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 County, Texas

Trial Court No. 21-6778-16

Before Womack, Wallach, and Walker, JJ.

Memorandum Opinion by Justice Walker

IN THE INTEREST OF J.G., A CHILD
2

MEMORANDUM OPINION

Appellant L.C. (Mother) brings this restricted appeal against Appellee J.G. 

(Father) regarding an order awarding Father sole managing conservatorship of their 

child J.G. (Janet).1 Mother contends that the evidence was legally insufficient to 

(1) support the entry of a post-answer default judgment, (2) show that she participated

in the hearing that resulted in the final order, and (3) show that Father gave her notice 

of the hearing on his motion for default judgment. We overrule all three issues.

Although not designated as an issue in Mother’s brief, she also complains about 

the award of attorney’s fees through trial. Father concedes that he failed to prove up 

the award of both trial and appellate attorney’s fees and, therefore, both should be 

vacated. Based on Mother’s complaint and Father’s concession regarding the award

of attorney’s fees, we modify the trial court’s order to vacate the award of both trial 

and appellate attorney’s fees, and we affirm the order as modified.

I. BACKGROUND

Father filed in Texas on August 10, 2021, an “Original Petition in Suit

Affecting the Parent–Child Relationship,” and on August 24, 2021, he filed a 

supplemental petition. The child who was the subject of the suit was nine-year old 

Janet. Father acknowledged that Mother resided in South Carolina. According to 

1We use an alias to identify the child, and we identify family members by their

relationship to her. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
3

Father’s supporting affidavit, he and Mother were Janet’s biological parents, but he 

did not assert that he and Mother had ever been married.

Regarding jurisdiction, Father alleged that “[n]o court ha[d] continuing 

jurisdiction of this suit or of the child the subject of this suit” and that “[t]his Court 

ha[d] jurisdiction of this matter under the Texas Family Code [S]ection 152.204.” By 

relying on Section 152.204, Father was implicitly acknowledging that Texas was not 

Janet’s home state2and expressly acknowledging that any jurisdiction that the trial 

court asserted would be based on a temporary emergency. See Tex. Fam. Code Ann. 

§ 152.204(a), (b).

3 According to Father’s affidavit, Janet had arrived in Texas about six 

weeks earlier, on July 1, 2021. 

2Regarding a child’s “home state,” the Texas Family Code provides,

(7) “Home state” means the state in which a child lived with a parent or 

a person acting as a parent for at least six consecutive months 

immediately before the commencement of a child custody proceeding. 

In the case of a child less than six months of age, the term means the 

state in which the child lived from birth with a parent or a person acting 

as a parent. A period of temporary absence of a parent or a person 

acting as a parent is part of the period.

Tex. Fam. Code Ann. § 152.102(7).

3

In pertinent part, Section 152.204 provides,

§ 152.204. Temporary Emergency Jurisdiction

(a) A court of this state has temporary emergency jurisdiction if 

the child is present in this state and the child has been abandoned or it is 

necessary in an emergency to protect the child because the child, or a 
4

Within his petition, Father requested a temporary restraining order, temporary 

orders, temporary injunctions, and a permanent injunction. Thus, Father anticipated 

that the trial court’s temporary emergency jurisdiction would eventually evolve into 

exclusive continuing jurisdiction. See id. § 152.202(b). Section 152.204 provides for 

temporary emergency jurisdiction becoming exclusive continuing jurisdiction under 

certain circumstances. See id. § 152.204(b).

Father’s original petition was served on Mother on August 12, 2021, and the 

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

served on August 12, 2021. The citation warned Mother that a default judgment 

might be taken against her if she did not file an answer.

4

sibling or parent of the child, is subjected to or threatened with 

mistreatment or abuse.

(b) If there is no previous child custody determination that is 

entitled to be enforced under this chapter and a child custody 

proceeding has not been commenced in a court of a state having 

jurisdiction under Sections 152.201 through 152.203, a child custody 

determination made under this section remains in effect until an order is

obtained from a court of a state having jurisdiction under Sections 

152.201 through 152.203. If a child custody proceeding has not been or 

is not commenced in a court of a state having jurisdiction under Sections 

152.201 through 152.203, a child custody determination made under this 

section becomes a final determination, if it so provides and this state 

becomes the home state of the child.

Tex. Fam. Code Ann. § 152.204(a), (b).

4Specifically, the citation provided,
5

Mother was also served with a notice stating that the trial court had granted a 

temporary restraining order when Father presented his petition and that the trial court 

had set a hearing for 1:30 p.m. on August 23, 2021, at which Mother could “show

cause why [the] injunction/restraining order should not be granted upon such 

Petition/Application effective until Final Order/Decree in such suit.”

5

Mother was also served with a notice of a hearing set for 1:30 p.m. on

August 23, 2021, on Father’s petition. 

Twenty days after Father filed his original petition, on August 30, 2021, the trial 

court signed temporary orders. The trial court set out the case’s procedural posture 

and substantively addressed Father’s and Mother’s conservatorship and rights of 

possession.

Procedurally, the order recites that on August 30, 2021, it heard Father’s 

“motion for temporary orders,” which contextually refers to Father’s request for 

temporary orders in his petition, and within the order, the trial court twice indicates 

that it heard evidence. The order states that Mother, “although duly and properly 

Notice to defendant: You have been sued. You may employ an attorney. 

If you, or your attorney, do not file a written answer with the clerk who 

issued this citation by 10:00 a.m. on the first Monday following the 

expiration of twenty days after you were served this citation and petition, 

a default judgment may be taken against you. 

5The record does not contain a temporary restraining order, but the date set for 

the show cause hearing is consistent with the trial court’s having signed a temporary 

restraining order. See Tex. R. Civ. P. 680 (providing that a temporary restraining order 

expires after fourteen days unless extended).
6

notified, did not appear and wholly made default.” It further relates that “the Court

has jurisdiction of this case and of all the parties per Texas Family Code [S]ection

152.204 and that there are no previous child custody determinations.” 

Substantively, the trial court (1) adjudicated Father as Janet’s father,

(2) appointed Father as Janet’s temporary sole managing conservator, and

(3) appointed Mother as Janet’s temporary possessory conservator. But the order 

further provided that Mother was denied access to Janet until Mother could show that 

she was sober and healthy: 

The Court finds that credible evidence has been presented that there is a 

history or pattern of child neglect and substance abuse by [Mother] and a 

history or pattern of family violence by [Mother]. IT IS THEREFORE 

ORDERED that [Mother’s] possession of and access to the child is 

DENIED until and unless [Mother] demonstrates she is sober and 

healthy, including but not limited to submitting to drug tests and the 

evaluations as ordered herein. IT IS ORDERED that [Father] shall have 

possession of and access to the child at all times. 

The order concluded, “These Temporary Orders shall continue in force until further 

order of this Court.” 

About five months later, on January 24, 2022, Father filed a motion to enter a 

default judgment. Father asserted that Mother had been served with his original 

petition on August 12, 2021, and that the return of service had been filed on 

August 16, 2021. Father also related that the trial court had asserted temporary 

emergency jurisdiction under Section 152.204 of the Texas Family Code and signed 

temporary orders on August 30, 2021. Father then explained that Mother had not 
7

filed any answer or pleadings or otherwise made an actual appearance but had made 

an ex parte communication with the court by email on or about September 30, 2021, 

and that the court administrator had forwarded the communication to Father’s 

attorney. Because Janet had been in Texas at least six months, Father maintained that 

Texas was now her home state, and because Mother had not filed any suit in South 

Carolina, Father asserted that the trial court could make its temporary orders a final 

judgment.

6 Specifically, Father stated, 

6. . . . As of the date of this Motion, a child custody proceeding has not 

been commenced in a court of a state having jurisdiction under 

[S]ections 152.201 through 152.203[,] and as of the date of this Motion, 

6A child’s home state is determined relative to the date that a suit is filed. See

Tex. Fam. Code Ann. § 152.102(7). As discussed earlier, when Father filed his suit, 

Texas was not Janet’s home state. 

By January 24, 2022, because Janet had been living with Father in Texas for 

over six months, if Mother had not yet filed a suit in South Carolina, any suit she later 

filed in South Carolina would encounter the problem that, by then, South Carolina 

was no longer Janet’s home state. See id. In contrast, if Father filed an original suit on 

January 24, 2022, or later, Texas would be considered Janet’s home state. 

Father’s position was that although Texas was not Janet’s home state when he 

filed his suit in August 2021, Texas was her home state by the time he filed his motion 

for default judgment on January 24, 2022 (without the necessity of having to dismiss 

his current suit and file a new petition under Section 252.201). See id. § 252.201 

(“Initial Child Custody Jurisdiction”). Father contends that the temporary order 

under Section 252.204 becomes a final order under these circumstances. See id.

§ 252.204(b). Section 152.202(b) of the Texas Family Code is arguably consistent with 

Father’s position: “A court of this state which has made a child custody determination 

and does not have exclusive, continuing jurisdiction under this section may modify 

that determination only if it has jurisdiction to make an initial determination under 

Section 152.201.” Id. § 152.202(b). One basis of jurisdiction under Section 152.201 is 

being the child’s home state. See id. 152.201(a)(1).
8

the child the subject of this suit has resided in Texas for at least six 

months and Texas is now the home state of the child, the subject of this 

suit. Tex. Fam. Code § 154.204(b).

Father supported his motion for default judgment with an affidavit. In his affidavit, 

Father asserted that he had given “testimony at a temporary[-]orders hearing in this 

matter” on August 30, 2021. He also averred that there were “no court orders 

regarding custody, possession, or support,” which, contextually, 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 noted earlier, Father acknowledged that Mother had emailed the court 

administrator on September 30, 2021. Father attached both Mother’s email and the 

court administrator’s email response to his motion.

Mother’s email to the court administrator provided,

Hello [Court Administrator],

My name is [Mother,] and the case number is 21-6778-16. I live in South 

Carolina and have been unable to make the 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 greatly appreciate knowing [what] my

next move should be in Texas. [Janet] and I have lived in South 

Carolina for 5.6 years[,] and I was told by her father that she would be 

returned on July 30, yet I received papers and have been unable to afford 

an attorney[,] and [I had] no idea that [Father] was trying to take full 

custody of our child. He only showed up on her birthday[, . . . ] and 

[Janet] said she wanted to visit for the summer. She had done a great job 

in catching up on her reading[, so] instead of summer 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 supervised but I 
9

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

and I were amicabl[y] co-parenting. He had dis[]appeared for 2 years[,]

but when you love your daughter, you let her know her father[’]s family 

too[] [r]egardless[] of his not providing for [Janet’s] well[-]being all those 

years. I realize that was more information than needed. I had a hard 

year last year with family members becoming very ill[,] and I knew she

should have a fun summer.

If you would please help me with some way I could keep my child 

happy, safe[,] and well[-]adjusted. She needs both her parents[,] and I 

will not sign his full custody papers.

Sincerely,

[Mother]

[Telephone number]

Mother’s email does not bear a file mark. 

Also attached to Father’s motion was the email that the court administrator

sent to Mother and Father less than thirty minutes after Mother had sent her email; it 

provided, 

The Court is in receipt of your correspondence regarding the abovereferenced cause. As a judge, Judge Shipman is charged by the 

Constitution and laws of the State of Texas to strictly follow the law. 

The law prohibits a judge from initiating, engaging in, and considering 

any form of communication which attempts to privately communicate

information to the judge concerning a case other than through proper 

procedures. Those procedures require that every party to a legal

proceeding shall be given fair notice of the content of the 

communication and an opportunity to be heard.

Your correspondence constitutes an improper ex parte communication 

with the Court. Pursuant to Judicial Ethics Opinion No. 154, a copy of 

which is attached for your review, you are informed that such 

communication should cease, that Judge Shipman will take no action 

whatsoever in response to your letter, and that a copy of your email and 

this email has been sent to all opposing counsel and pro se litigants.
10

The 16th Court assures you that all pertinent information properly 

presented in this case will be considered. But Judge Shipman is bound 

by law to disregard any information communicated otherwise. 

Thus, from the court administrator’s perspective, Mother’s email was an improper ex 

parte communication. 

On January 25, 2022, the trial court signed an “Order in Suit Affecting the 

Parent–Child Relationship.” The order recites that the court “heard this case[] by 

motion and submission” and that Mother, “although duly and properly notified, did 

not appear in this lawsuit and wholly made default.” Father’s attorney appeared, but 

Father himself did not. Thus, neither Father nor Mother could have testified. 

Regarding jurisdiction, the order states,

The Court, after examining the record and hearing the evidence and 

argument of counsel, finds that all necessary prerequisites of the law 

have been legally satisfied and that the Court has jurisdiction of this case 

and of all the parties per Texas Family Code [S]ection 152.204 and that

there are no previous child custody determinations. The Court further 

finds that as of this date, a child custody proceeding has not been 

commenced in a court of a state having jurisdiction under [S]ections 

152.201 through 152.203 and as of this date, the child the subject of this 

suit has resided in Texas for at least six months and Texas is now the 

home state of the child, the subject of this suit. 

The order also states, “The record of testimony was duly reported by the court 

reporter for the 16th Judicial District Court, Denton County, Texas.” Based on the 

face of the order, the trial court heard evidence.

The order then substantively tracks the temporary orders with a few 

exceptions. For example, the injunctions are designated as permanent rather than 
11

temporary. And the final order contains party information, notices, and warnings

required by the Texas Family Code; an award of attorney’s fees to Father against 

Mother for both the trial and an appeal (if there was one); and a discharge from the 

discovery-retention requirement. See Tex. Fam. Code Ann. § 105.006 (“Contents of 

Final Order”). And, unlike the temporary orders, this order concludes with the 

clause: “IT IS ORDERED that all relief requested in this case and not expressly

granted is denied.” 

Slightly less than six months later, on June 21, 2022, Mother filed her notice of 

restricted appeal. See Tex. R. App. P. 26.1(c), 30.

II. LAW

To prevail in a restricted appeal, Mother must show that (1) she timely filed her 

notice of restricted appeal; (2) she was a party to the underlying suit; (3) she did not 

participate in the hearing that resulted in the complained-of judgment and did not 

timely file a postjudgment motion or request for findings of fact and conclusions of 

law or a notice of appeal within the time permitted by Rule 26.1(a); and (4) error is 

apparent from the face of the record. See Tex. R. App. P. 26.1(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 elements; he contends that she does not meet the fourth. 
12

III. DISCUSSION

A. PRELIMINARY ISSUE

A preliminary issue that we must resolve is whether Mother filed an answer or 

made an appearance. Whether Mother filed an answer or made an appearance 

impacts default-judgment procedure. See Sedona Pac. Hous. P’ship v. Ventura, 

408 S.W.3d 507, 511–12 (Tex. App.—El Paso 2013, no pet.) (setting out different 

types of default judgments). Father contends that he took a no-answer default 

judgment and that Mother never made an appearance. In contrast, Mother argues 

that her email to the court administrator constituted both an answer and an 

appearance. We hold that Mother did not file an answer and did not make an 

appearance.

An answer must be filed. See Tex. R. Civ. P. 21(a), 45, 239. Admittedly, a letter 

that is not in “standard form” might qualify as an answer, but that is true only if the

letter is filed. See Smith v. Lippmann, 826 S.W.2d 137, 138 (Tex. 1992); Aaron v. Fisher, 

645 S.W.3d 299, 311–12 (Tex. App.—Eastland 2022, no pet.); Beard v. Uriostegui, 

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.—Fort Worth 2004, no pet.); Terehkov v. Cruz, 

648 S.W.2d 441, 442–43 (Tex. App.—San Antonio 1983, no writ). But cf. In re T.M.E.,

565 S.W.3d 383, 388 n.2, 393 (Tex. App.—Texarkana 2018, no pet.) (holding that pro 

se father’s letter filed in the trial court was not an answer because (1) the letter was 

not addressed to the court, (2) was in response to a letter sent by the Department of 
13

Family and Protective Services, and (3) was potentially filed by someone other than 

the father). Mother’s email was never filed in the trial court. But for Father’s motion, 

which attached Mother’s email as an exhibit, the record would not have disclosed the 

email’s existence.

And, although true that pleadings may be filed electronically, see Rhojo Enters., 

LLC v. Stevens, 540 S.W.3d 621, 624–26 (Tex. App.—Beaumont 2018, no pet.), 

emailing a court and efiling a document are different processes. To efile a document, 

parties must go to a website designed to perform just that function. See eFileTexas, 

https://efile.txcourts.gov (last vistited Feb. 10, 2023); see also Rhojo Enters., LLC, 

540 S.W.3d at 625 (noting that efiling requires registering). Mother’s email does not 

suggest that she was trying to file anything. Her email was the functional equivalent 

of a telephone call. 

Similarly, Mother’s email does not constitute an appearance. An appearance 

must be in open court, and the trial court has to recognize that the party has, in fact, 

appeared by noting the appearance on the court’s docket and entering the appearance 

in the court’s minutes. See Tex. R. Civ. P. 120. 

Over a century ago, a Texas court recognized that merely interacting with court 

personnel is insufficient to constitute an appearance. See Stevens v. Perrin, 47 S.W. 802, 

803 (Tex. App.—Fort Worth 1898, no writ).

7

 In that case, the court wrote, “A 

7The opinion does not indicate which appellate court authored Stevens, but it 

does indicate that the appeal originated out of Floyd County. Id. at 802. In 1898, 
14

statement by an attorney in the clerk’s presence that he represents a party litigant, with 

a probable request . . . that his name be entered upon the docket as the attorney for 

the party, cannot, it seems to us, constitute such an appearance as is contemplated by 

law.” Id. The court added, “We hence deduce that, in the absence of pleadings filed 

or of an appearance in open court entered upon the minutes thereof, it would be 

unsafe and unwise to hold parties responsible for an appearance in courts of record 

upon such vague and uncertain conditions as those here disclosed.” Id.; see Jonsson 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 alleging appellee called the court 

the day before a conference ‘disputing claim’ as evidence of a general appearance.”); 

Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex. App.—El Paso 1994, 

writ denied) (noting that correspondence does not always constitute an appearance).

Accordingly, we hold that Father took a default judgment after Mother failed to 

answer and failed to appear.

B. WHETHER THE EVIDENCE WAS LEGALLY

INSUFFICIENT TO SUPPORT THE ENTRY OF THE DEFAULT JUDGMENT

Mother contends that because she answered and appeared, Father had to 

present evidence at the hearing on his motion for default judgment and could not take 

Floyd County fell within the jurisdiction of the Fort Worth Court of Civil Appeals. 

See Act approved May 13, 1893, 23rd Leg., R.S., ch. 116, § 8, 1893 Tex. Gen. Laws 

171, 172, reprinted in 10 H.P.N. Gammel, The Laws of Texas 1822–1897, at 601, 602 

(Austin, Gammel Book Co. 1898).
15

a default judgment based on Mother’s having admitted the allegations in his petition

by failing to answer or appear. 

The standards governing no-answer and postanswer default judgments differ 

significantly. Rouhana v. Ramirez, 556 S.W.3d 472, 476 (Tex. App.—El Paso 2018, no 

pet.). For a no-answer default judgment, courts deem the nonanswering party to have 

admitted all the facts properly pleaded in the petition. Id. at 476–77. But, for a 

postanswer default judgment, the party’s failure to appear at trial does not constitute 

an abandonment of its answer and is not an implied confession on any issues that its 

answer contested. Id. at 477. Consequently, when a plaintiff takes a postanswer 

default, it must offer evidence and prove its case on any contested issue as in a trial. 

Id. The plaintiff cannot take a judgment on the pleadings themselves. Id.

In Mother’s case, we have already determined that she did not file an answer. 

Normally that would mean that she admitted the allegations in Father’s petition and 

that Father could, therefore, obtain a default judgment on his pleadings alone. See id.

at 476–77. 

But, when conservatorship of children is involved, the same rules may not 

apply, and notwithstanding Mother’s failure to answer, Father may have had to 

present evidence. In other no-answer contexts involving family-law matters, plaintiffs 

are required to present evidence. For example, “[i]n a suit for divorce, the petition 

may not be taken as confessed if the respondent does not file an answer.” Tex. Fam. 

Code Ann. § 6.701. The same is true in a modification proceeding. See Agraz v. 
16

Carnley, 143 S.W.3d 547, 553 (Tex. App.—Dallas 2004, no pet.); Considine v. Considine, 

726 S.W.2d 253, 254 (Tex. App.—Austin 1987, no writ). And, in a case involving the 

termination of parental rights, a parent’s failure to answer is not taken as an admission 

of the termination petition’s allegations. See Williams v. Williams, 150 S.W.3d 436, 446–

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

App.—Texarkana 2007, no pet.) (citing Williams, 150 S.W.3d at 447).

Here, however, we do not have to resolve that issue because the trial court’s 

January 25, 2022 order indicates that it heard evidence and that the court reporter was 

present to take down the testimony. We presume that recitals in a judgment are true

unless there is a conflict between the judgment and the record, in which case the

presumption is rebutted. M.B. v. R.B., No. 02-19-00342-CV, 2021 WL 2252792, at *4 

(Tex. App.—Fort Worth June 3, 2021, no pet.) (mem. op.) (citing Alcantar v. Okla. 

Nat’l Bank, 47 S.W.3d 815, 823 (Tex. App.—Fort Worth 2001, no pet.)).

Because the trial court’s order recites that the court heard evidence, and 

because we presume that recital to be true absent the record showing the contrary, 

Mother needs the reporter’s record to rebut the recital. Yet Mother has not filed the 

reporter’s record of the hearing that produced the January 25, 2022 order. When a 

reporter’s record exists but is not requested or paid for, 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, 

2008, no pet.) (per curiam) (mem. op.) (citing Bryant v. United Shortline, Inc. Assurance 
17

Servs., 972 S.W.2d 26, 31 (Tex. 1998)); see Tex. R. App. P. 37.3(c). In a restricted 

appeal, a party can challenge the sufficiency of the evidence, but if no reporter’s

record has been provided to the reviewing court, the party is restricted to errors

appearing on the face of the clerk’s record. See Quezada v. Quezada, No. 07-15-00313-

CV, 2016 WL 3694827, at *2 (Tex. App.—Amarillo July 11, 2016, no pet.) (mem. 

op.).

In Father’s brief, he asserts that he never asked for a trial or a hearing and that 

the trial court rendered the January 25, 2022, order “on submission.” Father argues 

that under Section 152.204, the trial court simply made the temporary order final, 

which, according to Father, required neither a hearing nor a trial. 

While we recognize that Section 152.204 anticipates a temporary order 

becoming a final one, it does not set out the procedural mechanism for doing so. See

Tex. Fam. Code Ann. § 152.204(b). To make the temporary order under Section 

152.204 final, we would anticipate—at the very least—that the trial court would need 

some evidence showing that no other state had exclusive continuing jurisdiction and 

that no other state qualified as the child’s home state. For example, in the present 

case, the trial court would have needed evidence that after Father filed his petition in 

Texas, Mother did not and could no longer successfully file a petition in South 

Carolina because South Carolina was no longer Janet’s home state. Another example

is the trial court’s award of attorney’s fees. The January 25, 2022 order awards Father 

$10,000 in attorney’s fees through trial and another $10,000 in attorney’s fees to 
18

Father in the event that he had to defend an appeal. Those awards would require 

evidentiary support. 

Under the presumption of regularity, we are required to presume recitations in 

the final judgment are correct absent any evidence to the contrary. Vernon v. Perrien, 

390 S.W.3d 47, 58 (Tex. App.—El Paso 2012, pet. denied); S. Ins. Co. v. Brewster, 

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 contradicts the 

recitations, so we take them as true. See Sandoval v. Comm’n for Lawyer Discipline, 

25 S.W.3d 720, 722 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Thus, we 

conclude that the trial court conducted an evidentiary hearing and that the evidence

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

We overrule Mother’s first issue.

C. WHETHER THE EVIDENCE WAS SUFFICIENT TO SHOW THAT

MOTHER PARTICIPATED IN THE HEARING RESULTING IN THE FINAL ORDER

In Mother’s second issue, she contends that the evidence is insufficient to show 

that she participated in the hearing that resulted in the final order. Father does not 

contest the fact that Mother did not participate in the trial. The trial court’s order 

affirmatively states that Mother “did not appear” and “wholly made default.” There is

thus 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 

elements that Mother must show. See Tex. R. App. P. 30.
19

Because this issue is not independently dispositive, we overrule Mother’s 

second issue as moot. 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. WHETHER THE EVIDENCE WAS SUFFICIENT TO SHOW THAT

FATHER GAVE MOTHER NOTICE OF THE DEFAULT-JUDGMENT HEARING

Mother’s third contention is that the evidence is insufficient to show that 

Father gave her notice of the default-judgment hearing. Mother contends that she 

was entitled to notice because she answered and appeared before Father took a 

default judgment. But we have determined that Mother neither filed an answer nor 

made an appearance. Because Mother neither answered nor appeared, she was not 

entitled to notice. See Sedona Pac. Hous. P’ship, 408 S.W.3d at 511–12; In re Marriage of 

Collins, 870 S.W.2d 682, 683 (Tex. App.—Amarillo 1994, writ denied). “The law 

imposes no duty on the plaintiff to notify a defendant before taking a default 

judgment when [the defendant] has been served properly with the citation and 

petition[] and nonetheless has failed to answer or otherwise appear.” Wilson v. Wilson, 

132 S.W.3d 533, 536 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). 

We overrule Mother’s third issue.

E. ATTORNEY’S FEES

Within Mother’s brief, she complains about the award of attorney’s fees

through trial. Her complaint is not designated as a separate issue, and it is not briefed.
20

Nevertheless, in Father’s brief, he concedes that not only was the award of 

attorney’s fees through trial erroneous, but he also acknowledges that the award of 

appellate attorney’s fees was erroneous as well: “Because Father did not prove up the 

attorney’s fees or appellate attorney’s fees, Father agrees to strike those fees, and this 

Court should affirm as modified.” In the prayer to Father’s brief, he confirms that he 

wants both awards of attorney’s fees struck: “Father agrees to strike the attorney’s 

fees and appellate fees from the judgment. Father prays this Court will affirm the trial 

court’s judgment as modified.” 

Although we do not have the reporter’s record to confirm Father’s 

concessions, we are not inclined to deny Mother this relief when Father admits—

against his own interest—that she is entitled to it. See generally Tittizer v. Union Gas 

Corp., 171 S.W.3d 857, 862 (Tex. 2005) (“[A] party cannot complain on appeal that the 

trial court took a specific action that the complaining party requested, a doctrine 

commonly referred to as ‘the invited error’ doctrine.”). Consistent with Mother’s 

complaint and Father’s prayer, we vacate both awards of attorney’s fees. 

IV. CONCLUSION

We overrule Mother’s three issues. Based on Mother’s complaint and Father’s 

concessions regarding attorney’s fees, we modify the judgment to vacate the awards of 

$10,000 in attorney’s fees through trial and of $10,000 in attorney’s fees for the 

appeal. We affirm the trial court’s order as modified.
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/s/ Brian Walker

Brian Walker

Justice

Delivered: February 23, 2023