Third Court of Appeals Abates Restricted Appeal After Missing Divorce Hearing Exhibits

Maria Martinez v. Mario Antonio Perez Batres, 03-24-00388-CV, March 31, 2026.

On appeal from 483rd District Court of Hays County, Texas

Synopsis

In a restricted appeal from a default divorce decree, the Third Court of Appeals confronted an appellate record that omitted every admitted hearing exhibit because the trial court released the originals to appellee’s counsel and they were never filed with the district clerk. Rather than ordering a likely futile supplemental reporter’s record, the court abated and remanded for the trial court to “settle the record” under Texas Rule of Appellate Procedure 34.6(e), with fallback findings and procedures under Rules 34.6(f) and (g).

Relevance to Family Law

Default prove-ups and short evidentiary hearings are common in Texas divorce, SAPCR, and property-confirmation proceedings—and those settings frequently rely on exhibits (inventories, appraisals, pay stubs, QDRO drafts, child-support worksheets, medical records, and sworn statements) to establish the evidentiary basis for relief. This case is a reminder that “win the hearing” is not the same as “preserve the record”: if admitted exhibits never make it into the clerk/reporter pipeline, a restricted appeal can turn into a fight about reconstructing the evidence rather than defending the merits of the decree. Strategically, it also underscores that releasing originals to a party can create chain-of-custody and authenticity disputes that may delay finality and increase the risk of remand.

Case Summary

Fact Summary

Maria Martinez filed a restricted appeal challenging a default divorce decree. She timely requested the reporter’s record in writing and specifically designated inclusion of “all exhibits admitted into evidence—from the proceedings of March 1, 2024, as recorded,” tracking the designation practice contemplated by Texas Rule of Appellate Procedure 34.6(b).

The reporter’s record showed that at the March 1, 2024 default divorce hearing, appellee Mario Antonio Perez Batres offered twelve exhibits, all of which the trial court admitted. Critically, at the end of the hearing the trial court stated on the record that it was “releasing” the exhibits to appellee’s counsel, who agreed to retain possession of Exhibits 1 through 12 pending any further action.

When the reporter’s record was prepared for appeal, the index listed the twelve exhibits but noted they were not filed with the district clerk and the transcriber was unable to obtain them from appellee’s counsel. As a result, none of the admitted exhibits were included in the appellate record. Martinez argued that the trial court’s release of the exhibits to the prevailing party compromised the chain of custody and the ability to ensure the appellate exhibits were accurate.

Issues Decided

• How the appellate courts should address an incomplete reporter’s record in a restricted appeal when all admitted exhibits are missing because they were released to counsel and not filed with the clerk.
• Whether to proceed through the ordinary supplemental-record mechanism under Rule 34.6(d) or instead abate and remand for trial-court resolution under Rule 34.6(e), with potential findings under Rules 34.6(f) and (g).

Rules Applied

• Tex. R. App. P. 34.6(b) (requesting/designating the reporter’s record, including exhibits).
• Tex. R. App. P. 34.6(d) (supplemental reporter’s record for omitted items).
• Tex. R. App. P. 34.6(e)(1) (party agreement to correct inaccuracies in reporter’s record, including exhibits, without recertification).
• Tex. R. App. P. 34.6(e)(2) (trial court must—after notice and hearing—settle disputes over whether/how to correct; must order the reporter to conform the record and file certified corrections).
• Tex. R. App. P. 34.6(f) (procedure and findings when a significant portion of the record is lost or destroyed and cannot be replaced).
• Tex. R. App. P. 34.6(g) (handling original exhibits when inspection by the appellate court is needed or originals should be sent in lieu of copies).

Application

The Third Court treated the absence of all admitted exhibits as a record-integrity problem that could not be solved by routine supplementation. Although the normal course would be to direct the court reporter to prepare and file a supplemental reporter’s record under Rule 34.6(d), the existing record suggested that step would be “futile” because the exhibits were never filed with the clerk and the transcriber could not obtain them from appellee’s counsel.

Given the posture—restricted appeal from a default decree—and the chain-of-custody concerns raised by Martinez, the court invoked the dispute-resolution architecture of Rule 34.6(e). That rule contemplates either (1) agreement by the parties to correct the record (including exhibits), or (2) trial-court resolution after notice and hearing if the parties cannot agree. The appellate court effectively recognized that the trial court is institutionally best positioned to determine what the admitted exhibits were, whether copies can accurately substitute for originals, and what “conforming the record” should mean where the prevailing party retained the evidence.

The court also built in the downstream contingencies: if certified corrections are not possible because exhibits are lost or destroyed, the trial court must make findings under Rule 34.6(f); and if originals are needed for appellate inspection (or should be transmitted instead of copies), the trial court must proceed under Rule 34.6(g). The court imposed a firm 30-day deadline to produce findings and any necessary supplements—an implicit signal that record disputes should not become open-ended satellite litigation.

Holding

The Third Court of Appeals abated and remanded the restricted appeal to the trial court to resolve the missing-exhibits dispute under Texas Rule of Appellate Procedure 34.6(e). The trial court must, after notice and hearing if necessary, settle the dispute and order the preparation and filing of certified corrections or supplements to conform the reporter’s record to what occurred in the trial court.

The court further held that if the exhibits cannot be reproduced because they have been lost or destroyed, the trial court must make the findings required by Rule 34.6(f), and if the appellate court should inspect originals or originals should be sent in lieu of copies, the trial court must proceed under Rule 34.6(g)—all within 30 days.

Practical Application

Family-law appellate vulnerability often originates in trial-level “informality” around exhibits—especially in default prove-ups and uncontested hearings where everyone assumes the paper will “stay with the file.” This order is a practical warning that when the decree is later attacked by restricted appeal, bill of review, or enforcement-related appeal, missing exhibits can derail the appellate timeline and shift focus to reconstruction rather than affirmance.

Concrete scenarios where this shows up:

• Default divorce prove-up exhibits (inventory and appraisement, proposed division spreadsheet, mortgage statements, payoff letters, appraisals, retirement plan statements): if the admitted exhibit packet walks out with counsel and is never filed, you may face an abatement and remand to reconstruct the record before you can defend the decree’s evidentiary support.
• SAPCR and custody hearings (drug-test results, counseling records, school records, supervised-visitation logs): chain-of-custody disputes are especially acute; opposing counsel may contest whether later-produced “copies” are the same as what the court admitted.
• Property characterization disputes in divorce (tracing summaries, bank statements, separate-property exhibits): when characterization turns on documents, a missing exhibit set is not a minor omission; it can become a “significant portion” problem implicating Rule 34.6(f) outcomes.
• Strategic posture in restricted appeals: when the record is incomplete through no fault of the appellant, abatement under Rule 34.6(e) may become the gateway to a broader Rule 34.6(f) analysis if the evidence cannot be replaced—raising the stakes for the decree holder.

Checklists

Default Prove-Up Exhibit Control (Trial Level)

• Mark each exhibit with a clear label (e.g., “Petitioner’s Ex. 1”) and keep a duplicate set in your file.
• Ensure admitted exhibits are either filed with the district clerk or handled per the court’s procedure that preserves appellate access.
• If the court wants to “release” exhibits to counsel, request on the record that (a) the reporter retains copies for inclusion in the reporter’s record, or (b) the clerk receives file-stamped copies contemporaneously.
• Confirm on the record which exhibits were admitted and whether the court is admitting “the packet” versus specific items.
• For digital exhibits (photos, texts, recordings), confirm the medium (USB, email, cloud link) and ensure the reporter/clerk has an archival copy.

Building an Appellate-Safe Record (Immediately After Hearing)

• Order the reporter’s record promptly and expressly designate “all exhibits admitted” under TRAP 34.6(b).
• Follow up with the court reporter regarding exhibit possession and whether the exhibits were filed with the clerk.
• If exhibits were released, send a preservation letter to opposing counsel identifying the admitted exhibits and requesting secure retention and duplication.
• Create a “record inventory” memo the same day listing each admitted exhibit, source, and whether you have an identical copy.

Responding When the Reporter’s Record Is Missing Exhibits (Appeal Stage)

• Move quickly: request supplementation under TRAP 34.6(d) while simultaneously evaluating whether a Rule 34.6(e) dispute is unavoidable.
• Confer with opposing counsel about an agreed correction under TRAP 34.6(e)(1), including a written exhibit stipulation and agreed copies.
• If agreement fails, request the trial court to set a Rule 34.6(e)(2) hearing to settle the record; be prepared with your duplicate exhibit set and a proposed order.
• If the exhibits cannot be located or reliably duplicated, develop the record for Rule 34.6(f) findings (what is missing, why it’s missing, diligence, and whether the missing portion is necessary).
• Consider whether original exhibits are genuinely needed for appellate inspection (TRAP 34.6(g)) or whether certified copies will suffice.

For Decree Holders: Minimizing Chain-of-Custody Attacks

• Avoid being the sole custodian of admitted originals when possible; propose filing copies with the clerk and retaining originals in your file.
• If you do retain originals, document the chain of custody (date received from court, storage method, no alterations) and be ready to produce them promptly.
• Maintain a litigation hold on exhibit files until appellate deadlines and post-judgment attack windows are resolved.

Citation

Maria Martinez v. Mario Antonio Perez Batres, No. 03-24-00388-CV (Tex. App.—Austin Mar. 31, 2026) (mem. op.) (per curiam) (abating and remanding to settle missing exhibits under Tex. R. App. P. 34.6).

Full Opinion

Read the full opinion here

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