                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-09-00255-CV

ADRIANNA RUIZ TAYLOR                                                  APPELLANT

                                         V.

ERIC DA=VELL TAYLOR                                                     APPELLEE

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          FROM THE 30TH DISTRICT COURT OF WICHITA COUNTY

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                         OPINION ON REHEARING
                                     ------------

      We have considered Appellee=s motion for reconsideration en banc of our

opinion issued September 16, 2010. We deny the motion, but we withdraw our

September 16, 2010 opinion and judgment and substitute the following.

                                 I. Introduction

      Appellant Adrianna Ruiz Taylor appeals from a July 1, 2009 final decree of

divorce. Adrianna contends in two issues that the trial court erred by refusing to

hear evidence concerning retroactive child support because Appellee Eric Da=Vell

Taylor had fair notice of her request for retroactive child support and because Eric
did not specially except to her failure to specifically plead for retroactive child

support. We reverse and remand.

                    II. Factual and Procedural Background

      Adrianna and Eric were married on August 31, 1997, and had one child.

Eric filed a petition for divorce on April 10, 2008, and sought Aorders for

conservatorship and support of the child@ in the event that he and Adrianna could

not reach an agreement on those matters. Adrianna filed a petition for divorce

on April 24, 2008.    In her original petition, Adrianna requested that Eric Abe

ordered to make payments for the support of the child@ and that the trial court

enter a temporary order requiring Eric to pay Achild support . . . while this case is

pending.@ The trial court consolidated the two cases on May 13, 2008.

      On May 7, 2009, Eric=s counsel announced to the trial court that the parties

had Areached an agreement on all issues pertaining to the division of property,

assignment of liabilities, current child support, health insurance, conservatorship,

rights, duties, and responsibilities.@ Eric=s counsel also stated, AThere=s an issue

that [Adrianna=s counsel] reserves to litigate later after we do the prove up.@ Eric

and Adrianna each then testified to their agreement, and Adrianna testified that

she was reserving the issue of retroactive child support.

      Following the parties= prove-up of their agreement, the trial court stated to

Adrianna=s counsel, AAnd you indicated, Ms. Lucking, the remaining issue is


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retroactive support.@ Eric=s counsel then objected to any evidence concerning

retroactive child support because Adrianna did not specifically plead for

retroactive child support. After hearing argument, the trial court sustained the

objection and stated, AI=m going to overrule the request for retroactive child

support. I find that it has to be pled in the face of an objection and it has not

been pled.@

      On May 26, 2009, Adrianna filed a motion to reconsider the trial court=s

ruling concerning retroactive child support, and the trial court conducted a hearing

on July 1, 2009. At the conclusion of the hearing, the trial court stated, AThe

court finds that the request for retroactive support must be specifically pleaded,

and that special exception was not required.@ The trial court then denied the

motion to reconsider and signed the final decree of divorce. Adrianna timely filed

her notice of this appeal.

                             III. Standard of Review

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or principles;

in other words, we must decide whether the act was arbitrary or unreasonable.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d

835, 838B39 (Tex. 2004). An appellate court cannot conclude that a trial court

abused its discretion merely because the appellate court would have ruled



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differently in the same circumstances.         E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Low, 221 S.W.3d at 620.

However, a trial court=s erroneous legal conclusion, even in an unsettled area of

law, is an abuse of discretion. Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001)

(orig. proceeding); Huie v. DeShazo, 922 S.W.2d 920, 927B28 (Tex. 1996) (orig.

proceeding).

                                    IV. Analysis

      Adrianna contends in her first issue that the trial court erred by refusing to

hear evidence concerning retroactive child support because her pleadings gave

Eric fair notice that she sought retroactive child support from the date of

separation through the date of judgment or, alternatively, from the date of her

original petition through the date of judgment. In her second issue, Adrianna

argues that Eric waived any complaint concerning the sufficiency of her pleading

for retroactive child support by failing to specially except.

      Texas follows a Afair notice@ standard for pleading.            Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see Tex. R. Civ. P.

45.   Generally, a pleading provides fair notice of a claim when an opposing

attorney of reasonable competence can examine the pleadings and ascertain the

nature and basic issues of the controversy and the relevant testimony. Auld, 34

S.W.3d at 896. In the absence of special exceptions, the petition should be



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construed liberally in favor of the pleader. Id. at 897; Boyles v. Kerr, 855 S.W.2d

593, 601 (Tex. 1993) (op. on reh=g); see also London v. London, 192 S.W.3d 6,

13 (Tex. App.CHouston [14th Dist.] 2005, pet. denied) (reviewing husband=s

pleadings liberally in his favor in determining sufficiency of pleading relating to

modification and offset to child support payments, including retroactive child

support payments, in the absence of sustained special exceptions to husband=s

pleadings); Van Buren v. McMillen, No. 14-03-00928-CV, 2004 WL 1898799, at

*2 (Tex. App.CHouston [14th Dist.] Aug. 26, 2004, no pet.) (mem. op.) (rejecting

contention that retroactive child support award was not supported by pleadings

and construing pleadings liberally in pleader=s favor in absence of special

exceptions); In re S.L.M., 97 S.W.3d 224, 232B33 (Tex. App.CAmarillo 2002, no

pet.) (holding that pleadings, in absence of special exceptions, sufficiently raised

retroactive child support but reversing in part because trial court=s order awarded

retroactive child support for improper dates).

      Here, Adrianna=s original petition requested that Eric Abe ordered to make

payments for the support of the child@ and further sought a temporary order for

Achild support . . . while this case is pending.@ This pleading provided Eric with

fair notice of Adrianna=s request for child support during the pendency of the

case. See Auld, 34 S.W.3d at 896. And there can be no dispute that Eric had

specific notice that Adrianna sought retroactive child support. See Martinez v.



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Martinez, 61 S.W.3d 589, 590B91 (Tex. App.CSan Antonio 2001, no pet.)

(ASpecific notice is required when retroactive child support is being sought.@

(quoting In re J.G.Z., 963 S.W.2d 144, 148 (Tex. App.CTexarkana 1998, no

pet.))).   The parties announced to the trial court that they had agreed to all

issues concerning Adivision of property, assignment of liabilities, current child

support, health insurance, conservatorship, rights, duties, and responsibilities@

and that Adrianna had reserved the issue of retroactive child support to be

litigated after the parties testified about the matters to which they agreed.

Although Aone who is sued on specific theories of recovery is not required to

except to the petition and ask whether there are other theories that the pleader

wants to allege,@ Haynes v. City of Beaumont, 35 S.W.3d 166, 180 (Tex.

App.CTexarkana 2000, no pet.), Adrianna=s petition sought an order for child

support and requested a temporary order for child support during the pendency of

the case, and Eric had specific notice that Adrianna was reserving the issue of

retroactive child support for trial.1 Thus, the trial court abused its discretion by

refusing to hear evidence concerning child support from the date of Adrianna=s

original petition through the date of judgment. Therefore, we sustain the part of




       1
       Moreover, we note that Eric does not dispute that he is the child=s father,
that he did not have custody of the child after he and Adrianna separated, or that
he did not pay child support pending the outcome of the divorce proceeding.

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Adrianna=s first issue concerning retroactive child support from the date of her

original petition through judgment.

      In the remainder of her first issue, Adrianna contends that the trial court

abused its discretion by refusing to hear evidence concerning child support from

the date of separation through the date of her original petition, but Adrianna=s

petition does not mention or even refer to a request for child support for that

period of time.    In her second issue, and relying on Van Buren, 2004 WL

1898799, at *2, Adrianna argues that Eric waived any complaint concerning the

sufficiency of her pleading by failing to specially except. In Van Buren, however,

the pleading at issue requested Athat any increase in [child support] be made

retroactive to the earlier of the time of service [of] citation on [Van Buren] on the

original motion or the appearance of [Van Buren] in this modification action.@ Id.

The court stated in dicta2 that this pleading was sufficient to constitute a request

for retroactive child support. Id. But Adrianna=s only relevant requests for child

support are that Eric Abe ordered to make payments for the support of the child@

and that the trial court should make a temporary order requiring Eric to pay Achild

support, health insurance premiums for coverage on the child, and 50 percent of

the child=s uninsured medical expenses while this case is pending.@ Nothing in


      2
       The Van Buren court=s statements concerning the sufficiency of the
pleading are dicta because the court had previously held that Van Buren had
waived any complaint concerning the sufficiency of the petition by failing to file

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her pleading even hints that she sought child support for dates prior to the date of

her original petition.

       Eric was Anot required to except to the petition and ask whether there are

other theories that [Adrianna] want[ed] to allege.@ Haynes, 35 S.W.3d at 180.

Thus, while Adrianna=s petition provided Eric with fair notice of her request for

child support during the pendency of the case, nothing in Adrianna=s petition

suggests that she sought child support from the date of separation through the

date she filed her original petition.      Requiring Eric to specially except to

Adrianna=s petition to determine whether Adrianna sought child support prior to

the date of her original petition would be akin to requiring a defendant to specially

except to a plaintiff=s pleading because other theories or causes of action are

available but not included in the plaintiff=s pleading. We hold that Adrianna=s

original petition did not provide Eric with fair notice of her request for retroactive

child support from the date of separation through the date of Adrianna=s original

petition and that Eric did not waive his complaint concerning the sufficiency of

Adrianna=s pleading for retroactive child support from the date of separation

through the date of her original petition by failing to specially except. Therefore,

we overrule the remainder of Adrianna=s first issue and all of her second issue.




special exceptions. Id.

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                                V. Conclusion

      Having sustained Adrianna=s first issue in part, having overruled the

remainder of her first issue, and having overruled her second issue, we reverse

the trial court=s judgment and remand this case to the trial court for further

proceedings consistent with this opinion.



                                            ANNE GARDNER
                                            JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.

DELIVERED: February 24, 2011




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