## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00238

- CV

___ ________________________

On Appeal from the 16th District Court Denton Co unty, Texas Trial Court No. 21

- 6778

- 16
Before Womack, Wallach, and Walker, JJ. Memorandum Opinion by Justice Walker 

### I N THE 

### I NTEREST OF 

### J.G., A 

### C HILD2 MEMORANDU M OPINION Appellant L.C. (Mother) brings th is restricted appeal agai nst Appellee J.G. (Father) regarding an orde r awarding Father sole managing conservatorship of their
child J.G. (Janet). 1 Mother conten d s that the evidence was lega lly insufficient t o (1) sup port th e entry of a post

- answer default judgment, (2 ) show t hat sh e participated
in the hearing that resulted in the final order, and (3) show that F a ther gave her notice

o f the hearing on his motion for default judgme nt
. We overrule all thre e issues.
Alt hough n ot desi g nated as an issue in Mother ’ s brief , she al so com plains about
the award of attorney ’ s fe es through trial

. Father con cedes that he failed to prove up the award of both trial and appellate att orney ’ s fees and, therefore, both should be

v a c ate d

. Bas ed on Mother ’ s complaint a nd Father ’ s concession regarding the award of attorney ’ s fees , w e m odify the trial court ’ s order to vacate the award of both tri al and appe llat e attorney ’ s fees , and we affirm the order as modified.
I. BACKGROUND
Fathe r fi led in Texas on A ugust 10, 2021 , an “ Original Petition in Suit Affecting the Parent

– C hild Relat

ionship , ” and on Aug ust 2 4, 2021, he filed a

su pplement al pet

i tion

. T he child who wa s the subject of the sui t was n i ne

- year old Jan e t
. Father acknowledged that Mother reside d in South Carolina

. Acco rding to

1 We u se an ali as to identify the child, and we identify fa mily members by their relationship to her. See Tex. Fam. Code Ann. § 10 9.002(d); Tex. R. Ap p. P. 9.8(b)(2).3

Father ’ s supporting affi davit, he and Mother were Janet ’ s biological parents , but he
d id not assert that he and M other had ever been married. Regarding j urisdiction, F ather alleged that “[n] o court ha [ d] continuing jurisdiction of this suit or of the c hild the subject of this suit ” and t hat “[t] his Court
ha [d] jurisdiction of this matter un der the Texas Family Code [ S] ec tion 152.204. ” By relying o n Section 152.2 04, Father was implicitly acknowledging t ha t T exas was not Jan et ’ s home st ate 2 and ex pressly a cknowledg ing that any jurisdiction tha t the trial

court asserted would be based on a temporary emergency . Se e Tex. Fam. Code Ann. § 152. 204(a), (b)

. 3 According to Father ’ s affidavit , Janet had arrived in T ex as about six
week s earl i er, on July 1, 2021.

2 Regar di ng a child ’s “home state , ” the Texas Family Code provides , ( 7) “Home state ” means the state in wh ich a child lived with a parent or a perso n act

in g as a parent for at least six consecutive months immediately bef

ore the commencement of a child custo d y proce ed i ng. In the case of a child less than six months of age, the term means the state i n which t he child lived from birth with a parent or a pers on acting as a p arent. A period of temporary absence of a parent o r a person acting as a p arent is part of the per iod.
T e x. Fam. Code Ann. § 152.102(7).

3 I n pertinent part, Se ction 152. 204 p rovide s , § 152.2 04. Temporary Emergency Jurisdiction ( a) A court of this state h as te mporary emergency jurisd iction if the child is p resent in this state and the child h a s been aba ndoned or it is necessary in an emergency to protec t the child because the child, or a4

Within his petition , Father requested a temporary restraining o rder, tem p ora ry orders , temporary injunctions , and a permanent injunction

. Thus, Father anticipated
th at the trial court ’ s temporary emerge ncy jurisdiction w ould eve ntually evolve in to exclusive continuing jurisdiction

. See id. § 152.202(b). Section 152.204 provi des for
temp ora ry emergency j uris dic tion becoming ex clusive continuing jurisdiction under

cer tain circumstances

. See id. § 152.20 4 (b ).
Father ’ s original petition was served on Mo ther on August 12 , 2021 , and the

return of service was filed on August 16, 2021. Mothe r does not dispute that she was

serve d on August 12, 2021. The citation warned Mother tha t a default judgment might be tak en against her if she di d not file an answer

. 4

sibli ng or parent of the child, is subjected to or th rea tened with mi st rea tment or abuse. ( b) If t here is no previous chil d custody determination that is enti t led to be enforced under this chapter and a child custody pr oceeding has not been commenced in a court of a state having jurisdiction under Sect ions 152. 201 through 152.20 3, a child custody determination made under this section remains in effect until an o rder is ob tained from a court of a state having jurisdiction under Sections 152.2 01 through 152.203. I f a child custody proceeding has not been or i s not commenced in a co urt of a state having jurisdiction under Section s 152.201 through 152.203, a child c u stody d ete rmination made under this section becomes a final determination, if it so provide s and this sta te becomes the home state of the child.
T ex . Fam . Code Ann. § 152. 204(a), (b).

4 Specifically, the citation provi de d,5

Mother was also served with a notice sta tin g that the tri al court had granted a

tem porary re st raining order when Father presented his petitio n and that the trial court
had set a he aring for 1:30 p.m. on Aug us t 23, 20 21 , at which Mother could “ show

cause why [the ] injunctio n/ restraining order sho uld not be grante d upon such
P etition/Appli cation effe ctive unti l Final Order/De cree in such suit. ” 5
Moth er was also ser

ved with a notice of a hearing set for 1 :30 p.m . on August 23, 2021 , on Fa ther ’ s petition

. Twenty day s a fte r Father filed his original petition , o n August 30 , 2021, the trial court sig ned t emporary orders

. The trial court set out the case ’ s procedural pos ture and substantively addressed F ather ’ s and Mot h er ’ s conservatorship and rights of
p oss ession

. Pr oced urally, t he order recit es that on August 30, 202 1, it he ard Fat her ’ s

“ motion for tem porary orders , ” which contextually refers to F a ther ’ s request fo r temporary orders in hi s petition, and within the order, the trial court twic e i nd icates
that it heard evidence. T he order states that Mother, “ although duly and properly

N otice to defendant: You have bee n sued. You may employ an attorney. If you, or your attorney, do not file a writte n answer w ith the cle rk who issued this citation by 10:00 a.m. on t he fi rst Monday following the expiration of twenty days after you were ser ved this citation and petition,
a default ju dgment may be taken against you.

5 The record does not c on tain a temporary re str ain ing order , but the date s et for the show c aus e hea ring is consistent w ith the trial cou rt ’ s having signed a tem porary restrain in g order. See Tex. R . Civ. P. 680 ( providin g that a temporary rest raining order expire s after fourtee n days unless extende d ).6

notified, did not appear and wholly made default. ” It fur t he r re late s t h at “ t he C ourt has j u r is dic t

ion of this case and of all th e p arti e s per Texas Family Co de [S] ection 152.204 and that there are no previous child custo d y dete rminations. ” Substantively, t he trial court (1 ) adjudicate d Father as Ja n et ’ s father , (2) appointed Fat her as J ane t ’ s temporary sole mana ging conservato r, and ( 3) appointed Mother as Janet ’ s tempo rary possessory conservator
. B ut t he or der further provided t hat Mother was denied access to Janet un til Mother could sho w t hat

s he was sober and he althy:
The Court finds that cred ible evidence has be e n presented that there is a history or pattern of child neglect and substance abuse by [Mo ther] and a hist ory or pattern of family violence by [ Mother]

. I T I S THEREFORE OR D ERED t hat [

Mother ’ s] possession of an d access to the child is D ENIED until and unle s s [Mother] demon strates she is sober and healthy, including but not limited to submi tting to drug tests an d the evaluations as ordered herein. I T IS ORDE RED that [Father] s hall h ave possession of and access to the child at all times.
The o r der concluded, “ These T empor ary Orders shall continue in force until further
order o f this Court. ”
About five months later , on January 24 , 2 022 , Father fi le d a mo tion to enter a default judgmen t. Father asserted that Mo ther had been served with his original petition on August 12 , 2021, and that the return of servic e had be en filed on August 16, 2021. Father al so relat ed t ha t the trial court had asserted temporary
emergency jurisdiction u nde r Section 152.204 of the T e xas F amily Code and signe d temporary orders on August 30, 20 21

. Fa ther then explain ed that Mother had not7

fi led any a nswer or p lea dings or othe r wi se made an actual appearance but had made an ex parte communic a tion with the c ourt b y email on or about Septemb er 30, 2021 , and that t he court ad ministrat o r had forwa rde d the communi cation to Father ’ s attorney
. Because Ja net had been in T ex as at least six months, Father maintain ed that
Texas was now her ho me state, and because Mother had not filed any suit i n South
Carol ina, Father asserted that the trial court could mak e its tempora ry orders a f in al judgment

. 6 Specifically, Fat her stat ed,
6. .

. . A s of the date of t his Motion, a child c ustody proceeding has not been commenced in a court of a state having jurisdi ction under [S] ections 152.201 through 152.203 [,] an d as of th e date of t his Motion,

6 A child’s home state is determined relative to the date that a suit is filed. See Tex. Fam. Code Ann. § 152.102 (7). As discuss ed earlier, when Fat h er file d h is suit, Texas was not Janet’s home state.
B y January 24, 2022, becau se Janet had been liv ing with F ather in Texas for over six months, if Mo ther had not yet filed a suit in South Carolina, any suit she late r filed in South Carolina would enco u nter th e p roblem that, by then, South Carolina was no longer Janet’s home state. See id. In contrast , i f Fathe r filed an original suit on January 24, 2 022, or l ater, Texas woul d be considered Janet’s home state.
F at her’s position was that although Tex a s was n ot Janet’s home state when he filed his suit in August 2021, Texas was her home state by the ti me he filed his motion for default judgment on Janu ary 2 4, 2 022 (without the necessity of having to dismiss his curre nt suit and file a new petition unde r Sectio n 2 52.201). See id

. § 252.201 (“Initial Child Custody Jurisdiction”). Fa ther contends that th e t emporary ord er under Section 252.204 becomes a f inal orde r under these ci rcumstan ces . See id. § 252.204(b). Sect

ion 152. 202(b) of the Texas Family C o de i s a rgu ably consistent with Father ’ s pos ition : “ A court of this state which ha s made a child custod y d etermination and does not have exclusive, contin uing juri sdiction under t his section may modify that determination only if it has jurisdiction to make an init ial determination under Section 152.201. ” Id. § 152 .202(b). One bas i s of jurisdiction under S ect ion 152.201 is being the child ’ s home state. Se e id. 152 .201 (a)(1).8

t he child the subject of this suit has reside d in Texas for at least six
mo nths and Texas is now the home state of th e child, the subject of this suit. T e x . F am . C o d e § 154.20 4(b). Father supported his motion for default ju dgm ent w ith an af fi davit. In his affidavit , Father assert ed that he had given “ te stimony at a temporar y [

- ] orders hearing in this

mat ter ” on August 30, 2021. He also averr ed that there were “ no court orders
regar ding cu stody, possess io n, or su pport , ” which , conte xtually, refers to out

- of

- state court orders.
Father ’ s motion does not contain a certificate of service showing that he served Mother with a copy of his motion.
As note d ea rli er, Father ack no wled ged that M other had email ed the court
administrator on Se ptember 30, 2021. Father attached both M ot her ’ s email and the
court administrator ’ s email response to his motion.
Mother ’s email to the court administrat o r provided,
Hello [ C o urt A d ministrat o r ] , My n ame is [Mother , ] and the case number is 21

- 6778

- 16. I l ive in South Carolina and h ave been unable to ma ke th e hearing and was hoping you could tell me what my next step should be. I work full time and have a home to maintain [,] so I would gre atly ap preciate kn owing [what] my next move should be in Texas. [Ja net] and I have lived in South Carolina for 5.6 years [,] a nd I was t old by her father that she would be returned on July 30, yet I received papers and have been unable to affor d
a n attorney [,] an d [I had] no id ea that [Father] w as trying to take full custo dy of our child. He only showed up on her birthday [,

. . . ] and [J anet] s aid s he wanted to visit for the summer. She had done a great job in catching up on her reading [, so] in stead of summe r school, I allowed her to visit him and his family. I do not know what his family life is like [,] yet she and I do talk on the phone. Always s uper vised but I9

don [ ’ ] t want to disrupt her school or her year with her dad. I believed he
an d I were amicabl [

y] co

- parenting

. He had d is [] appeared for 2 years [,] but when you love your daughter, you let her know her father [ ’ ] s family to o [ ] [ r] egardless [] of his not pro vi ding for [Janet ’ s] well [

- ] being all those years. I realize that was more in for mation than ne ed ed. I had a hard year last year with family member s bec oming very ill [,] and I knew she should have a fun summer. If you would ple ase help me with some way I could keep m y child happy, safe [,] and well [

- ] adjusted. She needs both her pa ren ts [,] and I wi ll not sign his full custod y papers. Sincerely, [Mot he r ] [Te lephone n umber]
Mother ’ s email does not bear a file mark

. Also attached to Father ’ s motion was the email that t h e court administrat o r

sent t o M o ther and Fat h er l ess than thirty minu tes after Mother had sent her emai l ; it provided , Th e Court is i n rec eipt of your correspondence regarding the above

referenced caus e. As a judge, Judge Shipman is charged by the Constitution and laws o f the State of Texas to stri ctl y follow the law. The law prohibits a judge from initiat ing, engaging in, a nd consid e ring any form o f communication which attempts to privately communicate information to the judge concerning a case other than through proper procedures

. Those procedur es re quire that every party to a legal proceeding shall be gi ven fair notice of the cont e nt of the commun ic ation and an opportunity to be h eard. Your correspon dence constitutes an improper ex parte communication with the Court. P ursuant to Judicial Ethic s Opin ion No. 154, a copy of wh ich is attached for your review , you are informed that su c h com munication s hou ld cease, that Judge Shipman wi ll take no action wha tsoever in response to your letter, and that a copy of your email and this ema il has been sent to all opposing counsel and pro se litigants.10

The 16th Court assures you that al l perti n ent i nformation p rope rly presented in this case wil l be considered. But Judge Shipman is bound by law to disregard any information communicate d other wis e. T hus, f rom the court admin istrato r ’ s perspec t ive, Mother ’ s email was an improper e x parte commun i cati o n . On Januar y 25, 2022, the tr ial court si gned a n “ Order in Suit Affect ing the
Parent

– Child Relationship

. ” The ord er recit es that t he cour t “ heard th is case [] by

m oti on and submis sion ” a n d that M other, “ although duly and properly notified, di d

no t appe ar in this lawsuit a nd who lly made defa ul t. ” Father ’ s attorney appeared, but
Father himself did not. Thus, neithe r Fathe r nor Mothe r could have t est ified

. Rega rding jur isdiction, the order states, The Court, after examining the record and hearing the e videnc e and argumen t of counsel, finds that all necessary prerequisites of the law have been legal ly satisfied and that th e Court has jurisdiction of this case and of all the parties per Texas Family Code [S] ection 152.204 and that there are no previ o us ch il d cust ody determina ti ons. The Court further finds that as of this date, a child custody proceed ing has not been
commenc ed in a court o f a state ha vin g jurisdictio n under [S] ections 152.201 through 152.203 and as of this date, the child the subject of th is
s uit has resided in Te xas for at least six months and Texas is now the home state of the child, th e subject of t his sui t.
The order also sta tes, “ The rec ord of testimony was dul y reported by the court reporter for the 16th Judicial District Cou r t , De nton County, Te xa s. ” Based on the face of the order, t he trial cou rt heard evid enc e. The order t hen sub stantively t racks the tempora ry orders with a few exceptions. For example, the i njunct ions are des ignated as permanent rather than11

tempor ar y. An d t h e final order contain s party info rma tion , notices , and wa rnings requir ed by the Te xas Family Code ; an award of atto rney ’ s fees to F a ther against
Mother for both the trial a nd an appeal (if ther e was one) ; and a discharge from the discovery

- retention re q uir em e nt
. Se e Tex. Fam. Code Ann. § 105.006 ( “ Contents of
Final Order ” )

. And , unlike the temporar y orders, th is order concludes with the
claus e: “ IT IS ORDERED tha t all relief requested in this case an d not expressly granted is denied. ”
S lig htly less t han s ix mo nths later, o n J u ne 21, 2022, Mother filed her notice of
restricted appeal. See Tex. R. App. P. 26.1 (c) , 30.
II. L AW To prevail in a r estricted appeal, Mother must show that (1) she timely filed he r notice of restricted a pp eal; (2) s he w as a p a rt y t o the under lying suit; (3) s he did not partici pate in the hearing that resulted in the complaine d

- of judgment and did no t timely file a postj udg

ment motion or request for findings of fact and conclusions of
law or a notice of a p pe al within the time p e rmitt ed by Rule 26.1(a); and (4) error is
apparent from the face of the record. See Tex. R. App. P. 2 6. 1(c), 30 ; In re S.W. , 614 S.W.3d 311, 313 (Tex. App.

— Fort Worth 2020, no pet.)

. Father agrees that
Mother meets the first three el ements; he con tends t hat s he does not meet the fourth.12 III. DISCUSSION
A
. P RELIMINARY I SSUE A preli minary issue that we mus t resolve is whether Mother filed an answer or made an appearance. Whether M othe r filed an answer or made a n ap pearance impacts defaul t

- jud gment p rocedure. See Sedona Pac. Hous. P’ship v. Ventura , 408 S.W.3d 507, 511

– 12 (Tex. App.

— El Paso 20 13, no pet.) (setting out different types of defa ult judgments). Father conten ds that he took a no

- answer de fau lt judgment an d that Mother never ma d e an appear ance. In contrast, Mother argues that her email to the court administrator const ituted both an answer and an
appeara nce. We ho ld that M other did not file an a nswer and did not make an
appearance. An answer must be filed. See Tex. R. Civ. P. 21(a ), 45, 23 9. Admitte dly, a let ter that is not in “standard form” mig ht qualify as an answer , but that is true only if the
letter is fil ed. Se e Smith v. Lippm ann , 826 S.W.2d 137, 138 (Tex. 1992); Aaron v. Fisher , 645 S.W.3d 299, 311

– 12 (Tex. App.

— East land 2022, n o pet.); Beard v. Urios tegui , 426 S.W.3d 178, 181

– 82 (Tex. App

. — Houston [1st Dist.] 2012, no pet.); In re K.B.A

. , 145 S.W.3d 685 , 688, 691 (Tex. App.

— F ort Worth 2004, no pet.); Terehkov v. Cruz , 648 S.W.2d 441, 442

– 43 (Tex. App.

— San Antonio 198 3, no writ). But cf. In re T.M.E. , 565 S.W.3d 383, 388 n.2, 39 3 (Tex. App.

— Texa rkana 2018, no pet.) ( holding that pro

se f ath er ’ s letter fi led in the t rial court was not an a n swer because (1 ) the letter was not addressed to the court , (2 ) was in response to a letter se nt by the Department of13

F a mily and Protective Services , and (3) was potentially filed by someone other than

t he father )

. Moth er’s em ail was n ever fi led in the trial court . But f o r F ather ’ s motion,
which attached Mother ’ s email as an exhibit , the record w ould not have disclos ed the
email ’ s existence

. A nd , a lthough true that pleadings may be filed electronically, se e Rhojo Enter s . , LLC v. Stevens

, 540 S .W.3d 621, 624

– 26 (Tex. App.

— Beaumo nt 2018, no pet.), emailing a court and efiling a documen t are differ ent processes. To efile a document, parties must go to a website designed to perform just that function. See eFi leTexas, https ://efil e.txcourts.gov (l ast vistited Feb. 10 , 2023 ) ; see al so Rhojo Enter

s . , LLC , 540 S.W.3d at 625 (noting that efi ling require s r egistering). Mother’ s email does not suggest that she was trying to file anything . Her em ail was the funct ion al equivalent
of a te lephone call. Similarly, Mother’s email does not cons titute an appearance. An appe arance must be in open court , and t he trial court has to re cognize that the party has, in fact, appeared by noting the appearance on the court’s d ock et and enterin g the a ppearance in the court’s minutes. See Tex. R. Civ. P. 1 20. Over a century ago, a Tex as court recognized th at me rely in ter acting with court
per sonnel is insufficient to constitute an appearance. See Stevens v. Perrin , 47 S.W. 802, 803 ( T ex. App.

— Fort Worth 1898, no writ)

. 7 In that case, the court wrote, “ A

7 The opinion does not indicate which appellate court authored Ste vens , but it d o es indi cat e that the appeal o r iginated out of Floyd County

. Id. at 8 02. In 1898,14

statement by an attorney in the clerk ’ s presence that he represen ts a party liti gant, with a probable request
. . . that his name be entered upon the docket a s t he attorney fo r the p arty, cannot, it seems to us, constitute such a n appearance as is contemplated by
law. ” Id. The court added, “We hence deduce that, in th e absence of pl ead ings filed
or of a n appearance in open court entered upon the minutes there of, it would be unsafe and unwise to hold parties responsible for an ap pearance in courts of record upon such vague and u ncertain conditions as those h ere disclose d.” I d. ; see J ons son v. Rand Racing

, L.L.C. , 270 S.W .3d 320, 325 (Tex . App.

— Dallas 2008, no pet.) ( “ [W] e cannot conclude that a notation on the docket sheet allegi ng appellee called the cour t the day before a conference ‘ disputing claim ’ as ev idence of a gen eral appeara nce. ” );
Moore v . Elek tro

-

Mobil Technik Gm bH

, 874 S.W.2d 324, 3 27 (Tex. App.

— El Paso 1994, writ denied) (

not ing that correspondence does not always co nstitute an appearance).
A ccordingly, we hold that Father took a default judgme nt after Mo t her failed to

a nswer and fail ed to a ppear.

B
. W H E TH E R T HE E VIDENCE WA S L EGAL LY I NSUFFICIENT T O S UPPORT THE E NTRY OF THE D EFAULT J UDGMENT
Mother co ntends that bec ause she answered and appea red, F a ther had to
present ev idence at the hearing on his motion f or de fault judg ment and could not ta ke

Floyd County fell with in the jurisdiction of the Fort Worth Court of Civil Appeal s . See Act appr oved May 13, 1 893, 23 rd Leg. , R.S., ch. 116, § 8, 1893 Tex. Gen. La ws 1 71, 172, reprin ted in 10 H.P.N. Gammel , The L aws of Texas 1822

– 1897 , at 601, 602 (Austin, Gamm el Book Co. 1898).15

a default judg men t based on Mot her ’ s h aving admit t ed the allegations in his petition by failing to answer or appear.
T he st andards governing no

- answer and pos t answer default judgments differ signifi cant l y. Rouhana v . Ramirez

, 556 S.W. 3d 472, 476 (Tex. App.

— El Paso 201 8, no pet.) . For a no

- a nswer default judgment , courts deem the non answering party to h ave admitted all the facts prop erly pleaded in the petition. I d . at 4 76

– 7 7. But , for a postanswer def

ault judgment , the party ’ s fa ilu re to appear at tr ial does not con sti tute an abando nment o f its answer and is not an implied confession on any issues that its
answer contested

. Id

. at 477

. Consequently , when a p laintiff takes a postanswer default, it mus t offer evid e nce and prove it s c ase on any contest ed issue as in a tr ial

. Id. The plaint

iff cannot take a judgment on the p lea dings themselves. Id.
In M other ’ s case, we hav e already determined that sh e did not file an answer . Normally that would mean t hat she ad mit ted the allegati ons in Father ’ s petit ion and
that Fat her could, theref

or e, ob tain a default judgme nt on his pleadings alone. See i d.
at 476

– 77.
But , w hen conservato rship of children is in volved, the same rules may not apply, and notwithstan ding Mot her ’ s failure to answe r , Father may have ha d to
present ev ide nce . In other no

- ans wer conte xts involving family

- law matters , plaintiffs are required to present evidence

. F or example, “ [i] n a sui t for divorce, the petition may not be taken as confe ssed if the r espondent does no t file an an swer. ” T ex. Fam.
Code A nn. § 6.701

. The same i s true in a modi fication proceeding. See Agraz v.16

Carnley , 143 S.W.3 d 547, 553 (Tex. App.

— Dallas 2004, no pet.) ; Considine v. Considine , 726 S.W.2d 253, 254 (Tex. Ap p.

— Austin 198 7, no writ)

. And , in a case invo lving the
terminatio n o f parental rig hts, a parent ’ s failure to answer i s not taken as an admission
of the termination pet

ition ’ s alleg ations

. See Williams v. Williams , 150 S.W.3d 436, 44 6

– 4 7 (Tex. App.

—

Austin 2004, pet. d enied) ; see also In re A.S. , 241 S.W.3d 661, 664 (Tex

. A pp.

— Texarkana 2007, n o pet.) (citing Will iams , 150 S.W.3d at 44 7)

. Here, however, w e do no t have to resolve that issue because the t rial court ’ s January 25, 2022 o rder indicates that it hear d eviden ce and tha t t he court reporter was
pr esent to take do wn the testimony. We pr esume that r ecitals in a judgment are true unless there is a conf

li ct between the judgment and the record, in whi ch case th e presumption is rebutted

. M.B. v. R.B. , N o. 02

- 19

- 0034 2

- CV, 2021 WL 2252792, at *4 (Tex. App.

— Fort Worth Ju ne 3, 2021, no pe t.) (me m. op.) (cit ing Alcantar v. Okla.
Nat’l Bank , 47 S.W.3d 815, 823 (Tex. App.

— Fort Worth 2001, no pet.)).
B ecause t he trial court ’ s order recites that the court heard e viden ce, and
because we pr esume that recital to be true absent the re cord showing t he cont rary, Mother needs the reporter ’ s record to rebut the recital

. Y e t Mother has not file d the
reporter ’ s record of th e hearing that pro duced the J anuary 25, 2022 order

. Wh en a
rep orter’s rec or d exists but is not requested or paid fo r, the reviewing court “ must presume there was evidence to support . . . the trial court’ s judgment.” Patrick v.
Watson , No. 2

- 07

- 075

- CV, 2008 WL 2854656, at *1 (Tex. App.

— Fort Worth July 24 , 200 8, no pe t.) (per cu ri am) (mem . op.) (citing Bryant v. United Sho rtline, Inc. A ssuranc e17

Servs. , 972 S.W.2d 26, 31 (Tex. 1998)); see Tex. R. App. P. 37. 3(c). I n a restricted appeal , a party can chall enge the sufficiency of the evidence, but i f no repor ter’s
record has be en prov

ided to the reviewing court , the party i s r estricted to e rror s

a ppear ing o n the face of the clerk’s record. See Quezada v. Queza da , No. 07

- 15

- 00313

- CV, 2016 WL 3694827, at *2 ( Tex. App.

—

Amarillo July 1 1 , 2016, no pet.) (mem. op.)

. In F ather ’ s brief, he asserts that he never ask ed for a trial or a h earing and that
the trial court rendered the Ja nuary 25, 2022, order “ o n submission

. ” Father argues
that under Section 152. 20 4, th e trial court simply m a de the temporary ord er f inal , which, a c cord ing to Fath er, required neit her a h earing nor a trial. While we recognize that Section 152 .204 anticipat es a temporary order
becom ing a final one, it does not set out the procedural me chan ism for doing so. See
Tex. Fam. C ode Ann. § 152.204( b). T o make the tempora ry order unde r Se ction
1 52

. 204 final , we would anticipate

— at the very least

— that the trial cour t would need
some evidence showing that no other state had exclusive continuing juri sdiction and
that no o ther state qualified as the chi ld ’ s home sta te
. For ex amp le, i n the pre s ent

ca se, the trial court would have ne ed ed eviden ce that after Father filed his petition in Texas, Mother did not and could no longer successfully file a pet iti on in South
Carolina b ecause South Carolina was no l o nger Janet ’ s home state. A nother example
is the trial court ’ s award o f attorney ’ s fees. T he Janua ry 25, 2022 order aw ards Father $10 ,000 in attorney ’ s fees thro ugh trial and another $10,000 in attorney ’ s fees to18

Father in t he event that he had to defend an app eal. T hose awards wo uld require

ev identia ry support. Under the presumption of regularity , we are required to presume recitations in the final judgment are correct absent any evidence to the cont rary. Vernon v. Perri en , 390 S.W. 3d 47, 58 (Tex. App

. — El Paso 201 2, pet. den ied ); S

. Ins

. Co

. v. Bre wster

, 249 S.W.3d 6, 12

– 14 (Tex. App.

— Houston [1st Dist.] 2007, pet. denied). Because the appellate record does not include a reporter ’ s record, nothing c ontradicts the
recitat ions , so we take them as true
. See Sandoval v. Comm ’ n for Lawyer Discip line , 2 5 S.W.3d 720, 722 (Tex

. App.

— Houston [14th Dist.] 2000, pe t. denied). Thus, we conclude that the trial court conducted an evidentiary hearing and that the evidence supports the judgment

. See Sedon a Pac. Hou s. P ’ ship , 40 8 S.W.3d at 51 1

. We ov errule M other ’ s fir st issue.
C
. W HETHER T HE E VIDENCE WA S S UFFICIENT TO S HOW THAT M OTHER P ARTICIPATED IN THE H EARING R ESULTING IN THE F INAL O RDER
In Mother ’ s second is sue, s h e conte nds that the evide nce is insu fficient t o show
that s he particip ate d in the hear i ng that resulted in the final order . Fat her does not
contest the fact that Mot her did not participate in the trial

. The trial court ’ s order affirmatively states that M o ther “ did not appear ” and “ wholly m ade de faul t. ” Ther e is
thu s no error to correct ; the trial court ’ s order already reflects that Mother did not participate in the trial

. Not participating in the trial, however, is but one of several
element s tha t M o ther mus t show

. See Tex. R. App. P. 30.19

Because this issue is not ind ependently dispos it ive, we overrule Mother ’ s second issue as mo ot. See Lien Kim Luu v. Rice , No. 02

- 14

- 00326

- CV, 2015 WL 4599377, at *2 (Tex. App.

— Fort Worth July 30, 2015, no pet.) (mem. op.).
D . W HET HER T HE E VI DENCE W A S S UFFICIENT TO S HOW THAT F A T HER G AVE M OTHE R N OTIC E O F THE D EFAULT - J UDGME N T H EARING
Mother ’ s third conten tion is that t he evidence is insufficient to show that Father gave her notice of the default

- judgment hearing . Mother contends th at she
was entitled to notice be cause she ans w ere d and appeared before F ather t ook a d e fault judgmen t. But we have det ermined that Mother n either filed an answer n or made an appearance. Because M o ther neither answered nor appeared, s he was not
entit led t o no t

ice. See Sedona Pac. Hous. P ’ ship , 408 S .W. 3d at 511

– 12 ; In re M arriage of
Collins , 870 S.W.2d 682, 683 (Tex. App

. — Amarillo 1 994, writ denied). “ The law imposes no duty on the plaintiff to notify a defendant before taking a defa ult judgment when [th e defen dant] has been served pro perly with th e ci tation and
pet ition [] and nonetheless has failed to answer or otherwis e appear. ” Wilson v. Wils on , 132 S.W.3d 533, 536 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied)

. We ov errule M o ther ’ s third issue.

E
. A TTORNEY ’ S F E ES
W ithin Mo ther ’ s brief, she complains abo ut the aw ard of a ttorney’s fees through trial

. Her complaint is not designated as a s eparate issue , and it is not briefed

.20

Neverthe less, in Father ’ s brief, he conced es tha t not only was the a ward of
attorney ’ s fee s through t rial erroneous , b u t he also acknowledges that the award of appell ate attorney ’ s fees was erroneous as well : “Because Father did not prove up the attorney’s fees or appellate attorne y’s fees, Father ag ree s to strike those fe es, and this
Court should affirm as modified.” I n the praye r to Father ’ s brief, he confirm s that he

want s both awar ds of at torney ’ s fees st r uc k : “ Father agr ees to st rike the attorney’s fees and appellate fees from the judgment. Father prays this Court will affir m the trial court’s judgm ent as modifie d. ” Although we do not have the reporter ’ s record to confi rm Father ’ s

conc ess ions, we are n ot incl in ed to deny M other thi s relief when Father a dmits

— against his own intere st

— that she is e ntitl ed to it. See generally Tittizer v. Union Gas
C o rp. , 171 S.W. 3d 857, 862 (Tex. 2005 ) ( “ [A] party cannot complain on appeal that the
trial co urt took a spe cific a ct ion that the complaining party requested, a doctrine commonly referred to as ‘ the invit ed er ror ’ doctrine. ” ). Consistent with Mother’s
comp laint and Fath er’s prayer, we vacate both awards of attorney’s fees.
IV. C ONCL USI ON
W e overru le Moth er ’ s three issues . Based on Mother ’ s complaint and Father ’ s concessions r egarding attorne y ’ s f ees, we modif

y the judgment to vacate the awards of $10,000 in attorne y’s fees through trial and of $10,000 in attor ney’s fees for the
ap pea l

. We affirm the tri al court ’ s order as modified.21 /s/ Brian Walker
Brian Walker Justice
Delivered: February 23 , 2023