









02-09-197-CV













 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-09-00197-CV
 
 



In the Interest of D.B., 
a Child


 


 



 
 
------------
FROM THE
325th District Court OF Tarrant
COUNTY
------------
OPINION
----------
          In a bench trial, both
The Office of the Attorney General of Texas (the OAG),
Appellant, and Tony B. (Father), Appellee, sought confirmation of the child
support arrearage owed by Father.  The
trial court, who had heard evidence of multiple violations by Theresa C.
(Mother) of its prior orders, announced in an April 7, 2009, letter ruling that

[Mother] failed to disclose the amount of monies given to
her for [D.B.] by the Social Security Administration
due to Father’s disability[,] making it impossible for
the Court to correctly determine the amount of child support arrears.  The Court therefore finds that Father owes Mother
$0 as of September 11, 2008[,]
and
signed a final order stating the same ruling more than a month later on May 11,
2009.  The appellate record does not
indicate that the OAG objected or otherwise
complained about the trial court’s ruling or order below.  Mother did not appeal.
          The OAG asks
in its sole issue, “Did the evidence show as a matter of law that [Father] owes
more than $0 in arrears?”  But in its
discussion of its sole issue, the OAG ultimately
complains that “the trial court abused its discretion in finding that [Father]
owed $0 in arrears on the grounds that it could not correctly determine the
arrearage without [Mother] providing the exact amount of social security benefits
paid to the child due to [Father’s] disability.”
          The confirmation of child support
arrearages is reviewed for an abuse of discretion.[1]  Under the abuse of discretion standard, legal
and factual sufficiency of the evidence are relevant factors to be considered,[2] but they
are not independent grounds for asserting error.[3]  Consequently, legal sufficiency, an issue
which is excepted from the
requirement of preservation in a bench trial,[4] is not
an independent ground for asserting error in this case.
          To preserve a complaint for appellate
review, including a complaint that the trial court abused its discretion,[5] a party
must have presented to the trial court a timely request, objection, or motion
that states the specific grounds for the desired ruling, if they are not
apparent from the context of the request, objection, or motion.[6]  Otherwise, the trial court has no chance to
rule or correct its ruling on the issue.[7]  If a party fails to present its complaint to
the trial court, then error is not preserved, and the complaint is waived.[8]
          Because the appellate record does not
show any request, objection, or motion presented by the OAG
to the trial court regarding its initial letter ruling confirming the arrearage
at $0 or its final order signed more than a month later, we hold that the OAG’s complaint challenging the ruling is not preserved,
overrule the OAG’s sole issue, and affirm the trial
court’s judgment.
 
 
LEE ANN DAUPHINOT
JUSTICE
 
PANEL:  DAUPHINOT, WALKER,
and MEIER, JJ.
 
WALKER, J. filed a dissenting opinion.
 
DELIVERED:  February 24, 2011








 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NO. 02-09-00197-CV
 
 



In the Interest of D.B., a Child


 


 




 




 


 


 



 
----------
FROM THE
325th District Court OF Tarrant
COUNTY
----------
DISSENTING
OPINION
----------
          I respectfully dissent.  In a bench trial, both Appellant The Office of the Attorney General of Texas (The OAG) and Appellee Tony B. (Father) sought confirmation of
the child support arrearage owed by Father.[9]  After a final trial, the trial court signed
an order that “IT IS ORDERED that [Father] owes [Mother] $0 in child support
arrears.”  The OAG
perfected this appeal.
The OAG’s sole issue is, “Did the evidence show as a matter of
law that [Father] owes more than $0 in arrears?”  The OAG’s brief
sets forth the standard of review that it urges this court to apply––abuse of
discretion––and explains that “[a] trial court abuses its discretion as to
factual matters when its decision on a factual issue is contrary to the only
decision that it could reasonably have reached.”  In family law cases, the abuse of discretion
standard of review overlaps with the traditional sufficiency standard of
review; thus, legal and factual insufficiency are not independent reversible
grounds of error but are relevant factors in assessing whether the trial court
abused its discretion.  Neyland v. Raymond, 324 S.W.3d 646, 649 (Tex. App.—Fort Worth 2010, no pet.); Boyd v. Boyd, 131 S.W.3d
605, 610 (Tex. App.—Fort Worth 2004, no pet.).  To determine whether there has been an abuse
of discretion because the evidence is legally or factually insufficient to
support the trial court’s decision, we engage in a two-pronged inquiry: (1) did
the trial court have sufficient evidence upon which to exercise its discretion,
and (2) did the trial court err in its application of that discretion?  Boyd,
131 S.W.3d at 610.  Thus, The OAG’s
briefing squarely places before us the issue of whether the trial court abused
its discretion (erred in its application of its discretion) by determining that
Father owed $0 in arrears when the evidence showed as a matter of law that
Father owed more than $0 in arrears.  See Tex. R. App. P. 38.1(f) (stating
that the statement of an issue will be treated as covering every subsidiary
question that is fairly included).
The
relief prayed for by The OAG on appeal is a new
trial.  Contrary to the Majority
Opinion’s holding, a point in a motion for new trial is not a prerequisite to a
complaint on appeal in either a jury or a nonjury case, except in limited circumstances
that are not applicable here.  See Tex. R. Civ. P. 324(a), (b).  And in a nonjury case, a complaint regarding
the sufficiency of the evidence may be made for the first time on appeal.  See
Tex. R. App. P. 33.1(d).  Despite these
procedural rules authorizing The OAG to seek a new
trial based on an issue not raised in a motion for new trial and to raise a
challenge to the sufficiency of the evidence for the first time on appeal, the
Majority Opinion would require The OAG to make a
“request, objection, or motion presented by [T]he OAG
to the trial court regarding its initial letter ruling.”  The Majority Opinion cites no on-point authority for the proposition that an objection
to a trial court’s informal letter ruling is a prerequisite to raise the issue
presented by The OAG in this appeal.  The Majority Opinion likewise cites no on-point authority for the proposition that the general
preservation rule controls over the specific rules exempting The OAG from raising its issue in a motion for new trial and
authorizing The OAG to raise its complaint for the
first time on appeal.  Compare Tex. R. App. P. 33.1(a), with Tex. R. Civ. P. 324 (a), (b), and Tex. R. App. P. 33.1(d).  I would hold that The OAG’s
issue is properly before this court and would address the merits of The OAG’s complaint. 
Because the Majority Opinion does not, I am forced to dissent.
 
SUE WALKER
JUSTICE
DELIVERED:  February 24, 2011




[1]Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re M.K.R., 216 S.W.3d
58, 61 (Tex. App.—Fort Worth 2007, no pet.).


[2]M.K.R., 216 S.W.3d at 61.


[3]Beaumont Bank, N.A.
v. Buller, 806 S.W.2d
223, 226 (Tex. 1991); In re J.D.D., 242 S.W.3d 916, 920
(Tex. App.—Dallas 2008, pet. denied).


[4]Tex.
R. App. P. 33.1(d); Tex. R. Civ. P. 324(a)B(b).


[5]See, e.g., Knight v. Knight,
301 S.W.3d 723, 730 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (holding that wife waived her complaints that the trial
court abused its discretion regarding the valuation of her 401(k) and  awarding no reimbursement to her separate
estate because she failed to present complaints to the trial court); In re A.B.P., 291 S.W.3d 91, 98
(Tex. App.—Dallas 2009, no pet.) (holding that father did not preserve his
complaint that trial court abused its discretion by ordering him to pay mother
sanction because father did not object to announcement of trial court’s
intended ruling at end of hearing or file a motion for new trial); Harrison v. Harrison, No.
09-06-00445-CV, 2007 WL 4991350, at *3 (Tex. App.—Beaumont Mar. 13, 2008, no
pet.) (mem. op.) (holding husband failed to preserve complaints that trial
court abused its discretion in dividing the estate regarding community debt and
medical coverage for appellant); see also
Yarbrough v. Yarbrough, 151 S.W.3d 687, 694 (Tex.
App.—Waco 2004, no pet.) (Gray, C.J., concurring)
(“Abuse of discretion is not one of the exceptions to the preservation
requirement.”) (citation omitted).


[6]Tex.
R. App. P. 33.1(a); see also Tex. R. Evid.
103(a)(1).


[7]See Knight, 301 S.W.3d
at 730; In re Marriage of Lendman, 170 S.W.3d 894, 898
(Tex. App.—Texarkana 2005, no pet.); Birnbaum v. Law
Offices of G. David Westfall, P.C., 120 S.W.3d
470, 476 (Tex. App.—Dallas 2003, pet. denied), cert. denied, 543 U.S. 1051 (2005); Byrnes v. Byrnes, 19 S.W.3d 556, 561
(Tex. App.—Fort Worth 2000, no pet.).


[8]Bushell
v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh=g).


[9]The OAG claimed that the total arrearage owed by Father was $57,519.66;
Father claimed that the total arrearage he owed, after he was credited for his
social security disability payments that were made to D.B.,
was $36,859.52.


