                             NUMBER 13-07-00758-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ERIC J. ROMERO, PH.D.,                                                        Appellant,

                                            v.

ODRA JULIETA ZAPIEN A/K/A
ODRA J. TORT,                                                                  Appellee.


               On appeal from the County Court at Law No. 1
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
             Memorandum Opinion by Chief Justice Valdez

       This appeal pertains to various orders involving the divorce of appellant, Eric J.

Romero, Ph.D., and Odra J. Zapien a/k/a Odra J. Tort, and various child custody issues.

By five issues, appellant, advancing pro se, contends that the trial court: (1) abused its

discretion in awarding appellee excessive child support in contravention of the family code;
(2) violated appellant’s constitutional rights regarding possession and visitation with the

couple’s only child; (3) treated appellant unfairly in ordering him to pay appellee’s

attorney’s fees; (4) abused its discretion in removing a geographic restriction pertaining to

appellee’s possession of the couple’s child, even though appellant had requested a jury

trial on this issue; and (5) treated him unfairly and delayed hearings on the various

motions, which “amplified the damage that Mrs. Tort has done to the parent/child

relationship.” We affirm, in part, and reverse and remand, in part.

                                      I. BACKGROUND

       Appellant and appellee were married on May 11, 2001. While married, appellant

and appellee had one child, a daughter. On November 22, 2002, appellant filed his original

petition for divorce in Hidalgo County, Texas. At the time of the divorce, both parties

resided in Edinburg, Texas. In addition to his divorce petition, appellant requested a

temporary restraining order preventing appellee from relocating and attached an affidavit

to his divorce petition, stating that he had reason to suspect that appellee would relocate

to El Paso County, where her parents live.

       After a hearing, the trial court granted appellant’s request for a divorce and entered

a final decree of divorce, which named appellant and appellee joint managing conservators

and granted appellee the exclusive right “to establish the primary residence of the child

within Hidalgo County, Texas.” The trial court also imposed a geographic restriction, which

prohibited appellee from relocating from Hidalgo County. The restriction provided as

follows:

       ODRA JULIETA ZAPIEN will not relocate from Hidalgo County, Texas,
       unless she seeks the authority of this Court or ERIC ROMERO relocates
       from Hidalgo County, Texas, in which case, [ODRA] JULIETA ZAPIEN,
       Respondent, and her daughter may relocate to any place in the world without
       seeking the authority of this Court. Upon ERIC ROMERO relocating more
       than 100 miles away from ODRA JULIETA ZAPIEN, the standard visitation
                                             2
       as outlined in the Texas Family Code Section 153.313- Parents Who
       Reside More Than 100 Miles Apart will apply.

(Emphasis in original.) The final divorce decree also, among other things: (1) set forth

standard visitation for both appellant and appellee; (2) ordered appellant to pay $1,073 per

month in child support to appellee; and (3) ordered appellant to provide health insurance

for the minor child and that the parties evenly split heath care costs not covered by

insurance.

       While he was living in Edinburg, appellant was employed as a professor at the

University of Texas-Pan American. At some point after the divorce decree was entered,

appellant voluntarily chose to move to Florida to take a more lucrative job. However, while

he was living in Florida, appellant decided that he wished to move back to Edinburg to be

closer to his daughter. Appellant tendered his resignation to his employer in Florida and

moved back to Edinburg without a job.

       On July 23, 2007, appellant, advancing pro se, filed an original petition to modify the

divorce decree. Appellant alleged that his child support and health insurance obligations

pertaining to the couple’s child should be modified because he had no health insurance

and no income, given that he was unemployed. Appellant requested that: (1) appellee

provide health insurance for the child; (2) he pay for half of the child’s private school tuition

directly to the school as child support; (3) appellee be ordered to keep the child in private

school; and (4) his child support obligations be reduced to that of a minimum wage worker.

       The trial court set a hearing on appellant’s motion to modify for September 18, 2007;

however, this setting was reset because appellee’s attorney apparently was not notified of

the hearing. In the meantime, appellee filed a motion for enforcement of child support by

contempt on October 23, 2007. In this filing, appellee alleged that appellant had not paid

his court-ordered child support of $1,073 for the months of July 2007 to October 2007, and
                                               3
that appellant had violated the divorce decree by allowing health insurance coverage for

the child to lapse. Appellee requested that the trial court award her: (1) $4,292 in child

support arrearages; (2) $399 in insurance premiums; (3) $595 in unpaid medical

reimbursements; and (4) attorney’s fees and court costs.

        On November 7, 2007, the trial court conducted a hearing on appellee’s motion for

enforcement. After hearing arguments from both parties and appellee’s testimony, the trial

court recessed without making a decision. Later, on November 16, 2007, appellant filed

a pro se amended motion to modify the divorce decree requesting that he be granted “joint

physical possession” of his daughter. In December 2007, the trial court conducted two

hearings on appellant’s original motion to modify and appellee’s motion for enforcement.

On December 26, 2007, the trial court entered an order holding appellant in contempt for

failing to pay his child support. The trial court found that appellant had failed to pay any

child support from July 1, 2007 to December 1, 2007, and that he was in arrears for

$6,438. The $6,438 in arrearages was awarded to appellee in addition to $950 in

attorney’s fees and court costs and $437.50 in health insurance expenses corresponding

to the relevant time period. The trial court did, however, grant, in part, appellant’s motion

to modify and reduced his child support payments to $575 per month and ordered him to

pay appellee for any health insurance premiums that appellee’s employer did not cover.1

        The trial court conducted a hearing on appellant’s pro se amended motion to modify

on February 1, 2008. At this hearing, appellant, still advancing pro se, argued his

entitlement to joint physical possession of the child and alleged that appellee may violate

the geographic restriction in the divorce decree by moving to El Paso in the near future.

Among the witnesses testifying at this hearing was appellee’s counsel, who stated that he
        1
         The record reflects that at the tim e of the Decem ber 26, 2007order, appellee was a teacher for the
Edinburg Consolidated Independent School District and that appellee’s em ployer covered the child’s health
care expenses.
                                                     4
bills at $175 per hour; he had done fifteen hours of work on the case; and he had done

family law for seventeen years in proving up entitlement to $4,125 in attorney’s fees. On

February 27, 2008, the trial court entered an order denying appellant’s pro se amended

motion to modify requesting joint physical possession of the child, but some modifications

were made to the visitation schedule.2 The trial court also granted appellant full access to

determining the education of the child and encouraged the parties to leave the child in

private school because she was thriving. With respect to appellant’s assertion regarding

the geographic restriction, the trial court declined to lift the restriction at that time.

Moreover, the trial court awarded appellee’s counsel $1,000 in attorney’s fees.

        On March 25, 2008, appellant filed a pro se motion for new trial, which was

overruled by operation of law. See TEX . R. CIV. P. 329b(c). On July 30, 2008, appellee

filed a petition to modify the parent-child relationship, seeking to lift the geographic

restriction contained in the divorce decree and modify appellant’s visitation rights to those

associated with parties residing more than 100 miles apart. Appellee argued that the

geographic restriction had already been voided when appellant chose to move to Florida

“for almost a year.” Appellant filed a pro se answer to appellee’s motion to modify and a

counter-petition to modify the parent-child relationship. In this filing, appellant requested

a jury trial, objected to the lifting of the geographic restriction, and requested that he be

named primary managing conservator with full custody of the child.

        Later, on August 26, 2008, appellant, now represented by counsel, filed a motion

for enforcement, asking that he be named the primary managing conservator for his


        2
          The trial court’s February 27, 2008 order was superceded by an order signed on February 27, 2009,
which provided everything contained in the February 27, 2008 order and added that appellee was responsible
for paying for the child’s private tuition unless she could dem onstrate to the trial court that she could not, in
which case the tuition costs would be divided evenly between appellant and appellee. The February 27, 2009
order also ordered appellee not to relocate from Hidalgo County and to ensure that the child m aintains contact
with appellant.
                                                        5
daughter and requesting additional visitation with the child and that appellee be held in

contempt for moving to El Paso with the child. Appellant filed his first amended motion for

enforcement on October 9, 2008, asserting the same arguments made in his original

motion for enforcement and alleging that appellee allowed for the health insurance

covering the child to lapse and that he incurred $2,978.63 in medical expenses treating the

child for a hernia.

       The    trial   court   conducted    hearings    on   all   the   remaining    pending

motions—appellant’s motion for enforcement and appellee’s petition to modify the parent-

child relationship. After hearing testimony from both appellant and appellee, the trial court

entered an order on August 18, 2009. In this order, the trial court noted that “[a] jury was

waived for the motion for enforcement, and all questions of fact and of law were submitted

to the Court.” Moreover, the order recited that appellee was in contempt for: (1) leaving

Hidalgo County without court authorization; (2) denying access of the child to appellant; (3)

failing to pay her share of the medical expenses associated with the child; and (4) failing

to provide health insurance for the child for five months once she relocated to El Paso. As

a result of her violations, the trial court assessed a civil fine of $500 to be paid into the

Court’s registry and $1,500 in attorney’s fees to be paid to appellant’s attorney and ordered

appellee to reimburse appellant $437.50 for failing to provide health insurance for the child.

The trial court awarded appellant a $1,489.32 child-support credit to compensate him for

one-half of the medical expenses incurred as a result of the child’s hernia surgery.

Additionally, appellant was awarded an additional week of visitation with the child during

the Thanksgiving or Christmas holidays to make up for the time that appellee denied

appellant access to the child. Finally, the trial court lifted the geographic restriction and

revised the visitation schedule according to section 153.313 of the family code, which

                                              6
outlines visitation for parties residing more than 100 miles apart. See TEX . FAM . CODE ANN .

§ 153.313 (Vernon Supp. 2009).

        Appellant, now advancing pro se, filed numerous notices of appeal, challenging the

trial court’s various orders. Appellant also filed several pro se appellate briefs detailing his

various arguments. After reviewing each of the briefs, we will analyze appellant’s most

recent brief filed on March 4, 2010, which appears to encompass all of the arguments

made in previous filings.3

                                            II. CHILD SUPPORT

        By his first issue, appellant argues that the trial court abused its discretion in

awarding appellee back child support for the period of time in which appellant quit his job

in Florida until the December 2007 hearings. Specifically, appellant asserts that because

he was unemployed during the relevant time period, he should only have been required to

pay child support premised on a minimum wage finding, rather than a continuation of the

$1,073 per month in child support that had been ordered in the divorce decree. Appellant

also alleges that the trial court made a mathematical error in calculating the reduction of

his child support from $1,073 to $575 and abused its discretion in requiring him to pay a

portion of the child’s private school tuition. Appellee counters by arguing that the trial

court’s child support award was based on appellant’s earning potential and that appellant

was intentionally underemployed. Appellee further argues that the evidence adduced at

the hearing supports the trial court’s decision regarding child support.

A.      Standard of Review and Applicable Law

        An order regarding child support will not be overturned unless the trial court clearly

abused its discretion. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex. 1993); Worford
        3
          In his March 4, 2010 appellate brief, appellant inform s this Court that he has now m oved to El Paso
to be closer to his daughter and that he has filed another m otion for enforcem ent in El Paso. This newly-filed
m otion, however, is not within the scope of this appeal.
                                                       7
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); see Office of the Att’y Gen. v. Buhrle, 210

S.W.3d 714, 717 (Tex. App.–Corpus Christi 2006, pet. denied); see also Smith v. Smith,

143 S.W.3d 206, 217 (Tex. App.–Waco 2004, no pet.). The test for abuse of discretion

is whether the trial court acted without reference to any guiding rules or principles, or, in

other words, whether the act was arbitrary or unreasonable. See Worford, 801 S.W.2d at

109; see also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). A trial court’s failure to analyze or apply the law correctly constitutes an abuse of

discretion. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court is given

broad discretion in setting child support payments and also in decreasing or increasing

such payments. See In re D.S., 76 S.W.3d 512, 520 (Tex. App.–Houston [14th Dist.] 2002,

no pet.). Furthermore, we view the evidence in the light most favorable to the trial court’s

action, indulging every presumption in favor of the judgment. See Zorilla v. Wahid, 83

S.W.3d 247, 253 (Tex. App.–Corpus Christi 2002, no pet.); see also Warren v. Warren, No.

13-05-00429-CV, 2008 Tex. App. LEXIS 1859, at *5 (Tex. App.–Corpus Christi Mar. 13,

2008, no pet.) (mem. op.).

       The trial court may order either or both parents to support a child in the manner

specified by the order. TEX . FAM . CODE ANN . § 154.001 (Vernon 2008). In other words,

each party has a duty to support his or her minor child. Id. § 151.001(b) (Vernon 2008);

see Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex. App.–San Antonio 1995, no writ).

Under section 154.001, a trial court must order payment of child support "once financial

need and ability to pay [are] established." Orsak v. Orsak, 642 S.W.2d 566, 567 (Tex.

App.–Dallas 1982, no writ) (citing Grandinetti v. Grandinetti, 600 S.W.2d 371, 372 (Tex.

Civ. App.–Houston [14th Dist.] 1980, no writ)). For purposes of determining child support

liability, the trial court shall calculate net resources, including all wage and salary income

                                              8
and other compensation for personal services, interest, dividends and royalty income,

self-employment income, net rental income, and all other income actually being received.

TEX . FAM . CODE ANN . § 154.062(a), (b) (Vernon Supp. 2009). Further, there must be some

evidence in the record of a substantive and probative character of net resources in order

for this duty to be discharged. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 236 (Tex.

App.–Houston [14th Dist.] 2004, no pet.).

       Moreover, in Garner v. Garner, the Dallas Court of Appeals noted the following with

respect to the calculation of child support:

       Chapter 154 of the Texas Family Code establishes a multiple-step process
       for determining the amount of child support. The trial court must first
       determine the parties' gross income, net income, and monthly net resources.
       And, each party is required to furnish information sufficient to identify the
       party's net resources and ability to pay support, such as production of copies
       of income tax returns, financial statements, and pay stubs. After determining
       the amount of net resources, the trial court must decide whether to apply the
       child support guidelines or whether application of the guidelines would be
       unjust or inappropriate. Importantly, a parent's child support obligation is not
       limited to that parent's ability to pay from current earnings; rather it extends
       to his or her financial ability to pay from any and all available sources.

See 200 S.W.3d 303, 306 (Tex. App.–Dallas 2006, no pet.); see also Santillan v. Campos,

No. 04-08-00904-CV, 2009 Tex. App. LEXIS 8301, at **8-9 (Tex. App.–San Antonio Oct.

21, 2009, no pet. h.) (mem. op.). A court may, within its broad discretion, modify an order

for child support if the “circumstances of the child or a person affected by the order have

materially and substantially changed.” TEX . FAM . CODE ANN . § 156.401(a) (Vernon 2008).

B.     Discussion

       The record contains appellant’s 2005 IRS tax return, which reflects that appellant

had an adjusted gross income of $92,828 around the time the couple got divorced. Using

this figure, the trial court determined that appellant should pay appellee $1,073 per month




                                               9
in child support.4 Shortly thereafter, appellant voluntarily moved to Florida to take a more

lucrative job, which, according to his 2006 IRS tax return, provided appellant with an

adjusted gross income of $138,456. Later, appellant chose to return to the Rio Grande

Valley to be closer to his daughter. Appellant submitted a letter of resignation to his

employer in Florida and subsequently moved back to Edinburg, Texas, without a job.

Appellant testified that he applied for numerous jobs upon arriving in Edinburg; however,

he was only able to secure an online teaching position, which, as appellant admitted, did

not amount to steady employment.5 Once he quit his job in Florida, appellant ceased

paying child support and filed a motion to modify his child support obligations, mistakenly

assuming that the filing of his motion to modify relieved him of the obligation of paying his

child support obligations.

          “If the actual income of the obligor is significantly less than what the obligor could

earn because of intentional unemployment or underemployment, the court may apply the

support guidelines to the earning potential of the obligor.” TEX . FAM . CODE ANN . § 154.066

(Vernon 2008); see Garner, 200 S.W.3d at 306 (“A child support obligor qualified to obtain

gainful employment may not avoid his support obligation by voluntarily remaining

unemployed or underemployed.”). “In effect, the court can prevent a parent from evading

child support by treating the parent’s earning potential as an element of his net resources.”

Dubois v. Dubois, 956 S.W.2d 607, 610 (Tex. App.–Tyler 1997, no pet.). Though the

family code does not define “underemployment” or “unemployed” with respect to section

154.066, Texas courts have traditionally held that “the reduction in income must have been

          4
              Appellant does not challenge the trial court’s child support calculation of $1,073 in the divorce
decree.

          5
           Outside of appellant’s own self-serving testim ony, the record does not contain any evidence of
appellant’s pursuit of finding em ploym ent once he m oved back to Edinburg, nor does it contain com petent
evidence of appellant’s earned incom e and other financial resources from July 2007 to Decem ber 2007— the
tim e period in which appellant failed to m ake any child support paym ents.
                                                        10
effectuated with a design to reduce the child support payments.” Id. (citing Starck v.

Nelson, 878 S.W.2d 302, 307 n.10 (Tex. App.–Corpus Christi 1994, no writ); Woodall v.

Woodall, 837 S.W.2d 856, 858 (Tex. App.–Houston [14th Dist.] 1992, no writ); Casterline

v. Burden, 560 S.W.2d 499, 501 (Tex. Civ. App.–Dallas 1977, no writ); McSween v.

McSween, 472 S.W.2d 307, 310 (Tex. Civ. App.–San Antonio 1971, no writ)).

       In making a finding of intentional underemployment or unemployment, there must

be evidence in the record that a parent reduced his income for the purpose of decreasing

his child support payment. See Zorilla, 83 S.W.3d at 253; see also Colvin v. Colvin, No.

13-03-00034-CV, 2006 Tex. App. LEXIS 4496, at *15 (Tex. App.–Corpus Christi May 25,

2006, pet. denied) (mem. op.). The requisite intent, or lack thereof, to be underemployed

or unemployed for the purpose of determining an award of child support may be inferred

from such circumstances as the parent’s education, economic adversities, business

reversals, business background, and earning potential. See Zorilla, 83 S.W.3d at 253; see

also Colvin, 2006 Tex. App. LEXIS 4496, at *15. However, “[t]here is no presumption that

simply because a parent is no longer as lucratively employed as he was during his

marriage, he is intentionally underemployed or unemployed.” Dubois, 956 S.W.2d at 610.

Furthermore, “we must be cognizant of a parent’s right as a citizen to the pursuit of

happiness and to the freedom to live where he chooses . . . . And it is axiomatic that

although a parent’s financial support of his children is of prime importance, so too is his

physical presence in their lives.” Id. Once the parent who is obligated to pay child support

has offered proof of his current wages, the other parent bears the burden to show that the

obligor is intentionally underemployed or unemployed. Zorilla, 83 S.W.3d at 253.

       Appellant argues that, in moving back to Edinburg, he had spent the majority of his

savings, and, because he had no job and no income, he could no longer pay his child

                                            11
support obligations.6 At the hearing on his motion to modify, appellant admitted that he

made a mistake in failing to make any child support payments during the relevant time

period, but that his mistake should be forgiven because he is not an attorney who is

familiar with the child support laws. This argument is not persuasive because pro se

litigants are held to the same standards as licensed attorneys and must comply with

applicable laws and rules of procedure. See Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.

App.–Dallas 2005, no pet.); see also Siddiqui v. Siddiqui, No. 14-07-00235-CV, 2009 Tex.

App. LEXIS 1443, at *4 (Tex. App.–Houston [14th Dist.] Mar. 3, 2009, pet. denied) (mem.

op.) (“While we have compassion for the plight of the pro se litigant attempting to follow the

rule of legal procedure and substantive laws, and therefore construe pro se pleadings and

briefs liberally, we must still hold appellant to the same standard as a licensed attorney,

requiring that he follow those same rules and laws . . . . To do otherwise would give a pro

se litigant an unfair advantage over a litigant represented by counsel.”); Sears v. Highlands

Ins. Co., No. 13-97-135-CV, 1998 Tex. App. LEXIS 3810, at *4 (Tex. App.–Corpus Christi

June 25, 1998, no pet.) (mem. op., not designated for publication) (“Ignorance or mistake

of the law is no excuse.”) (citing Pollard v. Steffens, 161 Tex. 594, 343 S.W.2d 234, 237

(1961)).

        Appellant also argued that it was not logical for him to sacrifice his lucrative earnings

in Florida to move back to Edinburg for the sole purpose of reducing his child support

payments. However, the trial court, after conducting a hearing on this matter and hearing

appellant’s justifications for failing to pay child support to appellee for the relevant time

        6
           Though we recognize that docum ents solely appearing in the appendix of an appellate brief are not
part of the record and are generally not considered on appeal, see Till v. Thomas, 10 S.W .3d 730, 733-34
(Tex. App.–Houston [1st Dist.] 1999, no pet.), we find it telling that appellant attached a line graph (Appendix
4) to his appellate brief, which indicated that he had approxim ately $30,000 in financial resources at the tim e
he ceased paying child support in July 2007. Moreover, appellant’s own line graph indicates that he had
approxim ately $10,000 in financial resources in Decem ber 2007, when the trial court held him in contem pt for
failing to pay child support.
                                                      12
period, held appellant in contempt for failing to make his $1,073 child support payments

from July 1, 2007 to December 1, 2007. See Garner, 200 S.W.3d at 308 (“As the fact

finder, the trial court had the discretion to disbelieve appellant’s testimony and was not

required to accept appellant’s evidence of his income and net resources as true . . . .

Because the trier of fact is in a better position to determine the candor, demeanor, and

credibility of the witnesses, we will not substitute our judgment for that of the trial court.”)

(citing Dishner v. Huitt-Zollars, Inc., 162 S.W.3d 370, 378 (Tex. App.–Dallas 2005, no pet.);

Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.–Houston [14th Dist.] 2000, no

pet.)). Accordingly, on December, 26, 2007, the trial court ordered appellant to pay

appellee $6,438 in back child support, $950 in attorney’s fees, and $437.50 for expenses

associated with the child’s health insurance coverage.7

        Based on the foregoing, we cannot say that the trial court abused its discretion in

awarding appellee back child support. It is clear to this Court that appellant voluntarily

resigned from his lucrative position in Florida without securing a job in Edinburg. Contrary

to his assertions, appellant, an individual with a Ph.D. in management, a former business

professor at the University of Texas-Pan American, and someone who has earned more

than $90,000 per year in the recent past, has the potential to earn much more than

minimum wage. Moreover, appellant testified that he had a substantial amount of money

in his savings account at the time of his move from Florida, which could have been used

to pay his child support obligations before it was diminished, and the record does not

include any evidence of appellant’s alleged efforts to obtain steady employment when he

moved back to Edinburg. Furthermore, we find it noteworthy that appellant failed to make

any child support payments, much less the required $1,073 in child support, to appellee

        7
         On appeal, appellant does not challenge the trial court’s award pertaining to the health insurance
coverage for the child.
                                                    13
for a period of approximately six months, even though he had some funds that could have

been used to pay. Such a failure to pay child support cannot possibly be in the best

interest of the child. As a result, we conclude that the trial court’s application of section

154.066 of the family code to this situation was not erroneous; thus, the trial court did not

abuse its discretion in finding that appellant was intentionally underemployed or

unemployed. See TEX . FAM . CODE ANN . § 154.066; Garner, 200 S.W.3d at 308; Zorilla, 83

S.W.3d at 253; see also Colvin, 2006 Tex. App. LEXIS 4496, at *15.

        After the trial court held appellant in contempt for failing to pay child support from

July 2007 to December 2007, the trial court reduced appellant’s child support obligations

from $1,073 to $575 per month. Appellant argues that this calculation is erroneous

because the trial judge indicated in open court that he intended to reduce appellant’s child

support obligations by one-half. Thus, one-half of $1,073 constitutes $536.50, rather than

the $575 amount indicated by the trial judge. Appellant further argues that the $575 figure

amounts to more than 32% of his net income and, therefore, violates section 154.062 of

the family code. See TEX . FAM . CODE ANN . § 154.062. We do not find appellant’s

argument that the trial court’s reduction of his child support payments constitutes more

than 32% of his net income or net resources to be persuasive because the record does not

contain competent evidence of appellant’s net income or net resources at the time of the

trial court’s decision. Without such information, we cannot determine that appellant’s net

income at the time of the trial court’s decision amounted to more than 32% of appellant’s

net income.8

        With respect to appellant’s first argument regarding the trial court’s calculation of

child support in the December 26, 2007 order, we reference the following statements made
        8
          In fact, when appellee’s counsel asked appellant what he m ade from his online teaching job,
appellant refused to divulge his salary and stated that he m ade “dollars,” as opposed to Japanese Yen, British
Pounds, Euros, and other world currencies that appellant referenced in his testim ony.
                                                     14
by the trial court at the hearing on appellant’s motion to modify and appellee’s motion for

enforcement:

       THE COURT:           All right. I am going to make a [determination], Mr.
                            Romero, in the following: You do owe child support of
                            [$]6,438 as of July through December. You are
                            responsible for that amount. That is $1[,]073 per
                            month.

                                   Now, I could make a determination that you
                            should continue paying the same amount of income—I
                            mean child support because you have the ability to earn
                            that type of income, but I am not going to make that
                            determination. I am going to decrease your child
                            support in half. You will be responsible as of today to
                            pay the amount of $575 child support as of today, but
                            you are responsible on [sic] paying the $6,438.

(Emphasis added.)

       A judgment or order that is rendered in writing and signed by the trial judge becomes

the official judgment of the court. See Harrington v. Harrington, 742 S.W.2d 722, 724 (Tex.

App.–Houston [1st Dist.] 1987, no writ). “Recitals in a judgment or signed order of the

court thus control over conflicting recitals in the record.” Capital Fin. & Commerce AG v.

Sinopec Overseas Oil & Gas, Ltd., 260 S.W.3d 67, 85 n.21 (Tex. App.–Houston [1st Dist.]

2008, no pet.); see In re JDN Real Estate-McKinney, L.P., 211 S.W.3d 907, 914 n.3 (Tex.

App.–Dallas 2006, orig. proceeding) (holding that a written order controlled over conflicting

oral pronouncement); see also In re Marriage of Ellis, No. 06-08-00012-CV, 2008 Tex. App.

LEXIS 6289, at *8 (Tex. App.–Texarkana Aug. 19, 2008, no pet.) (mem. op.) (citing In re

K.M.B., 148 S.W.3d 618, 622 (Tex. App.–Houston [14th Dist.] 2004, no pet.)). Here, the

trial court announced that appellant’s child support should be $575 per month, and the trial

court’s written order reflects the same amount. Cf. Keim v. Anderson, 943 S.W.2d 938,

946 (Tex. App.–El Paso 1997, no writ) (stating that, when the record reflects a clerical

                                             15
variance between the judgment announced in open court and the judgment which the trial

judge eventually signed, the appellate court can modify the judgment to correct the

mistake). Appellant bases his entire argument regarding the alleged erroneous child

support calculation on the trial court’s oral pronouncements in open court, which as we

have noted above, are of less significance than trial court’s written order.

       In any event, we believe that the trial court’s announcement of a specific amount of

child support is more significant than the generalized statement that appellant’s child

support was going to be decreased in half. See, e.g., TEX . GOV’T CODE ANN . § 311.026

(Vernon 2005) (providing that, when analyzing conflicts between general and specific

provisions in statutes, the special provision prevails as an exception to the general

provision). We surmise that the trial court’s usage of the terms “decrease . . . child support

in half” was merely to approximate the reduction in appellant’s child support. By arguing

that the trial court’s calculation of appellant’s child support did not exactly equal one half

of the original child support obligation, we cannot say that the trial court clearly abused its

discretion so as to compel us to modify the trial court’s child support order.

       Appellant’s final argument regarding the trial court’s child support award pertains to

an additional child support award to appellee to be used to enroll the child in private school.

Specifically, appellant complains about the part of the trial court’s order requiring him to

pay one-half of the private school tuition for the child in the event that appellee could not

pay the tuition and demonstrated to the trial court her inability to pay. The crux of this

argument, as we can tell, is that appellant complains that appellee allegedly never

requested such relief in the trial court and that the award violates several provisions of the




                                              16
family code.9 See TEX . FAM . CODE ANN . §§154.062, .066, .125 (Vernon Supp. 2009).

        A court may order additional child support depending on the income of the parties

and the proven needs of the children. Id. § 154.126(a) (Vernon 2008). An award of

support in excess of the statutory guidelines must be based on the unmet needs of the

child. See Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993); see also In re

J.A.H., No. 08-07-00245-CV, 2009 Tex. App. LEXIS 8876, at *10 (Tex. App.–El Paso Nov.

18, 2009, no pet.) (mem. op.). The needs of a child are not limited to “the bare necessities

of life.” Rodriguez, 860 S.W.2d at 417 n.3; Thomas v. Thomas, 895 S.W.2d 895, 896 (Tex.

App.–Waco 1995, writ denied). The needs of the child and the awarding of additional child

support are reviewed under an abuse of discretion standard on a case-by-case basis. See

Scott v. Younts, 926 S.W.2d 415, 420 (Tex. App.–Corpus Christi 1996, writ denied); see

also In re J.A.H., 2009 Tex. App. LEXIS 8876, at *11.

        Here, appellee testified that she and her current husband had fallen on hard times

and likely were not able to afford to pay her share of the child’s monthly private school

tuition of $400. The record contains IRS tax returns for the years 2006 and 2007, filed

jointly by appellee and her current husband. The tax returns reveal that appellee had an

adjusted gross income for 2006 and 2007 of $30,684 and $18,397, respectively. In

addition, appellee provided the trial court with a list of the family’s expenses, which added

up to $4,565 per month. On the other hand, appellant did not provide the trial court with

any documentation of his net resources at the time the additional child support was

ordered. Moreover, the dispute regarding the child’s education arose when appellee

indicated that she may no longer be able to pay for the child’s private school education and


       9
         Appellant’s argum ent that appellee never requested this form of relief in the trial court lacks m erit
because, as noted later, the record reflects that appellee orally m oved the trial court to provide such relief.
                                                      17
that she intended to enroll the child in a local public school. Appellant objected to the

child’s enrollment in the public school and insisted that the child remain enrolled in the

private school, even though appellee testified that she may not be able to afford to do so.10

Upon an oral motion made by appellee, the trial court ordered that the child remain in the

private school and that appellee pay for the tuition, presumably using the $575 in child

support received from appellant. However, the trial court also included a provision in its

order stating that, in the event that appellee cannot afford to pay the private school tuition,

she is to notify appellant and the trial court of her inability to do so and, after a hearing, the

trial court may order appellant to pay, in addition to his child support obligations, 50% of

the private school tuition.

         On appeal, appellant cites to various provisions of the family code that were

apparently violated; however, he does not explain exactly how these provisions were

violated. See TEX . R. APP. P. 38.1(i). In fact, section 154.123 of the family code provides

that the trial court may consider, among other things, “special or extraordinary educational”

expenses of the child when calculating child support payments, which would include private

school tuition for children.           TEX . FAM . CODE ANN . § 154.123(b)(13) (Vernon 2008).

Furthermore, the trial court’s order regarding the additional child support is contingent upon

the trial court’s finding that appellee cannot afford to enroll the child in private school, a

situation that, based on the record, does not appear to have happened. As such, it does

not appear to this Court that appellant’s argument pertaining to the private school tuition

is ripe for review.11 See Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851-52 (Tex.

         10
            W e note that appellant insists that his daughter attend private schools yet attem pts to avoid paying
the tuition to attend such schools.

         11
             Appellant has not presented any evidence to the trial court dem onstrating that appellee proved her
inability to pay; that the trial court ordered him to pay half of the private school tuition as a result of appellee’s
inability to pay; and that appellant has actually m ade such paym ents.
                                                         18
2000) (stating that a case is not ripe for determination of whether the plaintiff has a

concrete injury when the determination depends upon contingent or hypothetical facts, or

on events that have not yet occurred); see also In re H.B., No. 2-06-102-CV, 2006 Tex.

App. LEXIS 10247, at **5-7 (Tex. App.–Fort Worth Nov. 30, 2006, no pet.) (mem. op. on

reh’g) (holding that absent an actual injury from the operation of the family code,

appellant’s constitutional challenge was not ripe, and any opinion by the court on that issue

would be merely advisory). Accordingly, we overrule appellant’s first issue on appeal.

                          III. POSSESSION OF THE COUPLE’S CHILD

       In his second issue, appellant contends that the trial court abused its discretion in

denying him joint physical possession of the child. Specifically, appellant argues that the

trial court’s decision to allow appellee to maintain physical possession of the child while

allowing appellant visitation is not in the best interest of the child and is unconstitutional.

Appellee asserts that section 153.135 of the family code does not require that joint

managing conservators be given equal or nearly equal access to the child. See TEX . FAM .

CODE ANN . § 153.135 (Vernon 2008).

A.     Standard of Review

       The best interest of the child shall always be the court’s primary consideration in

determining issues of conservatorship, possession, and access to the child. TEX . FAM .

CODE ANN . § 153.002 (Vernon 2008). The trial court is given wide latitude to determine the

best interest of a minor child. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982);

In re C.R.T., 61 S.W.3d 62, 65 (Tex. App.–Amarillo 2001, pet. denied); see also In re

V.N.S., No. 13-07-00046-CV, 2008 Tex. App. LEXIS 5131, at *4 (Tex. App.–Corpus Christi

July 3, 2008, no pet.) (mem. op.). The judgment of the trial court regarding possession and

access to the minor child will be reversed only if it appears from the record as a whole that
                                            19
the court abused its discretion. See Gillespie, 644 S.W.2d at 451; see also Miles v.

Peacock, 229 S.W.3d 384, 391 (Tex. App.–Houston [1st Dist.] 2007, no pet.). Our review

must give deference to the trial court because it is in the best position to observe the

demeanor of the witnesses and evaluate their credibility. See In re De La Pena, 999

S.W.2d 521, 526 (Tex. App.–El Paso 1999, no pet.). A claim of abuse of discretion will not

succeed provided that some evidence of substantive and probative character exists to

support the trial court’s factual findings. See In re J.R.P., 55 S.W.3d 147, 151 (Tex.

App.–Corpus Christi 2001, pet. denied); see also Holley v. Holley, 864 S.W.2d 703, 706

(Tex. App.–Houston [1st Dist.] 1993, writ denied) (holding that the evidence need not be

compelling or conclusive to support the trial court’s exercise of discretion). Moreover, an

abuse of discretion ordinarily does not occur when the trial court bases its decision on

conflicting evidence. See In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.–Houston [1st Dist.]

2002, pet. denied).

       Section 153.135 of the family code provides that “[j]oint managing conservatorship

does not require the award of equal or nearly equal periods of physical possession of and

access to the child to each of the joint conservators.” TEX . FAM . CODE ANN . § 153.135; see

Garza v. Garza, 217 S.W.3d 538, 552 (Tex. App.–San Antonio 2006, no pet.). Additionally,

there is a rebuttable presumption that the standard visitation order provides reasonable

minimum possession of a child for a parent named as a joint managing conservator and

that such possession is in the best interest of the child. TEX . FAM . CODE ANN . § 153.252

(Vernon 2008).

B.     Discussion

       In the instant case, appellant argues that the trial court, by not allowing him equal

physical access with the child, reduced the time he could spend with his daughter, which
                                           20
is not in her best interest. Appellant further argues that this reduction in time affects his

ability to “parent” his daughter, which he alleges is a violation of his constitutional rights.

Appellant appears to take issue with the fact that appellee once lived a mere two blocks

away from appellant when they both resided in Edinburg. The proximity of their houses

allowed for appellant to be in “physical possession” of his daughter nearly 50% of the time.

However, once appellee and her family moved to El Paso, this became an impossibility.

In support of his argument, appellant states that “[b]eing with his daughter is the most

important source of [his] happiness[,] and it is also a source of happiness for his daughter.”

In his appellate brief, appellant requests that this Court reverse the trial court’s possession

order and award him “possession on alternative weeks during the school year and half of

the summer and Thanksgiving breaks[,] Christmas[,] spring break[,] and other holidays

should remain as they are currently ordered.”

       In the final divorce decree, the trial court appointed appellant and appellee as joint

managing conservators of the child. Appellee was granted the exclusive right to designate

the child’s primary residence within Hidalgo County. With respect to possession, the trial

court entered a possession order, which provided appellant with access to the child on:

(1) the first, third, and fifth weekends of every month; (2) Tuesdays during the school year

from 4:00 p.m. to 8:00 p.m.; (3) Wednesdays from 4:00 p.m. to 8:00 p.m. on weeks in

which he did not have weekend visitation; and (4) Thursdays during the school year from

4:00 p.m. to 8:00 p.m. The parties split possession on spring break and Thanksgiving,

and, in even-numbered years, appellant was allowed possession of the child on December

26 until the child’s Christmas break concluded. In odd-numbered years, appellant was

allowed visitation from the day the child’s Christmas break began until December 26.

       Appellant filed a motion to modify the possession schedule, and, after a hearing, the
                                             21
trial court, on February 27, 2008, modified the possession schedule to expand appellant’s

summer visitation and provided appellant visitation with the child on Father’s Day and

Friday night visitation. Yet, despite this expansion of the possession schedule, appellant

requests additional time with his daughter. Appellant argues that the trial court’s refusal

to expand his access to the child inhibits his ability to raise his own child, which violates the

Due Process Clause of the United States Constitution. See U.S. CONST . amend XIV.

         As previously mentioned, section 153.135 of the family code allows the trial court

to award joint managing conservators unequal access or possession of the child, and such

awards are presumptively in the best interest of the child. See TEX . FAM . CODE ANN . §§

153.135, .252. While we recognize that parents have a constitutional right to make

decisions concerning the care, custody, and control of their children, see Troxel v.

Granville, 530 U.S. 57, 65-66 (2000); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976),

appellant has not cited us to authority finding a constitutional infringement based on a trial

court’s order of unequal possession periods for divorced parents. Furthermore, to the

extent that appellant challenges the constitutionality of section 153.135, we will not address

such a contention because appellant failed to raise the challenge in the trial court. See

TEX . R. APP. P. 33.1; see also Carrizales v. Tex. Dep’t of Protective & Regulatory Servs.,

5 S.W.3d 922, 925 (Tex. App.–Austin 1999, pet. denied). Absent any authority finding that

section 153.135 of the family code infringes on the constitutional rights of parents to raise

their children, we cannot say that the trial court abused its discretion in denying appellant

joint physical possession on an equal basis with appellee. We overrule appellant’s second

issue.

                          IV. APPELLEE ’S ATTORNEY’S FEES AWARD

         In his third issue, appellant complains about two of the trial court’s orders requiring
                                               22
him to pay appellee’s attorney’s fees of $950 and $1,000, respectively. In particular,

appellant argues that appellee’s counsel engaged in several instances of professional

misconduct, which do not warrant an award of attorney’s fees. Because of this, appellant

alleges that the trial court treated him unfairly because he was advancing pro se. Appellant

requests that we order appellee to pay him $2,772 to account for his attorney’s fees.12 In

response, appellee contends that the family code authorizes the award of attorney’s fees

because she prevailed on the matters at issue.

A.      Applicable Law

        An award of attorney’s fees is prohibited unless authorized by contract or statute.

See MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009);

see also Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex. 2006).

Section 9.014 of the Texas Family Code provides for an award of attorney’s fees in

proceedings to enforce a divorce decree. TEX . FAM . CODE ANN . § 9.014 (Vernon 2008); see

In re Marriage of Malacara, 223 S.W.3d 600, 603 (Tex. App.–Amarillo 2007, no pet.); see

also O’Neal v. Forehand, No. 13-08-457-CV, 2009 Tex. App. LEXIS 5091, at *16 (Tex.

App.–Corpus Christi July 2, 2009, pet. denied). Furthermore, in disputes pertaining to child

custody, section 152.312(a) provides that the trial court:

        shall award the prevailing party, including a state, necessary and reasonable
        expenses incurred by or on behalf of the party, including costs,
        communication expenses, attorney’s fees, investigative fees, expenses for
        witnesses, travel expenses, and child care during the course of the
        proceedings, unless the party from whom fees or expenses are sought
        establishes that the award would be clearly inappropriate.

TEX . FAM . CODE ANN . § 152.312(a) (Vernon 2008). We review the trial court’s award of


        12
          Appellant asserts, by this issue, that appellee should pay his attorney’s fees; however, in the trial
court, appellant repeatedly argued that the parties should only be responsible for paying their own attorney’s
fees.
                                                     23
attorney’s fees for an abuse of discretion. See Chavez v. Chavez, 12 S.W.3d 563, 566

(Tex. App.–San Antonio 1999, no pet.); Schneider v. Schneider, 5 S.W.3d 925, 930 (Tex.

App.–Austin 1999, no pet.).

B.     Discussion

       The trial court first granted appellee’s counsel an award of $950 in attorney’s fees

on December 26, 2007, following appellee’s successful prosecution of her motion for

enforcement of child support pertaining to appellant’s failure to pay child support from July

2007 to December 2007. At the February 1, 2008 hearing on appellant’s motion to modify

the divorce decree, the trial court ordered appellant to pay appellee’s counsel $1,000 in

attorney’s fees, even though counsel had requested $4,000 in attorney’s fees.

       On appeal, appellant asserts that: (1) counsel for appellee presented orders to the

court without allowing appellant to review them; (2) the orders allegedly did not correspond

to the oral pronouncements made by the trial court; and (3) as a result of counsel’s actions,

appellant had to hire an attorney and incur $2,772 in attorney’s fees to correct the

discrepancies. Appellant, however, does not adequately explain on appeal how the orders

failed to correspond to the trial court’s oral pronouncements in open court. See TEX . R.

APP. P. 38.1(i). Furthermore, appellant does not direct us to a sworn affidavit that he

executed, which would support the veracity of his allegations that appellee’s counsel and

the trial court failed to allow him to review proposed orders. See In re Butler, 270 S.W.3d

757, 759 (Tex. App.–Dallas 2008, orig. proceeding) (“An affidavit is a statement in writing

of a fact or facts signed by the party making it, sworn before an officer authorized to

administer oaths, and officially certified to by the officer under his seal of office. . . . An

affidavit must affirmatively show it is based on the personal knowledge of the affiant. . . .

An affidavit is insufficient unless the statements in it are direct and unequivocal and perjury
                                               24
can be assigned to them.”) (internal citations and quotations omitted)).                          Moreover,

appellant complains that counsel’s attorney’s fee award was excessive “for doing basic and

routine work that is typically billed at a much lower rate.” The record does not contain

evidence to support appellant’s contention that the work done by appellee’s counsel was

basic and routine and regularly billed at a much lower rate; thus, such an accusation is

conclusory, speculative, and does not demonstrate an abuse of discretion by the trial court.

See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

Based on the foregoing, appellant has not demonstrated that the trial court abused its

discretion in awarding attorney’s fees to appellee’s counsel.13 See TEX . FAM . CODE ANN .

§§ 9.014, 152.312(a); see also Chavez, 12 S.W.3d at 566; Schneider, 5 S.W.3d at 930.

Accordingly, we overrule appellant’s third issue.

               V. THE TRIAL COURT’S REMOVAL OF A GEOGRAPHIC RESTRICTION

        In his fourth issue, appellant argues that the trial court violated section 105.002 of

the family code by ruling on appellee’s motion to modify the geographic restriction

contained in the divorce decree. See TEX . FAM . CODE ANN . § 105.002(c)(1)(E) (Vernon

Supp. 2009). Specifically, appellant contends that he requested a jury trial and paid the

appropriate fees; therefore, the trial court had no authority to rule on the geographic

restriction. See id.

A.      Applicable Law

        Section 105.002 of the family code governs jury trials in suits affecting the parent-

child relationship, including suits “to modify access rights,” Martin v. Martin, 776 S.W.2d

572, 574 (Tex. 1989) (considering the predecessor to section 105.002), and allows a party

        13
          Appellant also requests that we “reprim and” appellee’s counsel “for his m isconduct” and “report him
to the Texas Bar Association for violating its Texas Disciplinary Rules of Professional Conduct.” Because the
record does not support appellant’s allegations, we decline to do so.
                                                     25
to demand a jury trial in a suit affecting a parent-child relationship unless the suit seeks

adoption or to adjudicate parentage. See TEX . FAM . CODE ANN . § 105.002(a), (b); see also

Lenz v. Lenz, 79 S.W.3d 10, 11-12 (Tex. 2002). A party is entitled to a jury verdict, and the

trial court may not contravene a jury’s verdict on, among other things, the issue of “whether

to impose a restriction on the geographic area in which a joint managing conservator may

designate the child’s primary residence.” See TEX . FAM . CODE ANN . § 105.002(c)(1)(E); see

also Spencer v. Vaughn, No. 03-05-00077-CV, 2008 Tex. App. LEXIS 1708, at *39 n.10

(Tex. App.–Austin Mar. 6, 2008, pet. denied) (mem. op.).

B.     Discussion

       In his original answer to appellee’s motion to modify the geographic restriction

imposed in the divorce decree, appellant requested that a jury determine the issue

regarding the geographic restriction. The record, however, does not reflect that appellant

paid the required jury fee. In his appellate brief, appellant states that he paid the required

jury fee and directs us to an “exhibit 1" as evidence to support his statement. We are

unsure about the location of “exhibit 1" in the record, as appellant has not designated a

page number in the record for this evidence. We notice that attached to appellant’s original

answer to appellee’s motion to modify is an “exhibit 1,” which is possibly the “exhibit 1" to

which appellant was referring. However, “exhibit 1" is a blank, white page with only the

heading, “exhibit 1," at the top. This “exhibit” does not indicate that the required jury fee

was paid. Furthermore, in reviewing the remaining portions of the record, we do not find

any documentation that the jury fee was paid. See TEX . R. CIV. P. 216(b)14; see also
       14
            Texas Rule of Civil Procedure 216 provides as follows:

       a.        Request. No jury trial shall be had in any civil suit, unless a written request for a jury
                 trial is filed with the clerk of the court a reasonable tim e before the date set for trial
                 of the cause on the non-jury docket, but not less than thirty days in advance.

                                                        26
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 n.1 (Tex. 1996) (noting that

the time limitations apply with equal force to the application for jury trial and the payment

of the jury fee); Huddle v. Huddle, 696 S.W.2d 895, 895 (Tex. 1985) (op. on reh’g) (per

curiam). Thus, appellant has not satisfied the prerequisites for obtaining a jury trial on this

issue.

         As a result, the trial court conducted the hearing on appellee’s motion to modify the

geographic restriction.15 As noted earlier, the trial court concluded that appellee had

violated the original geographic restriction contained in the divorce decree and held her in

contempt. Appellee was fined $500 and was ordered to pay $1,500 of appellant’s

attorney’s fees, among other things. In addition, appellant received a child-support credit

of $1,489.32 to compensate him for appellee’s violations.

         Because appellant has not directed us to any evidence demonstrating that he

satisfied the prerequisites for requesting a jury trial, and because the trial court noted in its

August 18, 2009 order that the parties had waived their rights to a jury trial, we cannot say

that the trial court violated section 105.002 of the family code by addressing appellee’s

request to lift the geographic restriction. See TEX . FAM . CODE ANN . § 105.002. We overrule

appellant’s fourth issue.

                                VI. APPELLANT ’S ENFORCEMENT MOTION

         In his fifth issue, appellant asserts that the trial court treated him unfairly and that

         b.       Jury Fee. Unless otherwise provided by law, a fee of ten dollars if in the district court
                  and five dollars if in the county court m ust be deposited with the clerk of the court
                  within the tim e for m aking a written request for a jury trial. The clerk shall prom ptly
                  enter a notation of the paym ent of such fee upon the court’s docket sheet.

T EX . R. C IV . P. 216. The trial court’s docket sheet does not reflect that the jury fee was ever paid by appellant.
See id. at R. 216(b). Furtherm ore, appellant has not filed a sworn statem ent in the trial court indicating his
inability to pay the required jury fee. See id. at R. 217.

         15
            In further support of our conclusion in this issue, the trial court, in its August 18, 2009 order, stated
that the parties had waived their rights to a jury trial on this issue.
                                                         27
the trial court delayed his case, which “amplified the damage that Mrs. [Zapien] has done

to the parent/child relationship.” Appellant also complains that the trial court only awarded

him seven days of access to the child when he had been denied ninety-seven days of

access. Furthermore, appellant argues that the trial court treated him unfairly by not

holding appellee responsible for all of his costs to visit the child in El Paso despite the trial

court’s finding that appellee had violated the geographic restriction contained in the divorce

decree. As a result of these alleged inequities, appellant requests that we sustain this

issue and award him ninety extra days of access to the child and $3,517 in costs

associated with visiting his daughter in El Paso and $8,440 in attorney’s fees. See TEX .

FAM . CODE ANN . §§ 157.167(b), .168 (Vernon 2008).

A.     Applicable Law

       Section 157.168 of the family code provides that a party may be awarded additional

periods of access to a child to compensate for the denial of court-ordered possession or

access. Id. § 157.168(a). It is within the discretion of the trial court to determine whether

to grant such an award; however, if the trial court chooses to grant the award, the

additional periods of access or possession “must be of the same type and duration of the

possession or access that was denied.” Id. § 157.168(a)(1).

B.     Discussion

       On August 18, 2009, the trial court, after finding that appellee had violated the

geographic restriction contained in the divorce decree and had, therefore, deprived

appellant of access to his daughter, awarded appellant seven days of additional

possession or access during either the Thanksgiving or Christmas holidays of 2009. The

trial court’s order specifies that appellee denied appellant access to the child repeatedly

from July 2008 to July 2009. At the time in which appellee denied appellant access to the
                                            28
child, the trial court’s February 27, 2008 visitation order was in effect, which provided

appellant with much more than seven days’ access to the child. Because the trial court

concluded that appellee had denied appellant access to the child and, because the trial

court granted appellant additional access as compensation, the trial court was obligated

under section 157.168 to provide appellant with access or possession “of the same type

and duration of the possession or access that was denied.” See id. Clearly, the trial

court’s award of one week of additional visitation with the child shortchanges appellant for

the access and visitation he was denied by appellee from July 2008 to July 2009. See id.

Appellant appears to be entitled to much more than one weeks’ visitation in compensation

for appellee’s denial of access to the child. See id. As such, we conclude that the trial

court erred in applying section 157.168 of the family code to compensate appellant for

access and visitation denied to him by appellee. See id.

       With respect to his contention that the trial court treated him unfairly, appellant

baldly asserts that “[t]he judge [a visiting judge for the Hidalgo County Court at Law No. 1]

clearly made up her mind without hearing all the facts.” Appellant directs us to one page

from the final hearing where the trial judge, after hearing the parties make the same

arguments over and over again, inquired: “Is there anything that you feel needs to be

reiterated or that I need to hear that may change my mind in the next five minutes . . .?”

Based on this statement, appellant suggests that the trial court treated him unfairly. We

disagree.

       The record reflects that appellant repeatedly made the same arguments to the trial

court, each time hoping for a different result. Furthermore, as indicated by the various

orders entered by the trial court, appellant won on several issues he raised. Just because

he did not win on every issue raised does not mean that the trial court treated him unfairly.
                                           29
Moreover, appellant has not cited any legal authority supporting his claims. See TEX . R.

APP. P. 38.1(i). Accordingly, in reviewing the record in its totality, we cannot say that

appellant was treated unfairly or that the trial court was biased against appellant.

       Regarding appellant’s request for appellee to pay $3,517 in costs associated with

his trips to El Paso to visit his daughter, appellant cites us to section 157.167 of the family

code, which does not support his contention. See TEX . FAM . CODE ANN . § 157.167

(providing for the recovery of attorney’s fees and court costs when the trial court finds that

the respondent has failed to: (1) make child support payments; or (2) comply with the

terms of an order providing for the possession of or access to a child). Moreover, appellant

does not cite us to portions of the record, such as receipts or other documentary evidence,

supporting his argument that the trial court should have awarded him the $3,517 in costs

associated with his trips to El Paso. See TEX . R. APP. P. 38.1(i). Thus, we conclude that

his request for the $3,517 in costs is inadequately briefed. See id. Additionally, appellant’s

argument that he is entitled to $8,440 in attorney’s fees lacks merit because the trial court,

in its August 18, 2009 order, ordered appellee to pay appellant $1,500 in attorney’s fees,

which would correspond to section 157.167(b)'s requirement that the respondent pay

attorney’s fees and costs if the trial court finds that they have failed to comply with a court

order. See TEX . FAM . CODE ANN . § 157.167(b). Moreover, appellant has not directed us

to any evidence in the record demonstrating his entitlement to attorney’s fees in addition

to those already awarded.

       Based on the foregoing, we sustain appellant’s fifth issue as it pertains to the trial

court’s award of access and visitation to the child under section 157.168 of the family code.

See id. § 157.168. We overrule the remainder of appellant’s fifth issue.

                                      VII. CONCLUSION
                                             30
       With respect to the trial court’s award of access and visitation to appellant to

compensate for appellee’s denial of access from July 2008 to July 2009, we reverse and

remand for the trial court to calculate the appropriate amount of access and visitation to

which appellant is entitled under section 157.168 of the family code. See id. We affirm the

remaining aspects of the trial court’s orders.


                                                 ROGELIO VALDEZ
                                                 Chief Justice


Delivered and filed the
24th day of June, 2010.




                                            31
