge the sufficiency of the evidence

supporting the trial court’s finding (No. 15(d)) that Gary “failed to take steps to 

protect the safety and welfare of the child once the outcry was made,” which he 
30

mentions in two sentences within issue eleven, Gary has failed to adequately brief 

the issue. His brief does not assign the sufficiency of the evidence as an issue 

presented for review, it does not discuss the standard of review for sufficiency of 

the evidence with citation to authorities, and it does not address all of the relevant 

evidence in the reporter’s record with record citations.15 See TEX. R. APP. P. 

38.1(f), (g), (i).

For the above reasons, we overrule issues nine and eleven.

 

15 If we were to address Gary’s sufficiency complaint, we would find that the 

trial court did not abuse its discretion in its finding. See Trammell v. 

Trammell, 485 S.W.3d 571, 575 (Tex. App.—Houston [1st Dist.] 2016, no 

pet.). Arlene testified that Gary presented a danger to the children because 

he failed to acknowledge that D.S. had been “sleeping” with I.M.M. and that 

he had failed to take reasonable steps to protect I.M.M. from D.S. Arlene 

testified that the children were now ages fourteen and twelve, that D.S. was 

still residing with Gary, and that neither of them should have any contact 

with D.S. She said that the sexual conduct between I.M.M. and D.S. that had 

occurred for many months was a material and substantial change in 

circumstances and that she believed that making the temporary orders final 

was in the best interests of both children. Additionally, because Gary has 

not challenged finding 19, it is binding. See McGalliard v. Kuhlmann, 722 

S.W.2d 694, 696 (Tex. 1986). That finding states: 

Sufficient evidence, including evidence supporting the above 

findings, supports imposition of limitations and restrictions 

upon Petitioner’s periods of possession and access with the 

children. The terms and provisions for supervised access by 

Petitioner with the children as contained in the final judgment 

are in the best interest of the children and represent the 

minimum orders which are required to protect the best interest 

of the children.
31

Unbriefed issues. Issue ten, which alleges insufficient evidence to support 

the award of child support to Arlene, and issue twelve, which asserts error by the 

trial court in conducting the trial during alleged flooding that prevented Gary’s 

attorney from having his “evidence files” at trial, are unbriefed. These issues are 

therefore waived. TEX. R. APP. P. 38.1(i); Dauz, — S.W.3d at —, 2018 WL 

4129826, at *5; Izen, 322 S.W.3d at 321–22.

Conclusion

We affirm the judgment of the trial court. All pending motions are dismissed 

as moot.

Richard Hightower

Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.