TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-22-00475-CV

Donald Rhodes, Appellant

v. 

Laura Pena Tamayo, Appellee

FROM THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY

NO. 20-2205-F425, THE HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

 Appellant Donald Rhodes, proceeding pro se, appeals from the district court’s 

final decree of divorce. In eight points of error on appeal, Rhodes asserts that (1) the district 

court’s temporary orders were vague and denied him due process; (2) the district court was 

biased against him; (3) the district court abused its discretion by denying Rhodes a continuance; 

and (4) the district court abused its discretion by ordering Rhodes to pay a portion of his 

ex-wife’s attorney’s fees.

1

 We will affirm the divorce decree.

1

 Rhodes’s brief is four pages long, contains no more than two or three sentences of 

“analysis” for each of his points of error, and fails to cite to the record or any authorities for any 

of his points. Although we are to “construe pro se filings liberally and with patience ‘so as to 

obtain a just, fair and equitable adjudication of the parties’ rights,’” Housing Auth. of City of 

Austin v. Elbendary, 581 S.W.3d 488, 491 n.1 (Tex. App.—Austin 2019, no pet.) (quoting Veigel 

v. Texas Boll Weevil Eradication Found., 549 S.W.3d 193, 195 n.1 (Tex. App.—Austin 2018, no 

pet.)), “pro se litigants must comply with the same rules and standards as those represented by 

attorneys,” id. (citing Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005)). Rhodes’s brief 

fails to comply with the briefing rules. See Tex. R. App. P. 38.1. Nevertheless, we will address 

Rhodes’s points of error to the extent we are able to discern them. Additionally, five of 
2

BACKGROUND

Rhodes and appellee Laura Pena Tamayo were married in 2007 and had two 

children together, A.R. (Ann), born in 2010, and S.R. (Sally), born in 2017.2 The parents 

separated the same year Sally was born. In 2018, the Office of the Attorney General (OAG)

filed a suit affecting the parent-child relationship involving the parents and their children. That 

case resulted in an agreed final order establishing the terms of the parents’ conservatorship, 

possession and access, and support of the children. The order appointed Tamayo sole managing 

conservator of the children and Rhodes possessory conservator. Rhodes’s possession and access 

was to be agreed upon by the parties, or in the alternative, he was to have supervised visits for 

four hours on any day in which he was in the same geographic location as the children, so long 

as he provided seven days’ notice to Tamayo. At the time the order was entered, Rhodes resided 

in Iowa and Tamayo resided in Williamson County.

3

In 2020, Rhodes filed a petition for divorce from Tamayo, and the parties agreed 

to consolidate the divorce case with the OAG case. Rhodes was represented by counsel at the 

beginning of the case through 2021. During the divorce proceedings, the parties attended a 

temporary-orders hearing, at which they announced that they had made several agreements

involving the children, both of whom required therapy for autism and other issues. Among other 

agreements, the parties agreed that Rhodes would “choose three therapists that accept Tricare 

Rhodes’s points relate to his claim that the district court was biased against him. For brevity, we 

have consolidated those arguments into a single issue. See Tex. R. App. P. 47.1.

2 For the children’s privacy, we will refer to them by aliases. See Tex. R. App. P. 

9.9(a)(3).

3 Rhodes now resides in Kentucky.
3

insurance in order to effectuate therapeutic visitation with the children”; that Rhodes would 

“submit those three choices” to Tamayo, who would select one of the three; and that the parties 

would follow the recommendations of the therapist regarding possession and access until further 

order of the court. Rhodes agreed that he would be “100 percent responsible” for the costs

associated with that therapy, including any uninsured medical costs. During the hearing, the 

district court rendered judgment on the parties’ agreement and made the agreement an order of 

the court.

The only disputed issues at the temporary-orders hearing were whether to modify 

the conservatorship and whether Rhodes would be limited to supervised visitation of the 

children. Rhodes and Tamayo testified regarding those issues. Rhodes testified that he had last 

visited the children in person in 2018. Rhodes had spoken with Ann over the phone “maybe 

seven or eight times” since then. Rhodes acknowledged that in 2018, he had sent several vulgar 

emails and text messages to Lis Schafer, Tamayo’s adopted mother and the person who was 

supervising Rhodes’s phone communication with the children. In the messages, copies of which 

were admitted into evidence, Rhodes called Schafer names such as “fucking liberal nazi” and 

“shitty ass hag” and demanded that she allow him to call Ann.

Tamayo testified that Rhodes did not make any attempt to contact the children in 

2019. Then, in 2020, Rhodes began telling Tamayo in emails that he “felt nothing” for one of 

the children, that he would “ask the courts to disown [the children] legally,” and that he wanted

to relinquish his parental rights to the children. Rhodes acknowledged sending these emails, 

which were admitted into evidence. At the conclusion of the hearing, the district court ordered 

that Tamayo would continue as sole managing conservator of the children and that Rhodes 

would be allowed some unsupervised visits with the children.
4

The case proceeded to a final trial on the merits in early 2022, at which point 

Rhodes was no longer represented by counsel. During trial, Rhodes agreed that the provisions

contained in the temporary orders regarding possession and access and therapy sessions would

be incorporated into the final order, except for the provision requiring Rhodes to pay for the 

therapy sessions, which Rhodes contested. Rhodes agreed that Tamayo would remain sole 

managing conservator of the children and that he would remain possessory conservator.

Tamayo testified that Rhodes had not visited the children in person since June 

2018. Tamayo testified that both children continued to require therapy and that her total monthly 

income was $1,388, which was composed of $692 from the children’s Social-Security disability 

payments and $696 that she received from Rhodes’s Veterans’ Administration (VA) militarydisability payments. She explained that the latter amount would decrease by approximately $200

per month following her divorce from Rhodes.

Rhodes testified that his monthly income was approximately $3,700 per month, 

including $3,050 from the VA and $650 from Social Security. Rhodes acknowledged that since 

April 2021, he had not paid any money for the children’s therapy, despite the orders requiring

him to do so.

The district court granted the divorce and rendered judgment on the parties’

agreements regarding conservatorship and possession and access. The court made final the 

parties’ previous agreement that Father pay for therapy as a condition to possession and access. 

The court additionally ordered that Father pay a portion of Tamayo’s attorney’s fees. This 

appeal followed.
5

DISCUSSION

Due Process

In his first point of error, Rhodes asserts that at the beginning of the case, the 

district court “gave [him] supervised visitation of the children with very vague temp[orary] court 

orders” that denied him due process.4 However, the entry of a final order supersedes any

temporary orders and renders moot any complaints about the temporary orders. See Vara 

v. Vara, 645 S.W.3d 818, 823 (Tex. App.—El Paso 2022, pet. denied); Mauldin v. Clements, 

428 S.W.3d 247, 261–62 (Tex. App.–Houston [1st Dist.] 2014, no pet.); see also Tex. Fam. Code 

§ 105.001(e) (providing that temporary orders made “for the safety and welfare of the child” are 

not subject to appeal).

We overrule Rhodes’s first point of error.

Judicial bias

In his second, third, fourth, fifth, and eighth points of error, Rhodes complains of 

judicial bias. He asserts that the district court demonstrated bias against him by “shrugging off”

Tamayo’s violations of the temporary orders, by allowing Tamayo to “slander” him during her 

testimony without allowing him to ask her certain questions on cross-examination, by 

conditioning his possession and access to the children on his payment for therapy, and by

“look[ing] down and talk[ing] down to [Rhodes] with a blatant attitude of disrespect 

and disregard.”

4 Rhodes claims that the district court made a determination at the temporary-orders 

hearing that he was denied due process. We have reviewed the record and found no such 

determination.
6

“All parties have a right to a fair and impartial trial before a neutral judge.” 

Ellason v. Ellason, 162 S.W.3d 883, 887 (Tex. App.—Dallas 2005, no pet.) (citing Markowitz 

v. Markowitz, 118 S.W.3d 82, 86 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)). “In the 

absence of a clear showing to the contrary, we will presume the trial judge was a neutral and 

detached officer.” In re K.L.R., 162 S.W.3d 291, 312 (Tex. App.—Tyler 2005, no pet.). During 

trial, “expressions of impatience, dissatisfaction, annoyance, and even anger” do not establish 

bias or partiality. Liteky v. United States, 510 U.S. 540, 555-56 (1994). Moreover, “‘judicial 

rulings alone almost never constitute a valid basis for a bias or partiality motion,’ and opinions 

the judge forms during a trial do not necessitate recusal ‘unless they display a deep-seated 

favoritism or antagonism that would make fair judgment impossible.’” Dow Chemical Co. 

v. Francis, 46 S.W.3d 237, 240 (Tex. 2001) (quoting Liteky, 510 U.S. at 555). “Thus, judicial 

remarks during the course of a trial that are critical or disapproving of, or even hostile to, 

counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id.

(quoting Liteky, 510 U.S. at 555). “Further, a trial court may properly intervene to maintain 

control in the courtroom, to expedite the trial, and to prevent what it considers to be a waste of 

time.” Id. at 241; see also Tex. R. Evid. 611(a) (“The court should exercise reasonable control 

over the mode and order of examining witnesses and presenting evidence so as to: (1) make 

those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect 

witnesses from harassment or undue embarrassment.”). “In short, a trial court has the inherent 

power to control the disposition of cases ‘with economy of time and effort for itself, for counsel,

and for litigants.’” Dow Chemical Co., 46 S.W.3d at 240 (quoting Landis v. North Am. Co., 

299 U.S. 248, 254 (1936)).
7

We have reviewed the entire record and found no evidence of bias or partiality by 

the district court. At both the temporary-orders hearing and at trial, the court allowed both 

Rhodes and Tamayo to testify and fully present their cases to the court, and the court took care at 

both proceedings to ensure that the agreed orders were satisfactory to each party before rendering 

judgment on them. Also, there is nothing in the record to indicate that the district court treated

Rhodes with “disrespect” or “disregard” as he claims. To the contrary, the district court asked 

each party at the conclusion of trial if they believed the court had listened to them “respectfully 

and with dignity.” Both Rhodes and Tamayo answered, “Yes,” and the record reflects that the 

district court did so.

Additionally, we cannot conclude that the district court showed partiality toward 

Tamayo. For example, at the conclusion of the temporary-orders hearing, the district court found 

in favor of Rhodes’s request to have some unsupervised visits with the children, despite Tamayo 

arguing that unsupervised visitation should not be allowed. The district court made clear in its 

ruling that Tamayo’s evidence did not rise to the level of “where the Court is comfortable 

restricting that visitation to supervised only.” This is more evidence that the district court was 

not biased against Rhodes.

As for the district court’s evidentiary rulings, the district court excluded as 

irrelevant some questions that Rhodes sought to ask Tamayo on cross-examination regarding

their marital history and conflict. Excluding such questions does not rise to the level of showing 

any bias or partiality on the part of the district court, particularly considering that the parties had 

already agreed that Tamayo would remain sole managing conservator of the children.

Similarly, we cannot conclude that the district court demonstrated bias against 

Rhodes by conditioning his possession and access to the children on his paying for therapy. 
8

Rhodes had previously agreed to pay for therapy, and the evidence at trial showed that Rhodes 

had more than twice the monthly income as Tamayo. Thus, rather than showing bias, the district 

court’s decision demonstrated conformity to the previous agreement between the parties and 

reflected the financial reality that Rhodes was in a better position than Tamayo to pay for

therapy. We cannot conclude that this or any other ruling by the district court demonstrated bias.

Having found no evidence that the district court was biased against Rhodes, we 

overrule Rhodes’s second, third, fourth, fifth, and eighth issues.

Continuance

At the beginning of trial in late March 2022, Rhodes moved for a continuance so 

that he could have “time to hire” a new attorney. His previous attorney had withdrawn in 

December 2021. The district court denied the motion, noting that Rhodes had “had almost four 

months to hire a new attorney” and that the divorce proceedings had been pending for over 560 

days, making it “a very old case.” In his sixth issue, Rhodes asserts that the district court abused 

its discretion by denying his motion for continuance.

We will not disturb a trial court’s order denying a motion for continuance unless 

the trial court has committed a clear abuse of discretion. BMC Software Belgium, N.V. 

v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002) (citing Villegas v. Carter, 711 S.W.2d 624, 626 

(Tex. 1986)). “A trial court ‘abuses its discretion when it reaches a decision so arbitrary and 

unreasonable as to amount to a clear and prejudicial error of law.’” Id. (quoting Johnson 

v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985)). “In exercising its discretion over 

whether to grant or deny a continuance due to the withdrawal of counsel, a trial court may
9

consider the entire procedural history of a case.” In re Harrison, 557 S.W.3d 99, 140 (Tex. 

App.—Houston [14th Dist.] 2018, pet. denied).

Here, Rhodes’s attorney withdrew in December 2021. Rhodes did not file his 

motion for continuance until March 18, 2022, four days and two business days before trial was 

scheduled to begin. At that time, the case had been pending for 560 days. Given the length of 

time the case had been pending and the length of time Rhodes already had to hire new counsel, 

we cannot conclude on this record that the district court abused its discretion by denying 

Rhodes’s motion for continuance.

We overrule Rhodes’s sixth issue.

Attorney’s fees

In his seventh issue, Rhodes asserts that the district court abused its discretion by 

ordering him to pay a portion of Tamayo’s attorney’s fees. He claims that this was unfair to him.

“Texas follows the American rule on attorney’s fees, which provides that,

generally, ‘a party may not recover attorney’s fees unless authorized by statute or contract.’” 

Wheelabrator Air Pollution Control, Inc. v. City of San Antonio, 489 S.W.3d 448, 453 n.4 (Tex. 

2016) (quoting Wells Fargo Bank, N.A. v. Murphy, 458 S.W.3d 912, 915 (Tex. 2015)). “When 

fee-shifting is authorized, the party seeking to recover those fees bears the burden of establishing 

the fees are reasonable and necessary.” In re National Lloyds Ins. Co., 532 S.W.3d 794, 809 

(Tex. 2017) (orig. proceeding).

“In a suit for dissolution of a marriage, the court may award reasonable attorney’s 

fees and expenses.” Tex. Fam. Code § 6.708(c). Additionally, “in a divorce suit, the trial court 

has the equitable power to award either spouse attorney’s fees as a part of the just and right 
10

division of the marital estate.” Mandell v. Mandell, 310 S.W.3d 531, 541 (Tex. App.—Fort 

Worth 2010, pet. denied). We review such an award for abuse of discretion. See Murff v. Murff, 

615 S.W.2d 696, 699 (Tex. 1981). To support an award of attorney’s fees in this context, 

evidence should be presented on the “hours spent on the case, the nature of preparation, 

complexity of the case, experience of the attorney, and the prevailing hourly rates” in the 

community. Hardin v. Hardin, 161 S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 2004, no 

pet.). “The trial court does not need to hear evidence on each factor but can ‘look at the entire 

record, the evidence presented on reasonableness, the amount in controversy, the common 

knowledge of the participants as lawyers and judges, and the relative success of the parties.’” 

In re Marriage of C.A.S. & D.P.S., 405 S.W.3d 373, 387 (Tex. App.—Dallas 2013, no pet.)

(quoting Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex. App.—Amarillo 2002, no pet.)).

Tamayo’s attorney, Lori Watson, testified that she has been practicing law for 

twenty-five years and that she bills at the rate of $350 per hour, which she testified was “the 

customary rate for an attorney that only practices family law as long as [she] ha[s].” Watson 

explained that her firm was retained when the divorce was filed in September 2020, that she filed 

an answer in October 2020, exchanged sworn inventories and documents with Rhodes’s attorney 

in November 2020, received discovery and an amended petition for custody, sent discovery, and 

had “been through the whole ringer with responding to discovery, objecting to it, reviewing what 

they sent over.” She also “participated in a full-day mediation . . . in an effort to resolve the 

issues for temporary orders” and then, shortly after that, attended the temporary-orders hearing 

that lasted approximately five hours.

Watson also offered an invoice into evidence “that detail[ed] everything that 

we’ve done in this case, including preparing for trial,” although the invoice did not include the 
11

attorney’s fees incurred from attending the trial. The invoice included the services that were 

performed by Watson, when they were performed, and the amount of time required to perform 

each service. In total, the invoice showed that Tamayo had incurred approximately $17,000 in 

legal fees during the divorce proceedings, not including the trial itself. The amount Rhodes had 

incurred in legal fees was disputed, although there was evidence presented that he had paid 

approximately $5,000 to his attorney before the attorney had withdrawn.

Tamayo requested that the district court order Rhodes to pay $6,000 of her 

attorney’s fees to equalize the division of the marital estate, and the district court awarded that 

amount of attorney’s fees to Tamayo. On this record, we cannot conclude that the district court 

abused its discretion by doing so. The testimony of Watson, combined with the invoice showing 

the attorney’s fees incurred by Tamayo, provided sufficient evidence from which the district 

court could conclude that the attorney’s fees were reasonable and necessary, and we find no 

abuse of discretion in the district court’s awarding $6,000 of the $17,000 total amount of 

attorney’s fees to Tamayo as part of the just and right division of the marital estate.

We overrule Rhodes’s seventh issue.

CONCLUSION

We affirm the divorce decree.

__________________________________________

Gisela D. Triana, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Affirmed

Filed: May 31, 2024