                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


                                                          §                 No. 08-17-00247-CV

    IN THE INTEREST OF A.J.P.,                            §                    Appeal from the
    A CHILD.
                                                          §                  383rd District Court

                                                          §               of El Paso County, Texas

                                                                            (TC# 2000CM5805)

                                                 OPINION

         This is an appeal from an agreed Order Enforcing Child Support and Medical Support

Obligation (Enforcement Order). Appellant Andrew McRae (Father), appearing pro se, contends

that the Enforcement Order is void because he agreed to it under duress. We affirm.

                                               BACKGROUND

         In 2016, a court ordered Father to pay monthly child support and medical support for A.J.P.

yet Father admittedly failed to fulfill these obligations. The Office of the Attorney General of

Texas (Attorney General)1 filed a motion to enforce the support orders, alleging that Father was in

arrears and that it was anticipated that he would continue to violate the support orders.

         The matter came before an associate judge, who signed a proposed order which was later

approved and adopted as the Enforcement Order of the district court. That order recites that a


1
 The Attorney General and Ada Abel Garcia (“Mother”) are co-appellees in this case. Mother did not file an appellee’s
brief.
hearing was conducted on November 2, 2017; Mother appeared in person; Father appeared in

person and through his court-appointed attorney; and the parties waived a record of the

proceedings, with the consent of the court. The order contains the signatures of both Mother and

Father, and the parties characterize it as an agreed order.

       In addition to imposing child support and medical support payment obligations, the

Enforcement Order recites that Father is found in contempt and ordered to be incarcerated for a

period of 120 days. The Enforcement Order further recites, though, that the incarceration provision

is suspended, and that Father is placed on probation for a period of 120 months. Father appeals.

                                           DISCUSSION

       In a single issue, Father asserts that the Enforcement Order is void because he agreed to it

under duress.

                                        Standard of Review

       “A court’s order of child support will not be disturbed on appeal unless the complaining

party can show a clear abuse of discretion.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.

1990). A trial court abuses its discretion if its decision is arbitrary and unreasonable, or if it is

made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins.

Co., 494 S.W.3d 708, 712 (Tex. 2016). A trial court also abuses its discretion if it fails to analyze

or apply the law correctly. Id.

       Generally, duress occurs where any coercion, whether mental, physical, or otherwise, is

exercised which causes another person to act contrary to his or her own free will or to submit to a

situation or a condition against his or her own volition or interest. Doe v. Catholic Diocese of El

Paso, 362 S.W.3d 707, 719 (Tex. App.—El Paso 2011, no pet.). The question of what conduct or

occurrence constitutes duress is a matter of law. Id. Whether duress exists in a particular situation,




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however, is generally a question of fact, which depends on all the circumstances and the mental

effect on the party claiming duress. Id. at 719-20.

                                     No Preservation of Error

       We first examine whether Father preserved his complaint of duress for our review. See

TEX. R. APP. P. 33.1. As a prerequisite to presenting a complaint for appellate review, the record

must show that the complaint was made to the trial court by a timely request, objection, or motion,

and complainant obtained a ruling, or the court refused to rule on the request, objection or motion,

and the complaining party objected to the refusal. See TEX. R. APP. P. 33.1(a); Office of the Att.

Gen. v. Burton, 369 S.W.3d 173, 175 (Tex. 2012) (per curiam). Here, however, our record does

not show that Father ever made a complaint to the trial court asserting he acted under duress when

signing the enforcement order. As Appellant, Father bore “the burden to come forward with a

record showing error which warrants reversal.” Cass v. Stephens, 156 S.W.3d 38, 56 (Tex. App.—

El Paso 2004, pet. denied) (citing Murray v. Devco, Ltd., 731 S.W.2d 555, 557 (Tex. 1987)). In

the context of this case, Father bore the burden to bring forward a record demonstrating that he

presented his complaint of duress to the trial court and the court thereafter made a ruling on his

complaint.

       In his opening brief, Father makes the following factual assertions in support of his claim

of duress: (1) he was misled into believing that the enforcement hearing was a dismissal hearing;

(2) the trial judge, a representative of the Attorney General’s office, and his own attorney each

made statements to him that caused him to sign the Enforcement Order “for fear of loss of liberty

and emotional stress to his daughters”; and (3) he was intimidated into signing the order “just to

meet a quota” under the Child Support Performance and Incentive Act. See 42 U.S.C. § 658a.

       The Attorney General points out that these factual assertions do not find any support in the




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record and, therefore, cannot be considered by this Court. See Marshall v. Hous. Auth. of City of

San Antonio, 198 S.W.3d 782, 789 (Tex. 2006) (appellate courts “do not consider factual assertions

that appear solely in briefs and are not supported by the record”); TEX. R. APP. P. 38.1(g)

(appellant’s statement of facts must be supported by record references).

          In reply, Father argues that there is no record of the threats made to him because they

occurred in the lobby outside the courtroom. He further argues that “[t]here is no law that requires

a person to have a record of the threats that caused them to sign a contract,” and that the factual

statements he makes in his brief are sufficient to establish duress. On this point, however, Father

is mistaken. As just noted, the Supreme Court of Texas and the Texas Rules of Appellate

Procedure both require that factual assertions be supported by the appellate record. See Marshall,

198 S.W.3d at 789; TEX. R. APP. P. 38.1(g).

          Father also appears to argue that he was not required to make a record supporting his claim

of duress because “getting the person to agree to go on the record so as to documents [sic] their

threats, [sic] is absurd.” But Father does not explain why he did not present and preserve his own

testimony, either at the enforcement hearing2 or on motion for new trial, to establish the existence

and effect of those alleged threats, and to request a ruling from the trial court as required to preserve

error.3

          Father emphasizes in his reply brief that his only complaint on appeal is that he signed the

Enforcement Order under duress. In his own words, Father “is merely challenging the Order’s



2
 We note that Father states in his brief that no hearing was held, but the Enforcement Order expressly recites that a
hearing was held on November 2, 2017. “Recitations in a judgment create a presumption of regularity and truthfulness,
absent an affirmative showing to the contrary.” In re Borunda, 528 S.W.3d 149, 151 n.1 (Tex. App.—El Paso 2017,
orig. proceeding). Father has made no affirmative showing to refute the recitation that a hearing occurred.
3
  Although Father appears in this Court pro se, we note that he was represented by counsel in the court below. His
failure to create a record of any alleged threats or duress therefore cannot be explained by a lack of familiarity with
trial court procedures.


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right to exist based solely on the fact [that] he was under duress when he signed it.” But Father

has not provided this Court with a record establishing he met the appellate prerequisite of

preserving error, if any, or which otherwise contained evidence to substantiate his claim of duress,

and thus we are precluded from considering as evidence the unsupported statements contained in

his briefs. See Marshall, 198 S.W.3d at 789; TEX. R. APP. P. 33.1(a), 38.1(g). Father’s sole issue

on appeal is overruled.

                                         CONCLUSION

       Father has not sustained his appellate burden of demonstrating reversible error. The

Enforcement Order is affirmed.


                                              GINA M. PALAFOX, Justice
January 10, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.




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