                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-12-00108-CV

                    IN THE INTEREST OF M.G.N. and A.C.N., Minor Children

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2008-CI-17947
                            Honorable Antonia Arteaga, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: July 29, 2015

AFFIRMED

           This is a child custody modification suit. On remand from the Texas Supreme Court, we

must determine whether the trial court abused its discretion (1) when it found an impaneled juror

statutorily disqualified and substituted an alternate juror, and (2) when it found a juror

constitutionally disabled and proceeded with an eleven juror panel. We conclude the trial court

acted within its discretion.

           We also consider the other issues previously raised by Appellant but not addressed in our

prior opinion: (1) whether the judgment modifying the decree of divorce is supported by the

pleadings, (2) whether the trial court erred by excluding relevant evidence concerning the issue of

managing conservatorship, and (3) whether the trial court erred in its award of attorney’s fees

against George. Having found no reversible error, we affirm the trial court’s order.
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                                                  BACKGROUND

           The Texas Supreme Court’s opinion recounts many of the applicable facts. In the Interest

of M.G.N. & A.C.N., Minor Children, 441 S.W.3d 246 (Tex. 2014) (per curiam). Because our

analysis includes previously unaddressed issues, we include additional facts.

           George and Monica 1 entered into a Mediated Settlement Agreement on May 3, 2007. The

divorce, signed on June 25, 2007, appointed George and Monica joint managing conservators of

their two children.

           A.       The Pleadings

           In August of 2009, seeking sole managing conservatorship of the couple’s two sons,

George sued his ex-wife Monica to modify their final decree of divorce. George’s petition alleged

that Monica engaged in a pattern of bad acts and omissions contrary to the best interests and

physical well-being of the children and requested the trial court mandate Monica’s possession be

limited and supervised. George also pled for attorney’s fees and costs. Monica counterclaimed

seeking child support and her appointment as sole managing conservator. Monica also sought

attorney’s fees and costs.

           When Dr. Joann Murphey, the court-appointed expert, released her report recommending

the continuation of the party’s joint management relationship, Monica amended her pleadings to

adopt Dr. Murphey’s recommendation.                    Based on the joint managing conservatorship, Dr.

Murphey recommended the following:

           (1)      mental health monitoring of the boys by a qualified child mental health
                    professional;
           (2)      discretion be given to the qualified mental health professional to coordinate
                    parenting disputes relating to exchange of possession, extracurricular
                    activities, and other conditions without modifying the court-ordered
                    schedule of visitation and access;

1
    For purposes of this opinion, we refer to the parties as George and Monica without reference to their last names.

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       (3)      each parent seek professional help to improve their parenting styles;

       (4)      the present counseling relationship between the children and their counselor
                be maintained;
       (5)      the parties should identify one pediatrician to serve as the primary care
                provider for the boys;
       (6)      each parent should participate in individual psychotherapy;
       (7)      the current possession schedule should continue except for Wednesday
                overnight possession;
       (8)      “loving and caring” orders should be eliminated and only the court’s orders
                should be operative; and
       (9)      the children’s domicile should remain in Bexar County.

Monica’s amended counter-petition alternatively requested she be appointed sole managing

conservator in the event the parties were not retained as joint managing conservators.

B.     The Trial and Additional Hearings

       The case was called to trial on October 10, 2010. A jury of twelve individuals and an

alternate were seated. After three days of testimony, one of the jurors was disqualified and excused

based on concerns of impartiality and the alternate juror was seated. Two days later, one of the

twelve remaining jurors was declared disabled after calling the court and explaining that he was

ill and could not be in the courtroom. The trial proceeded with eleven jurors.

       After six days of testimony, the eleven-person jury returned a verdict on the sole question

of managing conservatorship. The jury declined to appoint George as sole managing conservator

of the children thereby concluding that George and Monica should remain joint managing

conservators.

       On March 1, 2011, the trial court issued a modification order by which, among other things:

(1) George retained the superior right to possession of the children at all times not specifically

designated and the right to designate their primary residence; (2) Monica retained the right to select

the children’s dentist; (3) the costs of dental and orthodontic care were divided, in unequal parts,

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between George (75%) and Monica (25%); and (4) George was to pay attorney’s fees for two of

Monica’s attorneys.

       George filed a motion for new trial complaining of the trial court’s assessment of attorney’s

fees. George’s motion for new trial raised, for the first time, a complaint about the failure to

segregate the attorney’s fees award.

       On November 22, 2011, the trial court set aside its March 1, 2011 order and issued a final

modification order. The final order (1) granted Monica the superior right to possession of the

children at all times not specifically designated and (2) increased the attorney’s fees assessed

against George to include fees charges by all three attorneys representing Monica.

C.     Rulings on Appeal

       In our April 24, 2013 opinion, this court concluded the trial court deprived George of a

full, twelve-member jury and denied him the right to jury trial guaranteed by the Texas

Constitution by dismissing Juror Turney when he was not “disabled from sitting.”

       On August 22, 2014, the Texas Supreme Court reversed this court’s judgment concluding

our opinion “failed to properly examine the two dismissals under their appropriate standards:

whether the substitution of an alternate was proper due to a statutory disqualification and whether

continuing with eleven jurors was proper due to a constitutional disability.” In re M.G.N., 441

S.W.3d at 246.

       We first address the supreme court’s directive to assess the statutory juror qualification and

the constitutional juror disability issues and then turn to the remaining complaints raised by George

on appeal.




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                                              JURORS

A.     Standard of Review

       A juror is statutorily disqualified if the juror admits bias or prejudice. See TEX. GOV’T

CODE ANN. § 62.105 (1), (4); Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743, 751 (Tex. 2006);

Shepherd v. Ledford, 962 S.W.2d 28, 34 (Tex. 1998); LaSalle Pipeline L.P. v. Donnell Lands, L.P.,

336 S.W.3d 306, 320 (Tex. App.—San Antonio 2010, pet. denied). “[W]hen the evidence does

not conclusively establish a [juror’s] disqualification, we consider the evidence in the light most

favorable to the trial court’s ruling.” Jordan v. Sava, 222 S.W.3d 840, 845 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (citing Buls v. Fuselier, 55 S.W.3d 204, 210 (Tex. App.—Texarkana

2001, no pet.)). We further afford great deference to the trial court’s evaluation of a juror because

“trial judges are present in the courtroom and are in the best position to evaluate the sincerity and

attitude” of the juror. Murff v. Pass, 249 S.W.3d 407, 411 (Tex. 2008) (citing Hyundai Motor Co.,

189 S.W.3d at 755). We will not disturb a trial court’s disqualification of a panel member absent

an abuse of discretion. Jordan, 222 S.W.3d at 845 (citing Buls, 55 S.W.3d at 210).

B.     Statutory Disqualification of Impaneled Member of the Jury (Juror Turney)

       1.       Arguments of the Parties

       George contends the trial court abused its discretion when it dismissed a juror because he

was not disqualified from serving on the jury. George argues the juror’s statements and actions

were insufficient to disqualify him as a matter of law and the juror was removed based only on his

view of evidence developed at trial.

       Monica, on the other hand, contends among other things that because the juror allowed

himself to be persuaded by his personal bias and prejudice, the juror was disqualified from jury

service duty.



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       2.      Texas Government Code Section 62.105(4): Juror with Bias or Prejudice
       Bias is “an inclination toward one side of an issue rather than to the other,” while prejudice

means “prejudgment, and consequently embraces bias; the converse is not true.” Compton v.

Henrie, 364 S.W.2d 179, 181–82 (Tex. 1963); Hyundai Motor Co., 189 S.W.3d at 751 (“Fair and

impartial jurors reach a verdict based on the evidence, and not on bias or prejudice.”). Bias or

prejudice is not presumed; to prevail on a bias challenge, the party must show a potential juror will

not act with impartiality. Buls, 55 S.W.3d at 210; see also Guerra v. Wal-Mart Stores, Inc., 943

S.W.2d 56, 59 (Tex. App.—San Antonio 1997, writ denied). A trial court makes a factual

determination, based on the entire record, whether a juror’s state of mind leads to the natural

inference of bias, which will affect the juror’s actions. Malone v. Foster, 977 S.W.2d 562, 564

(Tex. 1998); Swap Shop v. Fortune, 365 S.W.2d 151, 154 (Tex. 1963); Compton, 364 S.W.2d at

182.

       3.      Venireman Joel Turney and Trial Court Findings

       During voir dire, venireman Joel Turney was questioned by both parties. He explained he

was an electrical and lighting contractor, verified he did not know any of the parties, and opined

he could be fair and impartial. Venireman Turney was selected to serve on the jury.

        The first witness called to testify was George. During cross-examination, George was

questioned regarding a business associate, Tim Smoot. Monica’s attorney suggested George was

responsible for “running [Smoot’s] business into the ground” and “cheating [Smoot] in the

business.” After George’s testimony concluded, the jury was released for the day, and Juror

Turney advised the bailiff he had personal knowledge of Smoot’s business.

        Prior to testimony resuming, and outside the presence of the jury, the trial court questioned

Juror Turney. Explaining that he and Smoot were in similar businesses, Juror Turney relayed that

he knew “of George from Smoot Electric.” Juror Turney stated that Smoot was still in business

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and that Smoot’s business struggles were due to the economy and not anything George had or had

not done. Juror Turney further opined that he believed George and not Monica’s attorney.

        The trial court inquired whether Juror Turney felt that he could be a fair and impartial

juror. Juror Turney replied as follows:

   I don’t know what I’m allowed to say in deliberation with the other jurors, but I would
   like to explain to them my knowledge on what is in that case, but unless you tell me I
   can’t bring up things that were not brought up between the lawyers, but I would like to.
   Otherwise I can’t just keep it out of my conscience knowing what I know and —

        After Juror Turney left the courtroom, the parties discussed whether Juror Turney was

statutorily disqualified to serve on the jury. The trial court voiced concern over Juror Turney’s

response that he “would feel like he could not keep this information away from the other jurors.”

Over George’s objections, the trial court explained:

       . . . we have an extra juror. Maybe I’d be cautioned if we didn’t have an extra juror,
       but we have an extra juror. There’s no reason to take the risk here of impartiality
       or not or of extra information going into the jury room. There is just no—we have
       an extra juror. We’re going to go ahead and release Mr. Turney. We’re going to
       proceed with our [twelve] jurors.

Juror Turney was released and Alternate Juror Gerardo Miranda was seated as the twelfth juror.

       In its findings of fact, the trial court made the following findings regarding Juror Turney:

       (1)     he had “personal knowledge of Tim Smoot as they are both in the electrical
               business”;
       (2)     “he would not consider evidence contrary to [George] because of his
               opinion of why Tim Smoot’s business failed”; and
       (3)     He knew the real story about Tim Smoot’s business and that it affected his
               impartiality.”

       4.      Analysis

       Because the evidence does not conclusively establish Juror Turney’s statutory

disqualification, we view Juror Turney’s response to the trial court’s questions in the light most

favorable to the trial court’s ruling. See Jordan, 222 S.W.3d at 845. We must also defer to the

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trial court’s findings of fact. See Buls, 55 S.W.3d at 210. We, therefore, cannot say it was an

abuse of discretion for the trial court to find Juror Turney was statutorily disqualified given the

court’s findings that Juror Turney had personal knowledge of facts that affected his ability to

consider the evidence in an impartial manner. We, therefore, cannot say the trial court abused its

discretion in finding that Juror Turney was statutorily disqualified pursuant to section 62.105(4).

See TEX. GOV’T CODE ANN. § 62.105(4). Because we conclude the trial court did not abuse its

discretion in statutorily disqualifying Juror Turney based on bias or prejudice under section

62.105(4), we need not address whether Juror Turney was a witness, as alleged by Monica, under

section 62.105(1). See TEX. GOV’T CODE ANN. § 62.105(1), (4).

        Additionally, once the trial court dismissed Juror Turney based on statutory

disqualification, the trial court could properly seat an alternate juror as the twelfth juror as long as

the alternate was qualified to serve. TEX. GOV’T CODE ANN. § 62.020(c)-(d) (West 2013). Here,

there is no question Miranda was qualified. Juror Miranda represented that he could be fair and

impartial and the record does not show otherwise. Neither party objected at the time Venireman

Miranda was seated as an alternate. Accordingly, we cannot conclude the trial court abused its

discretion in determining Juror Miranda was qualified to sit as a juror in this matter or in seating

Juror Miranda as the twelfth juror.

        Having determined the trial court did not err in dismissing Juror Turney on statutory

disqualification grounds, or in seating Juror Miranda as the twelfth juror, we next consider whether

the trial court erred in concluding Juror George Park was constitutionally disabled, thereby

allowing the court to proceed with only eleven jurors.

D.      Constitutional Juror Disability

        On the last day of trial, Juror George Park left a phone message for the court’s clerk

indicating he had a stomach ailment and was unable to attend trial on that day. Outside the
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presence of the jury, the trial court and counsel for both parties contacted Juror Park. Based on

the information Juror Park provided, the trial court determined he was constitutionally disabled

and notified counsel the trial would proceed with eleven jurors.

          George objected to continuing the trial with eleven jurors. He requested a recess for the

day, and when it was denied, he moved for a mistrial. The trial court denied George’s motion,

found Juror Park constitutionally disabled to serve, and the trial proceeded with a panel of eleven

jurors.

          1.     Arguments of the Parties

          George argues there is no evidence that Juror Park’s disability was permanent. He contends

the trial court speculated that Juror Park might fall ill again and was more worried about losing

another juror because of conflicts involving pre-disclosed travel plans.

          Monica counters that Juror Park met the definition of constitutional disability because his

illness (1) prevented him from contacting the court initially, (2) compelled his decision to remain

home and not travel to the courthouse, and (3) precluded him from stating how long this disability

would continue.

          2.     Constitutional Disability

          Although the Texas Constitution requires district court juries to be composed of twelve

persons, it allows a jury of less than twelve persons to return a verdict if, during trial, no more than

three jurors die or become disabled from sitting. See TEX. CONST. art. V § 13. Similarly, the Texas

Rules of Civil Procedure provide that “a verdict may be rendered in any cause by the concurrence,

as to each and all answers made, of the same ten or more members of an original jury of twelve.”

TEX. R. CIV. P. 292; see In re M.G.N., 441 S.W.3d at 248; McDaniel v. Yarbrough, 898 S.W.2d

251, 252 (Tex. 1995). “Thus, if a trial court’s dismissal of a juror results in fewer than twelve



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jurors, the dismissal must either be based on the juror’s constitutional disability or the trial court

must declare a mistrial if there was no constitutional disability.” In re MGN, 441 S.W.3d at 248.

       The Texas Supreme Court has clearly established that a constitutional disability is not just

any inconvenience, but it must be in the nature of physical or mental incapacity. Compare Yanes

v. Sowards, 996 S.W.2d 849, 850 (Tex. 1999) (concluding juror was constitutionally disabled

because juror stated he was mentally and psychologically disabled from sitting because he would

be distracted and unable to pay attention due the sickness and impending death of his grandfather)

with McDaniel, 898 S.W.2d at 253 (determining juror not constitutionally disabled when juror is

temporarily prevented from traveling to the courthouse because of flooding), and Hous. & Tex.

Cent. Ry. Co. v. Waller, 56 Tex. 331, 337–38 (1882) (holding juror whose child was sick was not

disabled absent evidence that his distress prevented him from discharging his job as a juror). We

remain mindful that trial courts have broad discretion in determining whether a juror is “disabled

from sitting.” See McDaniel, 898 S.W.2d at 253.

       3.      Juror Park

       Here, Juror Park was sick. He relayed to the trial court that he had been unable to sleep

due to bouts of diarrhea the previous night. When he woke the day of trial, he vomited. Juror Park

explained that he felt better, but was sleep deprived. Although the juror asked the trial court to

delay the trial a few hours to see if he would feel better, he also advised the trial court and counsel

that he could not give them assurances he would be well by then.

       We conclude that Juror Park provided the trial court with sufficient evidence to determine

that he was physically incapable of attending trial. “Juror Park was not able to definitively state

when he thought he would convalesce sufficiently to return to service.” See In re M.G.N., 441

S.W.3d at 247. Accordingly, we cannot conclude the trial court abused its discretion, or acted

without reference to guiding rules or principles, in dismissing Juror Park on constitutional
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disability grounds and proceeding with eleven jurors. See TEX. R. CIV. P. 292; In re M.G.N., 441

S.W.3d at 248; McDaniel, 898 S.W.2d at 253.

       Having concluded the trial court did not abuse its discretion in statutorily disqualifying

Juror Turney and proceeding with eleven jurors based on Juror Park’s constitutional disability, we

address the remaining issues raised by George, but not part of our original opinion: (1) whether

the trial court erred by excluding relevant evidence concerning the issue of managing

conservatorship; (2) whether the judgment modifying the decree of divorce is supported by the

pleadings; and (3) whether the trial court erred in its award of attorney’s fees against George. Each

will be addressed separately.

                                HEARINGS BEFORE THE TRIAL COURT

       We first address the evidence excluded before, during, and after George presented his case

before the jury.

A.     Evidence Excluded during the Trial on the Modification

       1.      Standard of Review

       We review a trial court’s decision admitting or excluding evidence for an abuse of

discretion. In re E.A.G., 373 S.W.3d 129, 144 (Tex. App.—San Antonio 2012, pet. denied). The

trial court abuses its discretion if it acts “arbitrarily, unreasonably, and without reference to any

guiding rules and principles.” Id. We will not reverse the trial court’s decision on the admissibility

of evidence unless the appellant shows that the trial court erred and that such error “probably

caused the rendition of an improper judgment.” TEX. R. APP. P. 44.1; In re E.A.G., 373 S.W.3d at

144.




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        2.       Argument of the Parties

        George argues the trial court erred in excluding the following evidence: (1) pre-MSA

evidence; (2) Monica’s proposed modification order; (3) a May 2008 temporary protective order

obtained by George and Monica’s violations of that protective order; (4) Monica’s vindictive

behavior against Dr. Gayle Monnig when she filed an ethical complaint against her; and (5) Dr.

Mary Adam Perez’s pediatric records.

        Monica argues the trial court properly exercised its discretion in excluding the evidence.

        3.       Evidence before the Trial Court

        Before the jury trial began, the trial court granted Monica’s motion in limine on the

following issues:

             •   Monica’s acts (violent and threatening) prior to May 3, 2007 (the date of
                 the mediated settlement agreement);
             •   Any reference to incidents prior to May 3, 2007 contained in any social
                 study performed after that date;
             •   Any reference to controversies between Monica and Dr. Monnig 2 regardless
                 of when filed, including any complaints to the board of examiners of
                 psychologists and letters from George’s attorney to Dr. Monnig;
             •   Any reference to any controversy, including criminal, between George and
                 Monica’s counsel; and
             •   Monica’s violent and threatening acts, and controversies between Monica
                 and Dr. Monnig.

        After the trial began, the trial court heard evidence outside the presence of the jury

regarding George’s assertions that Monica violated the May 2008 protective order. George

testified that Monica walked up to him and his wife at a soccer game; Monica testified she was

saying good-bye to the children and did not see George or his wife. Holding the evidence was




2
 Dr. Gayle Monnig is a licensed psychologist who, before the parties divorced, made recommendations relating to
custody.

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prejudicial and that the protective order lacked foundation, the trial court refused to admit the

proffered evidence.

       Before he rested his case, George offered and obtained an adverse ruling on Monica’s post-

MSA proposed modification order and Monica’s post-MSA violation of the temporary protective

order. Neither the proposed modification order nor the temporary protective order were offered

before the jury or filed as part of the trial court record. The only time the matter was discussed

before the trial court was during Monica’s motion in limine.

       After resting his case, but before Monica rested, George’s counsel requested permission to

make an “offer of proof” regarding evidence that was excluded based on Monica’s motion in

limine. The trial court refused to make a ruling on the offer explaining,

       I just don’t know that I’m able to give you a ruling if it wasn’t offered before, so
       I’m respectfully going to decline to rule at this time since I don’t believe that I ruled
       before, but that’s my rationale . . . .

The trial court did, however, allow George to make an offer of proof, outside the presence of the

jury, on the following evidence in question: (1) Dr. Perez’s pediatric records; (2) a proposed

modification of the divorce decree sent by Monica’s attorney to George; (3) Monica’s alleged

violation of a temporary protective order; (4) an ethical complaint made by Monica or her counsel

against Dr. Monnig; (5) evidence of scratches to George’s face allegedly resulting from an attack

by Monica; (6) alleged death threats by Monica; (7) alleged road rage acts by Monica; and (8)

alleged violent acts by Monica against a dog.

       Before addressing whether the trial court’s exclusion of the evidence was an abuse of

discretion, we must first determine whether error was preserved for our review.

       4.      Preservation for Appeal

       “An appellate court does not reach the question of whether [the] evidence was erroneously

excluded unless the complaint has first been preserved for review.” In re Estate of Miller, 243
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S.W.3d 831, 837 (Tex. App.—Dallas 2008, no pet.) (citing McInnes v. Yamaha Motor Corp.,

U.S.A., 673 S.W.2d 185, 187 (Tex. 1984)). “To preserve error on appeal, a party must present to

the trial court a timely request, motion, or objection, state the specific grounds therefore, and obtain

a ruling that appears in the record.” Id. (citing TEX. R. APP. P. 33.1(a); Wal–Mart Stores, Inc. v.

McKenzie, 997 S.W.2d 278, 280 (Tex. 1999)); see also Fletcher v. Minn. Min. & Mfg. Co., 57

S.W.3d 602, 607 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). The party’s objection must

be timely and specific and made at the earliest possible opportunity. Oyster Creek Fin. Corp. v.

Richwood Invs. II, Inc., 176 S.W.3d 307, 316 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

        To challenge the trial court’s erroneous exclusion of evidence, the “complaining party must

present the excluded evidence to the trial court by offer of proof or bill of exception.” In re Estate

of Miller, 243 S.W.3d at 837; see also TEX. R. EVID. 103(a); Fletcher, 57 S.W.3d at 607; Akin v.

Santa Clara Land Co., Ltd., 34 S.W.3d 334, 339 (Tex. App.—San Antonio 2000, no pet.). “An

offer of proof consists of making the substance of the evidence known to the court and shall be

made as soon as practicable after the ruling excluding the evidence, but before the court’s charge

is read before the jury.” In re Estate of Miller, 243 S.W.3d at 837 (citing TEX. R. EVID. 103(a),

(b)). “[F]ailure to make an offer of proof containing a summary of the excluded witness[es’]

intended testimony waives any complaint . . . on appeal.” Akin, 34 S.W.3d at 339. Without an

offer of proof, an appellate court cannot make a determination whether the trial court committed

reversible error. TEX. R. EVID. 103(a); Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 411

(Tex. App.—Houston [14th Dist.] 2004, no pet).

                a.      Dr. Perez’s Medical Records

        During his case-in-chief, George offered Dr. Perez’s records. The trial court advised

George it would review the records and rule at a later time; however, George rested his case-in-



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chief without obtaining a ruling on the records. After George rested, and while making his offer

of proof, George’s attorney advised the trial court,

       Counsel:        I would like to introduce medical records that we offered of—I think
                       it’s [sic] Children’s Pediatric. It has to do with Mary Perez, that
                       [sic] concludes statements by Doctor Perez and statements by
                       [Monica] concerning her treatment of [A.C.N.].

The trial court again declined to rule despite George’s attorney’s request for a ruling.

       To preserve a complaint for appellate review, the record must show that if the trial court

refused to rule on a request, the complaining party objected to the refusal. TEX. R. APP. P.

33.1(a)(2)(B). If a party fails to object, error is not preserved and the complaint is waived.

Magnuson v. Mullen, 65 S.W.3d 815, 829 (Tex. App.—Fort Worth 2002, no writ) (citing Bushell

v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g)).

       In this case, George failed to object to the trial court’s refusal to rule on the admissibility

of Dr. Perez’s medical records.      Accordingly, George waived his complaint regarding the

exclusion of the records.

               b.      Monica’s Proposed Modification and George’s Temporary Protective Order

       During his case in chief, George offered Monica’s proposed modification order and his

temporary protective order. The trial court sustained Monica’s objections and the documents were

not admitted. After George rested his case-in-chief, he made the following offers of proof

regarding Monica’s proposed order and the protective order:

                                 Monica’s Proposed Modification

       Counsel:        Finally, and I think you may have already ruled on this, but as an
                       offer of proof I offered [sic] into evidence a proposed settlement
                       agreement by [Monica] to [George]. The court said it was a
                       settlement agreement, but it’s the letter that—or rather a court order
                       that her attorney sent to [George] early after the, um—after the
                       mediated settlement agreement was entered into by the court. I
                       don’t know if it’s marked as an exhibit. I think it is. I think you
                       turned me down on it, but I want to reurge that—reurge that on the
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                       basis that it shows that [Monica], like [George], was unhappy with
                       the situation early on after the decree was entered.

                          George’s Ex-Parte Temporary Protective Order

       Counsel:        I would further like to introduce evidence, and I think you’ve
                       already overruled me on this on the record, that there was, in fact, a
                       protective order in existence in this matter, and I would like the court
                       to rethink and allow me to introduce evidence of the protective
                       order, not just the facts themselves but the protective order itself.

       Although George’s attorney makes reference to the proposed modification order and the

temporary protective order, the actual documents were never tendered to the court reporter nor

made part of the offer of proof. Moreover, neither offer of proof describes with sufficient

specificity either the contents of the proposed modification or the temporary protective order.

Because we cannot determine the substance of these exhibits from the offer of proof, and George

did not include the exhibits in the trial court record as part of his offer of proof, George failed to

preserve error as to the trial court’s exclusion of these exhibits. See Carlile, 138 S.W.3d at 411.

               c.      Monica’s Ethics Complaint Against Dr. Monnig and Other Bad Acts

       After resting his case in chief, George also made an offer of proof regarding Monica’s

ethics complaint filed against Dr. Monnig and the following evidence: photographs of scratches

on George’s face allegedly caused by an attack by Monica, alleged death threats made by Monica,

alleged road rage incidents involving Monica, and an alleged attempted attack on a dog by Monica.

George’s offer of proof was as follows:

       Counsel:        The first item that we would like to offer as offer of proof for
                       purposes of a bill of exception, Your Honor, there was a post-May
                       3, 2007 event which occurred—um, I think in about March, 2010,
                       which there was a demand and false claim against a witness in this
                       matter, Doctor Gayle Monnig, to retaliate against her for
                       recommending petitioner as the primary parent and to gain
                       advantage in this proceeding.

                       We would like to show this has happened four years following the
                       report. I would like to incorporate in this bill – well, I would like to
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                                                                                       04-12-00108-CV


                       offer evidence that a complaint was filed by the – by [Monica] with
                       the Texas Psychological Association, whatever you call it, against
                       Doctor Monnig.

We note that although the trial court had previously granted Monica’s motion in limine on the

proposed evidence, no testimony or other documentation was offered during George’s case in

chief.

         “Orders granting or denying a motion in limine do not preserve error unless evidence is

offered during the trial.” A trial court’s ruling on a motion in limine is a preliminary ruling on

admissibility and does not preserve anything for appellate review. Hiroms v. Scheffey, 76 S.W.3d

486, 489 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (citing Owens-Corning Fiberglas

Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972 S.W.2d

35 (Tex. 1998)); see also Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335

(Tex. 1963). Further, when a party rests without presenting evidence, the party waives the

presentation of that evidence—even if an offer of proof is later made. Giles v. Cardenas, 697

S.W.2d 422, 424 (Tex. App.—San Antonio 1985, writ ref’d n.r.e.) (citing Parkview General

Hospital, Inc. v. Waco Constr., Inc., 531 S.W.2d 224 (Tex. Civ. App.—Corpus Christi 1975, no

writ)); see also Estate of Veale v. Teledyne Indus., 899 S.W.2d 239, 242 (Tex. App.—Houston

[14th Dist.] 1995, writ denied) (explaining that for an offer of proof to preserve error, the proponent

of the evidence must first offer the evidence during the evidentiary portion of trial).

         During his case in chief, George did not offer evidence or secure a ruling from the trial

court on the filing of the ethics complaint or any of the other alleged bad acts; he also never sought

to reopen his case to include additional evidence or the actual complaint against Dr. Monnig.

Contra Apresa v. Montfort Ins. Co., 932 S.W.2d 246, 249 (Tex. App.—El Paso 1996, no writ)

(holding exception applied when, after resting, a litigant motions to reopen his/her case to

introduce additional evidence).      We therefore conclude that George waived his complaint
                                                 - 17 -
                                                                                       04-12-00108-CV


regarding the trial court’s exclusion of evidence of the ethic’s complaint or Monica’s other alleged

bad acts on which the trial court ruled during the motion in limine.

        5.     Monica’s Restaurant Encounter with Dr. Monnig

        We now turn to the evidence of Monica’s restaurant exchange with Dr. Monnig. During

his case in chief, and outside the presence of the jury, George offered evidence and secured a ruling

from the trial court excluding the evidence. Before the charge was read to the jury, George made

an offer of proof of Dr. Monnig’s testimony regarding the exchange. George advised the trial

court that the purpose for that testimony was to show Monica’s “general assertive and aggressive

attitude.”

               a.      Evidence and Arguments Offered at Trial

        The excluded testimony from Dr. Monnig consisted of the following:

        George’s Counsel:      All righty. Could you just describe what happened as
                               concerns [Monica] on that occasion?

        Dr. Monnig:            Well, basically what happened was that we were finishing
                               up – we had taken my mother to church, and it was a
                               Saturday night. We went to eat dinner, and we were sitting
                               there kind of like in a semicircle, and it was my mother, my
                               husband, myself, and we were just finishing the meal.

                               And this woman walked up to me, and she had her tray kind
                               of like on her hip like a waitress, and she said, Oh, hi, Doctor
                               Monnig. And for a minute I didn’t know who it was, ‘cause
                               I had taught at SAC for 34 years, and I see all these people.
                               I’m like, who is this?

                               And she said, don’t you remember me?

                               And I said, who are you?

                               And she said, well, I’m [Monica].

                               ....

                               So anyway, she said, well, I hope – I hope you’re happy.


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                                                                                    04-12-00108-CV


                              And I said, about what?

                              And she said, well, everything has happened just exactly the
                              way I told you it was going to happen.

                              I said, um, what?

                              And she said, George moved from Atkins, pulled the boys
                              up from their school, moved to San Antonio, uprooted ‘em
                              from everything, and now I’ve had to move to San Antonio
                              myself and do this job [waitress] so I can be near my boys.

       After the exchange with Monica, Dr. Monnig’s husband reported the incident to the

restaurant manager and proceeded to exit the restaurant with his wife. As they left the restaurant,

Monica did not pursue Dr. Monnig. Dr. Monnig did not file any charges against Monica for this

incident.

       Monica objected to Dr. Monnig’s proffered testimony on Rule 403 grounds. TEX. R. EVID.

403. She argued that because the relationship with Dr. Monnig began before the MSA and the

final divorce, an explanation on the nature of their relationship would be necessary to explain why

Monica approached Dr. Monnig. Such explanation, argued Monica, would open the door to pre-

MSA matters when the incident had nothing to do with Monica’s parenting.

       George responded to Monica’s objections by stating that the restaurant incident

corroborated allegations of Monica’s confrontational and mean behavior toward George and other

witnesses, her “in-your-face” attitude, and her road rage incidents. The trial court agreed that

being confrontational gives children a bad example, but stated that the restaurant incident was a

minor part of the case. The trial court then acknowledged that by allowing testimony regarding

the restaurant incident, the door would be opened to pre-MSA evidence, which the trial court was

excluding.




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                                                                                      04-12-00108-CV


       After a lengthy discussion on the pros and cons of admitting the evidence, the trial court

concluded “I just don’t see how [the restaurant incident] is significant enough to this trial versus

having to relitigate [sic] all those things that happened pre divorce.”

               b.      Arguments of the Parties on Appeal

       Both parties agree that the restaurant incident was relevant evidence. They disagree,

however, on the degree of relevance and on the application of Rule 403. Id.

       As stated above, George argues the restaurant incident corroborates Monica’s propensities

of lack of self-control and aggression since the divorce. George contends the trial court erred by

excluding the restaurant incident on “unfair prejudice” grounds. See id. He contends Rule 403

should only be used sparingly when dealing with the best interests of the child. George concludes

that the exclusion of the evidence harmed George in presenting his case and resulted in the

rendition of improper judgment.

       Monica contends the probative value of the evidence is outweighed by the prejudicial effect

of opening the door to pre-MSA evidence. Specifically, Monica argues the restaurant incident not

only fails to rise to an instance of verifiable or credible aggression, but also opens the door to an

explanation of Dr. Monnig’s pre-MSA role in the divorce. Therefore, Monica concludes, evidence

of a minor incident is outweighed by the danger of admitting pre-MSA evidence.

               c.      Relevant Evidence

       Texas Rule of Evidence 403 provides:

       The court may exclude relevant evidence if its probative value is substantially
       outweighed by a danger of one or more of the following: unfair prejudice, confusing
       the issues, misleading the jury, undue delay, or needlessly presenting cumulative
       evidence.

TEX. R. EVID. 403. “Rule 403 favors the admission of relevant evidence and carries a presumption

that relevant evidence will be more probative than prejudicial.” Murray v. Tex. Dept. of Family &


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                                                                                      04-12-00108-CV


Protective Servs., 294 S.W.3d 360, 368 (Tex. App.—Austin 2009, no pet.) (citing In re K.Y., 273

S.W.3d 703, 710 (Tex. App.—Houston [14th Dist.] 2008, no pet.). “To exclude evidence under

Rule 403 ‘is an extraordinary remedy that must be used sparingly.’” Id. (quoting Trevino v. Texas

Dep’t of Protective & Regulatory Servs., 893 S.W.2d 243, 248–49 (Tex. App.—Austin 1995, no

writ)). The opponent of the proffered evidence has the burden to show why the evidence is

prejudicial and how the prejudicial attributes “substantially outweigh the probative value of the

evidence.” Id. (quoting Goldbert v. State, 95 S.W.3d 345, 367 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d)).

        In a modification of custody case, the focus is on the best interest of the child and on

material or substantial changes to the circumstances of the child, a conservator, or other party

affected by the order. See TEX. FAM. CODE ANN. § 156.101(a). We review such decisions for an

abuse of discretion. See In re M.M.S., 256 S.W.3d 470, 476 (Tex. App.—Dallas 2008, no pet.).

                d.     Analysis

        Based on the evidence presented, the trial court could have found that Monica’s behavior

at the restaurant did not exhibit a want of self-control or propensity for aggression. The trial court

could also have found that Monica’s behavior at the restaurant was not highly probative of

Monica’s parenting abilities or her relationship with her children. Accordingly, the trial court

could have reasonably concluded the relevancy of the restaurant incident was outweighed by the

danger of opening the door to pre-MSA evidence. As a result, we cannot conclude the trial court

abused its discretion in excluding the same under Rule 403.

        We turn next to the post-trial hearings and George’s objections to the trial court’s

modification orders.




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                                                                                       04-12-00108-CV


B.     Post-Trial Hearings

       1.      November 12, 2010 Hearing

       After the jury returned its verdict, an evidentiary hearing was scheduled for November 12,

2010, to address attorney’s fees. Before that hearing, however, Monica’s attorney filed a letter

with the trial court, dated November 8, 2010, which requested the trial court to consider: (1) Dr.

Murphey’s recommendations, (2) Monica’s request for child support, (3) both parties’ requests for

attorney’s fees and costs, and (4) fourteen items that would modify other terms and conditions in

the divorce decree. The fourteen items Monica requested to be modified were:

       (a)     Mother’s Day and Father’s Day to be observed beginning on the actual
               Sunday holiday rather than beginning the prior Friday;
       (b)     The addition of Easter and Halloween as holidays to be observed and
               alternated annually between Mom and Dad;
       (c)     Clarification regarding which party is entitled to possession of the children
               during the school day. The purpose of such a provision would be to alleviate
               any confusion or dispute as to who should attend to a sick child after a parent
               drops off, but before the other parent picks up from school;
       (d)     Specification with regard to the impact of holidays in connection with a
               week on/week off possession schedule. The purpose of such a provision
               would be to ensure that the observance of a holiday possession period does
               not result in an excessive extension of either parent’s possession period due
               to such holiday observance;
       (e)     On each child’s birthday, the addition of language to provide that the non-
               custodial parent be responsible for the children’s dinner during that parent’s
               possession period (6pm–8pm) and instruction that the custodial parent
               refrain from doing so;
       (f)     Mom and Dad should each have the independent right to provide therapy
               for the children;
       (g)     A requirement that in connection with prescription medications for the
               children, the parent who initially obtains the prescription medication shall
               share same with the other parent;
       (h)     The appointment of a local dentist and orthodontist for the children;
       (i)     A requirement that Mom, Dad, Step-mother, and children meet with a
               family therapist. The number of sessions to be determined by such
               therapist;


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                                                                                       04-12-00108-CV


       (j)     The appointment of a monitor whose fees should be paid by Dad;
       (k)     With regard to extracurricular activities for the children, a requirement that
               each parent shall participate with the child regardless of which parent has
               enrolled the child in said activity. Mom shall select fall activities. Dad shall
               select spring activities. Summers shall be free of structured activities to
               allow each parent to vacation with the children;
       (l)     Dad to obtain and maintain dental insurance, to include coverage for
               necessary orthodontics for A.C.N.;
       (m)     Correct a typographical error in the existing decree . . . Should read Dad to
               have Thanksgiving in Odd Numbered Years;
       (n)     Delete language . . . of the existing decree designating that [George] has
               superior right to children at all times not otherwise designated.

       At the November 12, 2010 hearing, the trial court heard evidence on both parties’ requests

for attorney’s fees, including Monica’s fees associated with ongoing proceedings in the same cause

of action. George did not lodge a segregation of attorney’s fees’ objection. The trial court also

heard the issues raised in the November 8, 2010 letter. George’s counsel objected to the lack of

notice and argued that requests “a” through “n” were not supported by the pleadings. The trial

court granted George’s request for a running objection based on “no-pleadings.” Then, with the

exception of item “h,” dealing with the issue of dentist appointments, George proceeded to

specifically object to each item on evidentiary grounds. The trial court overruled George’s

objections on insufficient pleadings, but did not rule on the specific evidentiary objections. No

final orders were entered by the trial court.

       2.      March 1, 2011: Trial Court’s Modification Order

       A second hearing was held on February 28 and March 1, 2011 to review the trial court’s

initial proposed modification order. Despite his earlier objections, George agreed to several items

in the November 8, 2010 list. These items included holiday and birthday possessions, designation

of a therapist and monitor, and the correction of a typographical error in the decree regarding

George’s possession on Thanksgiving in odd years.


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                                                                                           04-12-00108-CV


        The trial court entered a modification order providing as follows: (1) George retained the

superior right to possession of the children at all times not specifically designated and the right to

designate their primary residence; (2) Monica retained the right to choose the children’s dentist;

(3) the costs of dental and orthodontic care were divided unequally between George (75%) and

Monica (25%); and (4) George was required to pay attorney’s fees for two of Monica’s attorneys. 3

        3.       George’s Motion for New Trial

        On May 10, 2011, George filed a motion for new trial on several issues; and, for the first

time, objected to Monica’s failure to segregate “the amount of attorney’s fees or costs she incurred

or expended in connection with her unsuccessful effort to modify child support from those fees or

costs incurred or expended to prosecute or defend against the modification of the joint managing

relationship.”

        On June 10, 2011, the trial court granted George’s request for a new trial on the issue of

attorney’s fees only and denied the remaining issues raised by George’s motion for new trial.

        4.       November 22, 2011: Final Modification Order

        On November 22, 2011, the trial court set aside its March 1, 2011 order and issued a final

modification order. In its final order, the trial court made two changes from its initial order (1)

Monica was awarded the superior right to possession of the children at all times not specifically

designated and (2) the attorney’s fees assessed against George were increased to include fees

charged by all three attorneys representing Monica.

        We first address George’s contention that the trial court’s modification order was not

supported by the pleadings.




3
  The trial court ordered George to pay $48,860.00 to H.E. Mendez and $36,404.23 to Jane Freeman Deyeso for
attorney’s fees incurred by Monica.

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                                                                                       04-12-00108-CV


       5.      Was the Judgment Modifying Decree of Divorce Supported by the Pleadings?

               a.      Standard of Review

       Section 156.101 of the Texas Family Code sets forth the grounds upon which a trial court

may modify an order “that provides the terms and conditions of conservatorship, or that provides

for the possession of or access to a child.” TEX. FAM. CODE ANN. § 156.101 (West 2014); see In

re Guardianship of C.E.M.-K, 341 S.W.3d 68, 80 (Tex. App.—San Antonio 2011, pet. denied).

Such an order may be modified if it is “in the best interest of the child” and upon a showing of a

material and substantial change in circumstances. TEX. FAM. CODE ANN. § 156.101.

       In matters concerning custody, control, possession, and visitation, the trial court’s
       foremost consideration is the best interest of the child, and the court has discretion
       to fashion orders including injunctive relief that are in the best interest of the child
       and consistent with the allegations, general prayers for relief, and evidence, without
       the need for strict proof of the existence of a wrongful act, imminent harm,
       irreparable injury, and the absence of an adequate remedy at law.

King v. Lyons, 457 S.W.3d 122, 131 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing

Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (“[A] suit properly invoking the jurisdiction

of a court with respect to custody and control of a minor child vests that court with decretal powers

in all relevant custody, control, possession and visitation matters involving the child.”)); see also

In re PMG, 405 S.W.3d 406, 417–18 (Tex. App.—Texarkana 2013, no pet.) (in modification of

conservatorship, party sought to be appointed as the person who has the right to designate the

primary residence of the child thereby “necessarily invok[ing] the jurisdiction of the trial court

over the matters of custody and control, imbuing the trial court with ‘decretal powers’”).

       We review a trial court’s decision to modify an order regarding conservatorship or the

terms of possession of and access to a child under an abuse of discretion standard. See In re

Scheller, 325 S.W.3d 640, 645 (Tex. 2010); accord In re Chambless, 257 S.W.3d 698, 699 (Tex.

2008) (orig. proceeding) (per curiam); Baltzer v. Medina, 240 S.W.3d 469, 474–75 (Tex. App.—


                                                - 25 -
                                                                                      04-12-00108-CV


Houston [14th Dist.] 2007, no pet.). A trial court abuses its discretion if it acts arbitrarily,

unreasonably, or without reference to any guiding rules or principles. See Flowers v. Flowers, 407

S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

               b.      Argument of the Parties

       George contends the November 8, 2010 letter from Monica’s counsel raised new matters

not included in Monica’s pleadings. George specifically complains that items “a” through “n” are

not supported by the pleadings. He argues the trial court erred by sua sponte modifying the

conservatorship when the court (1) removed George’s right to choose the dentist for his children,

despite taxing George with a disproportionate share of dental costs, (2) compelled both parties to

participate in the extra-curricular activity chosen by the other parent, and (3) modified George’s

superior right to possession of the children at all times not otherwise designated in the decree.

       Monica argues the pleadings of both parties ask for changes involving duties regarding

custody and possession. Monica asserts that because dental decisions fall within these duties,

George should not be surprised when the trial court grants the relief requested in the judgment.

               c.      Fair Notice Pleadings

       “Texas is a ‘fair notice’ state, which means that all parties are entitled to fair notice of a

claim.” In re Russell, 321 S.W.3d 846, 855 (Tex. App.—Fort Worth 2010, orig. proceeding [mand.

denied]); see also TEX. R. CIV. P. 45, 47, 48, 50; Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 896–97 (Tex. 2000). The Texas Family Code specifically requires parties to include

in their pleadings a “statement describing what action the court is requested to take concerning the

child and the statutory grounds on which the request is made.”             TEX. FAM. CODE ANN.

§ 102.008(b)(10) (West 2014). “Without proper pleadings and evidence, a trial court exceeds its

authority if it modifies or reforms previous orders affecting the custody of a child.” In re M.B.B-

Y., No. 04-10-00541-CV, 2011 WL 1303437, at *2 (Tex. App.—San Antonio Apr. 6, 2011, no
                                                 - 26 -
                                                                                       04-12-00108-CV


pet.); In re Russell, 321 S.W.3d at 855; see also In re T.R.B., 350 S.W.3d 227, 233 (Tex. App.—

San Antonio 2011, no pet.); see also In re Parks, 264 S.W.3d 59, 62 (Tex. App.—Houston [1st

Dist.] 2007, orig. proceeding); In re A.M., 974 S.W.2d 857, 861–62 (Tex. App.—San Antonio

1998, no pet.).

                  d.   Analysis

       Because George orally agreed to many of the items during the March 1, 2011 hearing, we

limit our discussion to (1) dental care decisions and costs and (2) awarding Monica the superior

right to possession of the children at all times not specifically designated.

                       (1)     Dental care decisions and costs

       The parties’ pleadings did not include a request to modify which parent makes dental care

decisions and pays costs; however, the doctrine of trial by consent is an exception to the pleading

rule. Under the trial by consent doctrine, issues not pled but tried by express or implied consent

of the parties “shall be treated in all respects as if they had been raised in the pleadings.” TEX. R.

CIV. P. 67; see also Ingram v. Deere, 288 S.W.3d 886, 893 (Tex. 2009); Holden v. Holden, 456

S.W.3d 642, 651 (Tex. App.—Tyler 2015, no pet.). The doctrine of trial by consent, however,

only applies when the record as a whole shows the unpled issue was tried. Guillory v. Boykins,

442 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Holden, 456 S.W.3d at 651;

In re W.H.M., No. 02-14-00003-CV, 2014 WL 5791561, at *4–5 (Tex. App.—Fort Worth Dec.

11, 2014, no pet.); but see In re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no

pet.). “A party’s unpleaded issue may be deemed tried by consent when evidence on the issue is

developed under circumstances indicating both parties understood the issue was in the case, and

the other party failed to make an appropriate complaint.” Case Corp. v. Hi-Class Bus. Sys. of Am.,

Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005, pet. denied). The doctrine of trial by consent



                                                - 27 -
                                                                                       04-12-00108-CV


“is not intended to establish a general rule of practice and should be applied with care, and in no

event in a doubtful situation.” In re A.B.H., 266 S.W.3d at 600.

       During the jury trial, both parents testified at great length regarding their inability to agree

on a dentist, proper treatment, and who should bear the costs. During the post-jury trial hearing,

George raised, for the first time, the no-pleadings objection. Based on the record as a whole, we

conclude the issues of dental decisions for the children and dental costs were tried by consent. See

TEX. R. CIV. P. 67; Holden, 456 S.W.3d at 653; In re W.M.H., 2014 WL 5791561, at *4–5.

Accordingly, the trial court did not abuse its discretion in modifying the original divorce decree

allowing Monica to select the children’s dentist and to require George to pay 75% of the costs.

                       (2)     Superior right to possession of the children at all times not
                               specifically designated

       The original decree of divorce awarded George the superior right of possession of the

children at all times not specifically designated therein.       The trial court’s March 1, 2011

modification order provided Monica the superior right of possession at all times not specifically

designated in the order. George’s objects to the modification of this right arguing there were no

pleadings to support it. We disagree.

       From the very start, George’s pleading asks for modifications of the original possessory

orders. Specifically, his pleadings sought:

       Modification of the prior order providing for the terms and conditions of
       conservatorship and the possession of or access to the children would be in the
       children’s best interest as the circumstances of the children or a conservator have
       materially and substantially changed since the date of the mediated settlement
       agreement . . .

       In the alternative, Petitioner requests that the rights and duties of the respective
       conservators of the children be modified to provide that Petitioner have all the
       exclusive rights and duties of a sole managing conservator.

       Petitioner prays that the Court make appropriate orders for the parties’ period of
       possession with the children.
                                                - 28 -
                                                                                      04-12-00108-CV


Section 102.008(b)(10) requires the parties provide “a statement describing what action the court

is requested to take concerning the child and the statutory grounds on which the request is made.”

TEX. FAM. CODE ANN. § 102.008(a)(10) (West 2014). The suit was originally brought to determine

whether George should be named sole managing conservator of the children. See King, 457

S.W.3d at 131; In re M.B.B.-Y, 2011 WL 1303437, at *2. More importantly, the possession of the

children was the primary subject about which both George and Monica testified during most of

the trial. The conflicts ranged from scheduling doctor’s appointments to preventing the children

from seeing the other parent during extra-curricular activities.

       Texas courts have long held that trial courts possess “wide discretion” when conducting

proceedings in “a suit properly invoking the jurisdiction of a court with respect to custody and

control of a minor child.” Leithold, 413 S.W.2d at 701; accord King, 457 S.W.3d at 131; In re

P.M.G., 405 S.W.3d 406, 417 (Tex. App.—Texarkana 2013, no pet.). Because the issue of

possession was properly pled, and the majority of the testimony regarded the same, we cannot say

the trial court abused its discretion in awarding Monica the superior right of possession at all times

not specifically designated in the order. See King, 457 S.W.3d at 131; In re PMG, 405 S.W.3d at

417–18.

       Finally, we turn to George’s contention that the trial court erred in assessing attorney’s fees

absent Monica’s segregation of such fees.

       6.      Attorney’s Fees

       George argues the trial court erroneously awarded Monica attorney’s fees that were

previously denied by the trial court. He asserts that Monica failed to adequately segregate: (1) the

attorney’s fees she incurred as a result of her unsuccessful effort to modify child support; and (2)

the attorney’s fees she incurred to prosecute the modification of the joint managing

conservatorship.
                                                - 29 -
                                                                                       04-12-00108-CV


       Monica contends that George failed to object to the absence of segregation and therefore

waived this issue on appeal.

       A failure to segregate attorney’s fees in a case containing multiple causes of action,
       only some of which entitle the recovery of attorney’s fees, can result in the recovery
       of zero attorney’s fees. However, if no one objects to the fact that the attorney’s
       fees are not segregated as to specific claims, then the objection is waived.

Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997). In a bench trial, segregation of

attorney’s fees must be raised during the trial; raising the objection in a motion for new trial is not

sufficient to preserve error. See id.; Harvath v. Hagey, No. 03-09-00056-CV, 2011 WL 1744969,

at *6 (Tex. App.—Austin May 6, 2011, no pet.) (mem. op.) (“In a bench trial, such as was held

here, the segregation issue must be raised at trial.”); see also Editorial Caballero, S.A. de C.V. v.

Playboy Enterprises, Inc., 359 S.W.3d 318, 341 (Tex. App.—Corpus Christi 2012, pet. denied);

Wagner v. Edlund, 229 S.W.3d 870, 875 (Tex. App.—Dallas 2007, pet. denied); Cullins v. Foster,

171 S.W.3d 521, 535–36 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

       George raised the issue of segregation of attorney’s fees for the first time in his motion for

new trial. Because the issue of attorney’s fees was tried to the trial court and not to the jury,

George’s objection raised during his motion for new trial was untimely, and he waived this

complaint for purposes of appeal.

                                            CONCLUSION

       Having overruled each of George’s issues on appeal, we affirm the trial court’s judgment.


                                                    Patricia O. Alvarez, Justice




                                                 - 30 -
