COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE INTEREST OF A.N.G., a

CHILD.

§

§

§

§

§

§

No. 08-19-00088-CV

Appeal from the

383rd District Court

of El Paso County, Texas

(TC# 2010CM094)

O P I N I O N

Benjamin Joseph Gutierrez (“Father”) and Araceli M. Jimenez (“Mother”) are the parents 

of A.N.G., a minor child. Father, an attorney who now is acting pro se, appeals from the trial 

court’s order granting Mother’s petition to modify a prior order in a suit affecting the parent-child 

relationship. Father complains the trial court committed reversible error in granting a directed 

verdict favorable to Mother on matters pertaining to the parties’ joint managing conservatorship. 

Father also complains the court erred in modifying the geographic restriction imposed on the

child’s primary residency, erred in failing to consider the report of the court-appointed counselor, 

erred in determining awards for child support and medical support, and erred in awarding 

attorney’s fees. We affirm.
2

I. BACKGROUND

On February 6, 2012, the trial court signed 1an Order Adjudicating Parentage (the 

Parentage Order) which appointed Father and Mother as joint managing conservators of A.N.G.

and giving Mother the exclusive right to designate A.N.G.’s residence within El Paso County. The 

Parentage Order included both a possession and access schedule for a child under three and an 

extended standard possession order that took effect after A.N.G. reached three years of age. The 

Parentage Order also ordered Father to pay child support and medical support in the amount of

$240 and $57.17, respectively, on a monthly basis.

On December 11, 2012, Mother filed a petition to modify the Parentage Order asserting 

that circumstances of the child, a conservator, or other party affected by the order had materially 

and substantially changed since the date of its rendition. Specifically, Mother requested a reduction

in Father’s periods of possession and access to A.N.G. and requested these periods be made 

contingent upon continued and continuous visitation. Mother also requested that Father’s periods 

of visitation be continuously supervised by an entity or person chosen by the court pending a 

reestablishment of the parent-child relationship. Mother generally asserted a modification of the 

prior order would be consistent with the best interest of the child.

In July 2013, Mother served the petition to modify the prior order on Father after months 

of searching for his physical address. In September, she amended her petition to request that she 

be appointed sole managing conservator of A.N.G. In October, Father filed an answer generally 

denying Mother’s allegations. In November, after a hearing in which Mother appeared with her 

1 On its face, the order indicates the trial court heard the matter on March 29, 2011, April 19, 2011, and June 6, 

2011.
3

attorney but only Father’s attorney appeared, the trial court entered a miscellaneous order that 

immediately suspended all visitation until Father presented himself to the court. The trial court 

also ordered Father to submit to a psychological evaluation before December 16, 2013.

On June 27, 2014, the order2suspending Father’s visitation was set aside. In November 

2015, Father filed a pro se counter petition, amended in August 2017, in which he asserted a 

material and substantial change in circumstances due only to the modification proceedings. Father 

asserted his requests were made “[s]o long as these proceedings persist . . . .” Interim temporary 

orders were entered on May 15, 2018, in which the trial court granted Father visitation with A.N.G. 

at paternal grandparents’ house each Wednesday and Saturday for two-hour periods, ordered both 

parents to participate in counseling with the child, and ordered each parent to produce income 

information. In October 2018, Mother filed a second amended petition to modify which added a 

request for modification of child support.

On October 29, 2018, before the start of a scheduled jury trial, Mother sought to non-suit 

the issues concerning her requests to be appointed sole managing conservator and, alternatively,

the lifting of the geographic restriction under joint managing conservatorship. As Mother described

to the court, the matters left pending would be decided at the court’s discretion and the only issues 

being submitted to the jury would be Father’s request to be appointed sole managing conservator,

or in the alternative, being appointed the joint managing conservator with the exclusive right to 

designate the primary residence of the child. Afterwards, the jury heard testimony from both 

parents.

2 Although the order is titled, “Order Setting Aside Default Judgment,” it is otherwise described in substance as 

“temporary orders.”
4

Immediately after presentation of such testimony, Father rested. Mother next moved for a 

directed verdict on the issues of modification of the conservatorship of A.N.G. urging that Father

had failed to establish a material or substantial change in circumstances and that modification 

would be in the best interest of the child. Mother requested the court grant the directed verdict and 

proceed directly to those issues decided within the court’s discretion including an award of 

attorney’s fees. The trial court granted Mother’s motion for directed verdict; the trial court also 

found that Father was a vexatious litigant; awarded attorney’s fees in the amount of $13,231.41,

and anticipatory attorney’s fees in the amount of $10,000 in the event of an appeal to the Court of 

Appeals, and in the amount of $5,000 in the event of an appeal to the Texas Supreme Court; and

ordered a bond of $10,000 be set pending any further litigation filed by Father. The trial court 

orally pronounced that Father was awarded possession and access according to the standard 

possession order in the Family Code; also, the court awarded a right of first refusal to Father and

ordered no geographical restriction would be imposed. Lastly, the trial court pronounced child 

support would be set based on an annual income of $43,000, medical support would be set at

$242.98 a month with each party splitting the cost of any uncovered medical expenses.

On January 4, 2019, the trial court signed a written order titled, “Order in Suit to Modify 

Parent-Child Relationship,” granting Mother’s petition to modify the prior order. In relevant terms, 

the written order provided as follows: (1) Mother and Father remained joint managing conservators 

of A.N.G.; (2) Mother remained the conservator having the exclusive right to designate the primary 

residence of A.N.G. within El Paso County, Texas; (3) possession and access granted to Father 

according to the standard possession order; (4) child support ordered at $514 a month; (5) medical 

support ordered at $242.98 a month; and (6) attorney’s fees awarded to Mother in the amount of 
5

$13,231 and anticipatory attorney’s fees in the amount of $10,000 in the event of an appeal to the 

Eighth Court of Appeals and in the amount of $5,000 in the event of an appeal to the Texas 

Supreme Court.

On January 24, 2019, Father filed a Request for Findings of Fact and Conclusions of Law,

followed by a Notice of Past Due Findings of Fact and Conclusions of Law on February 27, 2019, 

neither of which received a response from the trial court. On February 5, 2019, Father filed a 

motion for new trial, which was overruled by operation of law. This appeal followed.

II. DISCUSSION

In five issues on appeal, Father asserts the trial court erred as follows: (1) in not permitting 

the jury to proceed to verdict “to determine if a modification is warranted when factually and 

legally there was grounds for material and substantial change to be held[,]” (2) in modifying the 

geographic restriction when the trial court directed the verdict from the jury, (3) in not admitting 

the counselor’s report, (4) in setting child and medical support, and (5) in awarding attorney’s fees.

We consider each issue but not in the order presented.

A. Briefing Waiver 

As a preliminary matter, Mother contends that Father waived each of his issues due to 

inadequate briefing. To some degree, we agree.

The Texas Rules of Appellate Procedure control the required contents and the organization 

for an appellate brief. Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.). 

To comply with Rule 38.1, an appellant’s brief must contain clear and concise arguments including 

appropriate citations to legal authority and to the record. TEX. R. APP. P. 38.1(i); Collins v. Walker, 

341 S.W.3d 570, 575 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (sub. opinion). Mere 
6

uttering of brief, conclusory statements unsupported by citation to legal authorities does not satisfy 

briefing requirements. Collins, 341 S.W.3d at 575. The Texas Supreme Court has continuously 

recognized that an issue may be waived when appellant fails to provide citations, argument, or 

analysis. Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 500 (Tex. 2015). Yet, we are also 

instructed by the Supreme Court of Texas “to construe the Rules of Appellate Procedure 

reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not 

absolutely necessary to effect the purpose of a rule.” Republic Underwriters Ins. Co. v. Mex-Tex, 

Inc., 150 S.W.3d 423, 427 n.15 (Tex. 2004) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-

17 (Tex. 1997)).

Considering that a party should not lose its right to appeal based on an unduly technical 

application of the procedural rules, we are still not required to perform research nor develop an 

argument for an appellant who inadequately prepares an appellate brief. Tucker v. Fort Worth & 

W. R.R. Co., No. 02-19-00221-CV, 2020 WL 3969586, at *1 (Tex. App.—Fort Worth June 18, 

2020, pet. denied) (mem. op.). Stated differently, “[w]e have no duty—or even right—to perform 

an independent review of the record and applicable law to determine whether there was error.” Id.

1. Counselor’s Reports

In Father’s third issue he references that the parties were ordered to schedule appointments 

with Rosalba Navarrete, in which Navarrete would make reports on the progress to the court. And 

Father further states that he currently has pending motions before the trial court relating to the 

availability of Navarrete’s report. Father then argues it is unclear whether Navarrete’s report was 

considered in the court’s judgment given that the trial court did not file any findings of fact or 

conclusions of law.
7

The appellate record shows that Navarrete was not called to testify, no counselor’s report 

was ever entered into evidence, and no mention of counseling was made during trial. Beyond 

Father’s bare assertion about the trial court ordering such counseling, he otherwise makes no clear 

and concise argument about the counseling report, nor provides proper citation to authorities. See

TEX. R. APP. P. 38.1(i). Because Father’s third issue does not comply with the requirements of 

Texas Rule of Appellate Procedure 38.1, he has waived it on appeal. Because it has been waived, 

we overrule Father’s third issue.

2. Child and Medical Support

The trial court’s order includes a child support order and a medical support order for the 

cost of health insurance coverage for A.N.G. Father was ordered to pay child support in the amount 

of $514 per month and medical support in the amount of $242.98 per month, with both payments 

beginning on November 1, 2018. In his fourth issue, Father asserts the trial court abused its 

discretion by ordering child support and medical support that fails to account for his historical 

earnings and notable debts. He argues no evidence shows his actual earnings had increased; and 

claims the evidence showed several instances of indigency. Father generally contends the increase 

in child support and medical support “is unsustainable for [Father] in the long run due to [his] other 

associated debts” and his “businesses require liquid assets on hand to run successfully” therefore, 

the amount of support ordered will accelerate his insolvency.

A trial court is permitted to modify an order providing support for a child pursuant to the 

Texas Family Code. See TEX. FAM. CODE ANN. § 156.401(a). Furthermore, the trial court sets 

support according to guidelines set out in the Texas Family Code. See TEX. FAM. CODE ANN. § 

154.061-.070, .121. From briefing, it is unclear whether Father’s complaint is based on the 
8

modification of the child support itself or of the amount the child support was set at, or both. Father 

neither explains how the trial court abused its discretion in calculating his child support obligation 

nor what he believes the correct calculations should have been. Other than a passing reference, he 

does not further address the medical support order.

Even construing Father’s brief liberally, he fails to guide us to any authorities showing the 

trial court abused its discretion in its child and medical support orders. TEX. R. APP. P. 38.1(i); Fox 

v. Alberto, 455 S.W.3d 659, 668 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Although 

Father filed a request for findings of fact and conclusions of law, his request was not made within 

20 days after October 29, 2018, the date the court rendered the child support order. See TEX. FAM.

CODE ANN. § 154.130 (a)(1) (stating the trial court shall make required findings “if a party files a 

written request with the court before the final order is signed but not later than 20 days after the 

date of rendition of the order.”). When no findings of fact or conclusions of law are filed, we 

presume that the trial court made such findings and conclusions necessary to support the judgment. 

In re D.S., No. 07-12-00312-CV, 2013 WL 625725, at *2 (Tex. App.—Amarillo 2013, no pet.). 

Our review of the record supports the trial court’s modification of support as it had been at 

least eight years since the prior order and there was a showing of Father’s changed circumstances. 

TEX. FAM.CODE ANN. § 156.401(a). The record also shows the evidence supported the trial court’s 

finding of an earning capacity of $43,000 when Father testified such was a schoolteacher’s salary 

in El Paso. Father also testified to having several advanced degrees, being licensed to teach in 

Texas, and being a solo practicing attorney. Mother testified that child support was set at a 

substitute teacher rate in the prior order. Without controverting evidence from Father about his 

actual earnings (which he failed to provide), the trial court acted properly in relying on the 
9

testimony given by him as to his abilities and his earning potential. See TEX. FAM. CODE ANN. § 

154.066(a). Father testified he was currently ordered to pay $247 per month for the cost of health 

insurance for A.N.G. We conclude the trial court’s implied findings are supported by the record.

We overrule Father’s fourth issue.

3. Attorney’s Fees 

In his fifth issue, Father asserts the court’s award of attorney’s fees are “unreasonable and 

unnecessary when the party seeks litigation for years only to nonsuit at the commencement of the 

jury trial.” Father asserts the issue with the award of attorney’s fees is that it “include[s] efforts 

and activities” regarding the requests Mother non-suited and that they are “associated with actions 

includ[ing] avoidance of Mediation . . . or drafting a motion to strike a jury trial . . . .”

We are unclear what Father’s specific complaint to attorney’s fees is because he cites no 

authority in his brief regarding attorney’s fees nor otherwise develops a clear and cogent argument. 

Without more, this issue is inadequately briefed and presents nothing for our review. TEX. R. APP.

P. 38.1(i); In Interest of E.G., No. 02-16-00302-CV, 2017 WL 3821862, at *4 (Tex. App.—Fort 

Worth Aug. 31, 2017, no pet.). Accordingly, Father’s fifth issue is overruled.

B. Change in Conservatorship 

In his first issue, Father asserts the trial court erred in granting a directed verdict against 

him and in favor of Mother. Father argues the trial court erred in not permitting the jury to decide 

whether there was a material and substantial change warranting a modification of conservatorship. 

Father contends that there was “notable” evidence to show a material and substantial change.

1. Standard of Review

“A directed verdict in favor of defendant is appropriate when the plaintiff does not present 
10

evidence to raise a fact issue that is essential to the plaintiff’s right of recovery.” Brazoria County 

Children’s Protective Services v. Frederick, 176 S.W.3d 277, 279 (Tex. App.—Houston [1st Dist.] 

2004, no pet.). We review a granted directed verdict under the legal sufficiency standard and we 

are required to review the evidence in the light most favorable to the party against whom the 

directed verdict was rendered and we must disregard all contrary evidence and inferences. City of 

Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); Connell v. Connell, 889 S.W.2d 534, 538 

(Tex. App.—San Antonio 1994, writ denied). We must credit all favorable evidence if reasonable 

jurors could and disregard any contrary evidence unless reasonable jurors could not. City of Keller, 

168 S.W.3d at 827.

2. Applicable Law

A trial court may modify the terms and conditions of conservatorship only if the 

modification is in the child’s best interest, and the circumstances of the child, a conservator, or 

other party affected by the order have materially and substantially changed since the earlier of (1) 

the rendition of the order; or (2) the date of the signing of a mediated or collaborative law 

settlement agreement on which the order is based. TEX. FAM. CODE. ANN. § 156.101(a)(1). The 

party seeking modification bears the burden to establish these elements by a preponderance of the 

evidence. In re B.L.J.P., No. 04-14-00015-CV, 2014 WL 5020121, at *2 (Tex. App.—San Antonio 

Oct. 8, 2014, no pet.) (mem. op.). In determining whether a sufficient change in circumstances has 

occurred warranting a modification, the movant must show evidence of the conditions that existed 

at the time of the prior order compared with evidence of the conditions that exist at the time of the 

modification hearing. Interest of L.B., No. 02-19-00345-CV, 2020 WL 1808486, at *5 (Tex. 

App.—Fort Worth Apr. 9, 2020, pet. denied) (mem. op.). Without both historical and current 
11

evidence of relevant circumstances, the court has nothing to compare and cannot determine 

whether a change of circumstances has occurred. Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. 

App.—Austin 2006, pet. denied). A trial judge has the discretion to find that no evidence has been 

produced to show a material and substantial change in circumstances and find no fact question 

exists for the jury to decide. Frederick, 176 S.W.3d at 279; see also In re C.A.N.M., No. 02-04-

200-CV, 2005 WL 1356443, at *3 (Tex. App.—Fort Worth June 9, 2005, no pet.) (mem. op.) (“A 

directed verdict is proper only when the evidence conclusively establishes the right of the movant 

to judgment or negates the right of the opponent or when the evidence is insufficient to raise a 

material fact issue.”).

a. Judicial Admission

Father first asserts an argument that Mother made a judicial admission that circumstances 

had materially and substantially changed since the previous order in her requests for sole managing 

conservator and lifting of geographic restriction in her prior pleadings.

In a modification proceeding, if both parties’ claims contain the common essential element 

of changed circumstances of one or more of the parties, one party’s allegation that the essential 

element is met constitutes a judicial admission. In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—

Dallas 2013, no pet.) (“One party’s allegation of changed circumstances of the parties constitutes 

a judicial admission of the common element of changed circumstances of the parties in the other 

party’s similar pleading.”). Admissions in trial pleadings are observed as judicial admissions and 

require no proof of the admitted fact. Id. However, a party’s nonsuit results in that pleading being 

no longer a live pleading and it can no longer serve as a basis for a judicial admission. Interest of 

H.P.J., No. 14-17-00715-CV, 2019 WL 1119612, at *5 (Tex. App.—Houston [14th Dist.] Mar. 
12

12, 2019, no pet.) (mem. op.).

Here, Mother non-suited and abandoned her requests for a change in conservatorship and 

issues surrounding the domicile restriction before the commencement of the jury trial. Mother

continued in her request for modification of possession and access, for medical and child support, 

as well as a request for attorney’s fees. Due to the nonsuit, Mother’s prior pleading asserting a 

material and substantial change of circumstances supporting her request for sole managing 

conservatorship, was no longer a live pleading. Interest of H.P.J., 2019 WL 1119612, at *5. For 

these reasons, we do not find that Mother made a judicial admission as to change in circumstances 

justifying a change in conservatorship. See Epps v. Deboise, 537 S.W.3d 238, 246 (Tex. App.—

Houston [1st Dist.] 2017, no pet.) (holding assertions of material and substantial change relevant 

to a request for change in terms of visitation and child support do not constitute a judicial admission 

of material and substantial change regarding change in conservatorship).

Father also asserts that Mother made a “quasi-admission” as to changed circumstances 

before the jury while testifying. Yet, in his briefing, Father fails to reference the full context of 

Mother’s testimony. The relevant portion of testimony in which Father claims that Mother made a 

judicial admission is presented in full context as follows:

MOTHER’S ATTORNEY: [Father] has filed claiming that he should be named as 

the sole managing conservator or that somebody should be named as sole managing 

conservator. You understand that?

MOTHER: Yes. 

MOTHER’S ATTORNEY: If anyone should be named the sole managing 

conservator as he asked, who should that be?

MOTHER: It should be myself.

MOTHER’S ATTORNEY: It’s your allegation that there is no material and 
13

substantial change in circumstances that would warrant altering that 2012 order at 

this point? You[’re] only responding to [Father’s] request that somebody be named 

sole managing conservator?

MOTHER: Well, there is substantial and material changes on his part. The child 

support was even set at a substitute teacher rate, which he was back then. But he 

has five degrees, and he’s more than capable of working, so there have been 

material changes on his part.

MOTHER’S ATTORNEY: I don’t want the jury to be misled. There are only 

certain issues that the jury decides in Texas and then there’s certain issues that the 

judge decides. With respect to modifying the conservatorship, who has the primary 

rights or things like that, are you telling this jury that that needs to be changed?

MOTHER: Right now we’re still technically working under the joint custody with 

me being the primary residential -- primary custodian of my daughter. That’s what 

I’ve been doing, and she’s been doing well. So no, but if they want to name -- if 

they have to name a sole, then I would appreciate they consider myself.

Viewing the record as a whole, Mother spoke about the change of circumstances relating 

to her request for a modification of the child support order, a request that still remained as a live 

pleading at the time. Her admission about change of circumstances regarding child support does 

not constitute a judicial admission as to changes concerning conservatorship. Epps, 537 S.W.3d at 

246. Furthermore, Mother’s response to Father’s questioning that she should be named sole 

managing conservator was only made as a contingent request, that is, contingent on the jury first 

reaching Father’s request for a change of conservatorship from joint managing conservator to sole

managing conservator. On this record, we do not find that Mother made a judicial admission

relating to the conservatorship issue.

b. The Evidence 

At trial, Father called Mother as his first witness. Mother testified about different times 

when Father would notify her that he would or would not be able to exercise his period of 

possession. Mother also responded to questions about the timeline of the current litigation 
14

including when certain motions were filed and when orders were entered. Mother testified she and 

Father were named joint managing conservators under the prior order and A.N.G. was doing well.

Father then called himself and testified regarding his pursuit of both a law degree and an 

MBA degree as of the prior order, as well as steps he hoped to take in pursuing his career. He also 

testified to the reasons for multiple recusals and mandamuses he filed in this suit. At one point, 

Father testified he attempted to dismiss Mother’s initial pleading that sought “change of 

conservatorship . . . .” He further conceded that Mother was “sufficient in being the designee of 

the primary residence” so long as their interactions remained amicable. When asked why he 

insisted he receive “one more day of possession than [Mother],” Father mentioned the reason being 

so he could receive government benefits. He did testify about enjoying time he spent cooking with 

A.N.G. and other activities such as “fine arts stuff . . . .” He expressed his desire to care for 

A.N.G.’s needs and to participate in her growth.

On appeal, Father argues there was evidence presented of “allegations of domestic 

violence” made by Mother against Father. He argues that because of this evidence, the jury could 

have reached a conclusion that a material and substantial change in circumstances occurred and

warranted a modification of conservatorship. He argues “if credible evidence was presented of a 

history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed 

against the other parent or a child then the court is precluded from appointing parents as joint 

managing conservators.”

It appears in his briefing Father attempts to argue that because he testified about abuse 

allegations made against him by Mother, he should be named the sole managing conservator, even 

though he is the party against whom allegations were made. We disagree. Father misconstrues
15

what the applicable statute means or what is meant by its terms. See TEX. FAM CODE ANN. §

153.004 (stating the trial court shall consider evidence of abuse in appointing a party as sole or 

joint managing conservator and states it is a rebuttable presumption that appointment of a parent 

as sole or joint managing conservator with the exclusive right to determine primary residence is 

not in the best interest of the child if there is credible evidence of past or present abuse by that 

parent). Father tries to support his argument by going beyond the appellate record and referencing 

findings made during the final hearing of the prior order and to matters that occurred since trial. 

However, there was no evidence of abuse or neglect introduced at trial and the trial court made no 

such finding of abuse. Accordingly, Father’s argument fails.

Father also attempts to argue that the record contains evidence of domestic abuse 

allegations made against him by Mother occurring after the entry of the prior order. He references 

section 153.013 as a basis for “false reports of child abuse is admissible evidence . . . regarding 

the terms of conservatorship of a child.” See TEX. FAM CODE ANN. § 153.013. Father never pleaded

any false reporting as a basis for modification in any of his pleadings. Furthermore, no such

evidence of any false allegations was offered or admitted into evidence. Mother testified that

Father had been absent from A.N.G.’s life and Mother changed her address and her phone number 

because Father was “harassing” her. But no evidence of any false reports or allegations made by 

Mother was presented to the jury.

On review of the record and viewing the evidence in a light most favorable to Father, the 

evidence presented was not sufficient to raise a fact question on whether a material and substantial 

change of circumstances was warranted. See TEX. FAM CODE ANN. § 156.101; In re C.A.N.M., 

2005 WL 1356443, at *3. Although the jury heard testimony regarding Father’s educational 
16

achievements, his career plans, and his complaints about litigation matters, there was no showing 

of any material or substantial change of circumstances with regard to A.N.G., Father, or Mother.

Nor did Father present evidence that a modification would be in the child’s best interest. We 

conclude that the evidence presented by Father failed to raise triable issues of fact for the jury’s 

determination of a modification of the terms and conditions of conservatorship; and thus, the trial 

court did not err in granting a directed verdict against Father on his request for modification of the 

parties’ conservatorship. Frederick, 176 S.W.3d at 279.

Father’s first issue is overruled.3

C. Geographic Restriction

In his second issue, Father asserts it was improper for the trial court to modify the 

geographic restriction imposed on a joint managing conservatorship when the trial court directed 

the verdict from the jury. He argues that a party may demand a jury trial in the determination of 

geographic restrictions. See TEX. FAM. CODE ANN. § 105.002(c)(1)(E-F). Mother responds that 

Father effectively waived this issue as he did not cite any authority to substantiate his argument. 

As we have previously addressed, we are required to construe procedural rules reasonably, yet 

liberally and consider the importance of a party not losing its right to appeal based on unduly 

3 Father makes an additional argument that his pleadings were not defective, and the trial court never provided any 

opportunity to cure such defects. We find this argument does not need to be addressed as any defects in Father’s 

pleadings were not the basis the trial court granted the directed verdict. Specifically, the trial court stated:

I find your pleadings, your amended respondent’s counter-petition, to be problematic in that in as 

much as it’s a judicial admission, you indicate that only due to these ongoing modification 

proceedings and the events that occurred have material -- have circumstances materially and 

substantially changed. . . . And so regardless of that, you were granted the jury trial . . . . But in the 

entire course of the proceedings you have failed to establish that the circumstances of either yourself 

or the mother or the child have materially and substantially changed . . . .

Any defects in Father’s pleadings were not the basis for the trial court’s directed verdict denying the modification and

Father was able to present his case. For this reason, whether Father’s pleadings were defective or not is not an issue 

before this Court.
17

technical application of such rules. Mex-Tex, Inc., 150 S.W.3d at 427 n.15. Although Father relies 

on Section 105.002 of the Texas Family Code in asserting that the modification of the geographical 

restriction was an issue that should have been made by the jury, he does not otherwise cite to any 

other authority or further develop his argument. See TEX. FAM. CODE ANN. § 105.002(c)(1)(E)-

(F). Heeding the warning to construe briefing liberally and noting Father’s citation to statutory 

authority, we will address his second issue. See TEX. R. APP. P. 38.1(i); Mex-Tex, Inc., 150 S.W.3d 

at 427 (finding issue not waived when Appellant cited the statute, and it was unclear what further 

authority was necessary as the analysis relied on the statutory language).

Father argues the trial court acted improperly when the trial court commented in open court

while rendering its decision that a geographical restriction would not be imposed. But we note that 

the trial court later entered a final order which stated the following concerning geographic 

restriction:

IT IS FURTHER ORDERED that [Mother] shall have the exclusive right to 

designate the child’s primary residence within El Paso County, Texas.

IT IS FURTHER ORDERED that this geographic restriction on the residence of 

the child shall be lifted if, at the time [Mother] wishes to remove the child from El 

Paso County, Texas for the purpose of changing the primary residence of the child, 

[Father] does not reside in El Paso County, Texas.

A written judgment or order will control over a trial court’s oral pronouncement. Interest 

of D.A.Z., 583 S.W.3d 676, 684 (Tex. App.—El Paso 2018, no pet.). Although the trial court 

pronounced no geographical restriction would be imposed, the final order reflects that the child’s 

primary residence is restricted to El Paso County, Texas. Father argues the language in the final 

order is a modification of the geographic restriction and therefore should have been left to the jury. 

Mother argues that the trial court acted properly because it did not contravene the role of the jury.
18

Although we must construe rules regarding an appellant’s briefing liberally, we are not 

required to perform research and develop arguments for an appellant who inadequately briefs its 

arguments. Tucker, 2020 WL 3969586, at *1. Pursuant to Section 105.002(c)(1)(E)-(F) of the 

Texas Family Code, it is within the province of the jury to decide whether a geographic restriction 

will be imposed and if so, what area the restriction would include. See TEX. FAM. CODE ANN. §

105.002(c)(1)(E)-(F). The prior order included a geographic restriction to El Paso County, Texas

and the current written order includes a geographic restriction to El Paso County, Texas. The only 

difference between the two orders is the inclusion of contingent language that applies only in the 

event that Father himself first moves out of El Paso County, which is not currently applicable. In 

the context of this case and under these facts, we find the trial court did not invade issues within 

the province of the jury. Because there was no modification as to whether a geographic restriction 

existed or what area the restriction would include, the trial court made no modification of the 

geographic restriction. TEX. FAM. CODE ANN. § 105.002(c)(1)(E)-(F). Without the benefit of any 

further authority favorable to Father, we cannot find the trial court abused its discretion.

Father’s second issue is overruled.

III. CONCLUSION

Having overruled all issues, we affirm.

GINA M. PALAFOX, Justice

May 19, 2021

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