Rule 34.5 Clerk’s Record Cost Allocation | Maniscalco v. Womack (2026)

Maniscalco v. Womack, 01-23-00419-CV, October 27, 2026.

On appeal from Probate Court No. 3, Harris County, Texas

Synopsis

Texas Rule of Appellate Procedure 34.5 permits an appellate court to allocate clerk’s-record costs against a party who requests unnecessary materials, regardless of the appeal’s ultimate disposition. The First Court of Appeals ordered Jack Maniscalco to pay sixty percent of the clerk’s-record costs, while assessing the remaining forty percent jointly and severally among Maniscalco, Darren Womack, and Richard Womack.

Relevance to Family Law

Family-law appeals routinely generate expansive clerk’s records containing temporary orders, discovery disputes, inventories, financial records, deposition filings, and years of post-decree proceedings. Maniscalco confirms that designating the record is not a cost-free exercise in overinclusion: a party who requests materials unnecessary to the appellate issues may bear the associated expense even when the court otherwise allocates appellate costs differently. Divorce, custody, and property litigators should therefore connect every requested clerk’s-record item to a preserved appellate issue, the procedural history necessary to evaluate that issue, or the court’s jurisdiction.

The decision also matters in family cases involving disputed parentage or inheritance consequences. Although Maniscalco arose from a probate proceeding concerning adoption by estoppel, the appeal illustrates how family relationships, prior pleadings, and inconsistent representations in earlier proceedings can become significant evidence. Statements made in divorce pleadings concerning whether children were born or adopted during a marriage may later affect probate, parentage, or equitable-adoption litigation.

Case Summary

Fact Summary

Huland Eugene “Gene” Womack married Norma Womack in 1970. Norma had two sons from a prior marriage, Jack Maniscalco and Tommy Maniscalco. Jack was nearly nine years old when Gene and Norma married.

Gene executed a will in 1980 that left his estate to Norma. If Norma predeceased him, the will provided for the estate to pass to “my child, JACK MADISON MANISCALCO, JR. and any other child or children legally adopted by me.” An addendum likewise referred to Jack as Gene’s son and addressed Gene’s expectations regarding the care of Jack and Tommy.

Gene and Norma separated in 1987 and divorced in 1992. Their divorce pleadings stated that no children had been born to or adopted during the marriage. Gene never filed a formal adoption proceeding concerning Jack, and the parental rights of Jack’s biological father were never terminated. Norma nevertheless testified that Gene had agreed to adopt the boys and had functioned as their father by supporting them and participating in their upbringing.

Gene died in 2020. After one of Gene’s brothers initially alleged that Gene had died intestate, Jack offered Gene’s will for probate and asserted that Gene had adopted him by estoppel. The dispute proceeded to a four-day jury trial involving testimony from family members, friends, and other witnesses concerning Gene’s relationship with Jack and whether Gene had agreed to adopt him.

The jury found that Gene had not adopted Jack. It also found that Jack, Darren Womack, and Richard Womack acted in good faith and with just cause in pursuing their respective claims, resulting in an award of attorneys’ fees.

On appeal, Jack challenged the jury argument, evidentiary rulings, denial of a mistrial, and the factual sufficiency of the finding against adoption. Darren and Richard pursued cross-appeals challenging Jack’s entitlement to attorneys’ fees. Richard also sought relief concerning unnecessary materials requested for inclusion in the clerk’s record.

Issues Decided

The First Court of Appeals addressed the following issues:

Whether allegedly improper jury argument caused incurable or otherwise reversible prejudice against Jack.
Whether the probate court abused its discretion by admitting pleadings from other proceedings.
Whether the probate court abused its discretion by denying Jack’s request for a mistrial.
Whether the jury’s finding that Gene had not adopted Jack was against the great weight and preponderance of the evidence.
Whether Jack had standing or a statutory basis to recover attorneys’ fees.
Whether the evidence supported the jury’s finding that Jack acted in good faith and with just cause.
Whether Texas Rule of Appellate Procedure 34.5 authorized the appellate court to allocate costs attributable to unnecessary items requested for inclusion in the clerk’s record.
How the clerk’s-record costs should be apportioned among Jack, Darren, and Richard.

Rules Applied

Texas Rule of Appellate Procedure 34.5. Rule 34.5 governs the contents and preparation of the clerk’s record. Its cost provisions permit an appellate court to require a party who requested more items than necessary to pay for the unnecessary portion of the record, regardless of the appeal’s outcome. The rule gives the court a mechanism to separate responsibility for excessive record designations from the ordinary allocation of appellate costs.

Texas Rule of Appellate Procedure 43.4. Although appellate costs ordinarily are taxed against the unsuccessful party unless the court orders otherwise, the appellate rules permit a different allocation when the circumstances warrant it. Rule 34.5 supplies a specific basis for addressing unnecessary clerk’s-record materials.

Adoption by estoppel. Texas law requires proof of more than a close stepparent relationship or the informal use of parental terminology. The claimant must establish the elements necessary for equitable adoption, including an enforceable or equitable basis for treating the decedent as having agreed to adopt the claimant. Whether the required agreement and performance existed presented a fact-intensive question for the jury.

Factual-sufficiency review. When a party challenges an adverse jury finding as being against the great weight and preponderance of the evidence, the appellate court considers all the evidence. Reversal is warranted only when the challenged finding is so contrary to the overwhelming weight of the evidence that it is clearly wrong and unjust. The appellate court may not substitute its view of witness credibility for the jury’s reasonable resolution of conflicting testimony.

Evidentiary and mistrial rulings. The admission of evidence and the denial of a mistrial are reviewed for abuse of discretion. Even an erroneous evidentiary ruling ordinarily requires a showing that the error probably caused the rendition of an improper judgment or prevented the appellant from properly presenting the case.

Improper jury argument. A complaint about jury argument generally must be preserved through a timely objection, a request for an instruction, and, when necessary, a motion for mistrial. The exception for incurable argument is narrow and applies only when the argument is so prejudicial that an instruction could not eliminate its harmful effect.

Estates Code attorneys’ fees. The applicable Estates Code provisions permit fee recovery by qualifying parties who prosecute or defend certain probate proceedings in good faith and with just cause. Good faith focuses on the party’s subjective belief, while just cause requires an objectively reasonable basis for the position taken.

Application

The evidence concerning equitable adoption was sharply contested. Jack and Norma described a longstanding parent-child relationship. They testified that Gene supported Jack, participated in his activities, and referred to him as a son. Gene’s will also used language identifying Jack as his child.

Other evidence supported the jury’s contrary conclusion. Gene never completed a statutory adoption, Jack’s biological father’s parental rights remained intact, and prior divorce pleadings stated that no children had been born to or adopted during Gene and Norma’s marriage. Members of Gene’s family disputed that Gene represented Jack as his adopted son and offered testimony inconsistent with Jack’s characterization of the relationship. Because the jury was entitled to assess credibility and resolve those conflicts, the appellate court did not disturb its finding.

The court likewise rejected the challenges involving jury argument, admission of prior pleadings, and denial of a mistrial. Those issues did not establish reversible error under the governing preservation, abuse-of-discretion, and harm standards.

The court also left intact the attorneys’ fee award. Although Darren and Richard disputed Jack’s standing, statutory entitlement, and good faith, the court affirmed the judgment, including the determination that the parties had acted in good faith and with just cause. A party may therefore fail on the substantive probate claim yet still satisfy the separate statutory standard for recovering fees incurred in pursuing that claim.

The clerk’s-record issue produced a different allocation. Richard contended that Jack should not be reimbursed for unnecessary materials included in the appellate record. Applying Rule 34.5, the court determined that a substantial portion of the clerk’s-record expense should be assigned specifically to Jack. Rather than treating all record costs as an indivisible component of ordinary appellate costs, the court allocated sixty percent to Jack and made the three parties jointly and severally responsible for the remaining forty percent.

Holding

The First Court of Appeals affirmed the probate court’s judgment. The jury’s rejection of Jack’s adoption-by-estoppel claim remained in place, as did the probate court’s rulings concerning jury argument, evidence, mistrial, and attorneys’ fees.

The court further held that Texas Rule of Appellate Procedure 34.5 permits allocation of clerk’s-record costs to account for unnecessary items requested by a party. The rule allows that allocation independently of the appeal’s overall outcome.

Jack was ordered to pay sixty percent of the clerk’s-record costs. The remaining forty percent was assessed jointly and severally among Jack, Darren, and Richard. The allocation was case-specific and should not be read as establishing a presumptive percentage for future appeals.

Practical Application

A family-law appellant should not designate the entire trial-court file merely because particular materials might prove useful. Before requesting an item, counsel should identify how it relates to appellate jurisdiction, preservation, the challenged ruling, the applicable standard of review, or the court’s harm analysis.

In a custody appeal, relevant materials may include the operative pleadings, the orders being challenged, preservation documents, findings and conclusions, and filings containing evidence considered by the trial court. Unrelated discovery motions, superseded pleadings, and collateral enforcement proceedings may add expense without assisting the appellate court.

In a divorce involving characterization or division of property, the necessary record may be broader because the appellate court must evaluate the entire property division for abuse of discretion and harm. Even then, counsel should distinguish between materials that bear on the marital estate and documents having no connection to the valuation, characterization, reimbursement, fraud, or division issues presented.

In a mandamus proceeding arising from temporary orders, discovery, transfer, or jurisdictional disputes, the relevant record is usually narrower still. Appellate counsel should avoid importing every document from the underlying divorce or SAPCR into a record directed at one discrete ruling.

Counsel opposing an excessive designation should object specifically and contemporaneously. Identify the challenged items, explain why they are unnecessary to the issues actually presented, quantify the associated preparation costs when possible, and request a Rule 34.5 allocation rather than relying exclusively on the ordinary prevailing-party cost rule.

Finally, trial and appellate counsel should coordinate early. Overdesignation often occurs when appellate counsel inherits a large file shortly before the record deadline and requests everything as a precaution. Early issue identification allows the record to be tailored without jeopardizing preservation or omitting materials necessary for meaningful review.

Checklists

Designating the Clerk’s Record

Identify each issue reasonably expected to be presented on appeal.
Confirm that each issue was preserved in the trial court.
Include the live pleadings on which the case was tried.
Include the challenged order or final judgment.
Include preservation documents, such as objections, motions, responses, and rulings.
Include findings of fact and conclusions of law when relevant.
Include post-judgment motions and orders affecting appellate deadlines or preservation.
Include materials necessary to establish appellate jurisdiction.
Connect each additional requested item to a specific appellate issue.
Avoid requesting the entire clerk’s file without an issue-specific justification.
Keep a copy of the designation and the rationale for each requested category.

Evaluating a Family-Law Record

Determine whether temporary orders are relevant to the final judgment or appellate complaint.
Separate the operative pleadings from superseded petitions and counterpetitions.
Identify inventories, appraisals, and financial filings relevant to property issues.
Include requested findings concerning characterization, valuation, conservatorship, possession, support, or fee awards.
Exclude unrelated discovery disputes unless they bear on a preserved appellate issue.
Evaluate whether sealed or confidential materials require special handling.
Confirm compliance with privacy protections applicable to children and sensitive data.
Determine whether a clerk’s record, reporter’s record, or both are necessary for each issue.

Challenging an Excessive Record Request

Review the opposing party’s designation promptly.
Identify unnecessary items by document, filing date, or clerk’s index number.
Explain why each challenged item is unrelated to the appellate issues.
Preserve written correspondence addressing the excessive designation.
Obtain an estimate of the cost attributable to the challenged materials.
Request relief under Rule 34.5 rather than relying solely on the general cost rule.
Ask for a percentage allocation if document-by-document calculation is impracticable.
Explain why the requested allocation reasonably corresponds to the unnecessary portion.
Preserve invoices, payment records, and clerk communications supporting the request.

Avoiding an Adverse Cost Allocation

Do not use record designation as a tactical burden on the opposing party.
Do not assume prevailing on appeal will eliminate exposure for unnecessary record costs.
Avoid including documents merely because they are unfavorable or embarrassing to the opposing party.
Supplement the record only when the additional materials are necessary to resolve an appellate issue.
Withdraw unnecessary requests promptly when issues are narrowed or abandoned.
Document the appellate purpose served by unusually voluminous materials.
Address potential cost allocation in any agreement concerning preparation of the record.

Preserving Related Trial Issues

Object timely to improper jury argument.
Request an instruction to disregard when an instruction could cure the alleged prejudice.
Move for mistrial when the circumstances warrant that relief.
Obtain an express ruling on objections and motions.
State specific grounds for excluding prior pleadings or other evidence.
Make an offer of proof when evidence is excluded.
Secure jury findings relevant to statutory attorneys’ fees, including good faith and just cause.
Segregate recoverable fees when required.
Ensure that the clerk’s and reporter’s records contain the materials necessary to demonstrate preservation and harm.

Citation

Maniscalco v. Womack, No. 01-23-00419-CV, ___ S.W.3d ___ (Tex. App.—Houston [1st Dist.] Oct. 27, 2026).

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