                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-09-00244-CV


IN THE INTEREST OF L.R.S. AND
C.M.S., CHILDREN




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         FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION1
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                                  I. Introduction

      Appellant Zaida Basora appeals the trial court’s order in this post-divorce

modification and enforcement suit filed against her by Mark Swanson. Basora

contends in five issues that the trial court abused its discretion by excluding her

trial evidence for failure to sufficiently answer interrogatories, by finding that she

overcharged Swanson for health and dental insurance premiums, by failing to

             1
              See Tex. R. App. P. 47.4.
find that Swanson breached his contractual obligation to pay fifty percent of their

daughter’s college expenses, by failing to find that Swanson owed additional

arrearages of $2,100 plus interest, and by denying her request for attorney’s

fees. We affirm.

                                 II. Background

      Basora and Swanson have four daughters. Their two oldest daughters are

twins, and one of the twins is hearing-impaired. Basora and Swanson divorced,

and the trial court signed the agreed divorce decree in September 1995. Basora

was appointed sole managing conservator, Swanson was appointed possessory

conservator, and Swanson agreed to pay child support and to provide health

insurance until the youngest child became emancipated. In addition, the agreed

divorce decree included the following contractual obligation:

      Education Beyond High School

             The parties have AGREED that each party will be responsible
      for and will pay fifty (50) percent of any and all reasonable education
      expenses incurred to send the parties[’] children, . . ., either to
      college or to technical, vocational, or business school, provided the
      child is a full-time student . . . and maintains at least a ―C‖ or
      equivalent grade-point average toward the completion either of a
      college bachelor’s degree or of a technical, vocational, or business
      school diploma. This obligation will include tuition, activities fees,
      laboratory fees, books, room and board, and other charges normally
      related to such education. This obligation will terminate at the time
      each child reaches the age of 25 years.

      Beginning in 1996, Basora carried the children on her employer-provided

health insurance plan, and Swanson made payments to Basora to reimburse her




                                    2
for the cost. In 2007, Basora and Swanson’s twin daughters graduated from high

school and made arrangements to attend college.

      In December 2007, Swanson filed a petition to modify the parent-child

relationship.   Swanson’s live pleading at the time of the hearing sought a

decrease in child support payments, requested that any decrease be applied

retroactively, alleged that Basora had overcharged him for health and dental

insurance premiums, and requested judgment for the excessive health and

dental insurance payments. Basora filed a counter-petition and motion to confirm

child support arrearages in March 2008, and her live pleading at the time of the

hearing sought a retroactive increase in Swanson’s child support obligation and

judgment for Swanson’s alleged cumulative arrearage and failure to pay fifty

percent of college expenses for their two oldest daughters.

      The trial court conducted a hearing on the petition and counter-petition to

modify the parent-child relationship on March 4, 2009. At the hearing, the trial

court sustained Swanson’s numerous objections to Basora’s exhibits and

testimony because the trial court determined that Basora had not adequately

responded to several interrogatories. After the hearing, the trial court signed an

order that retroactively reduced Swanson’s child support obligation, reduced

Swanson’s future child support obligations, required Swanson to continue

providing health insurance for the children, found that Swanson had overpaid

Basora for past health and dental insurance premiums in the amount of

$16,228.18, found that Swanson was in arrears in the amount of $792.66,

                                    3
awarded Swanson $15,991.23 as reimbursement for the health and dental

insurance premium overpayments, ordered Basora to pay Swanson’s attorney’s

fees, and expressly denied Basora’s breach of contract claim for nonpayment of

college expenses. This appeal followed.

                            III. Exclusion of Evidence

      In her first issue, Basora contends that the trial court abused its discretion

by excluding her trial evidence as a discovery sanction based on her failure to

sufficiently answer interrogatories propounded by Swanson. Specifically, Basora

argues that she offered exhibits and attempted to elicit cross-examination

testimony from Swanson at the hearing relating to the cost of health insurance for

the children, how much Swanson paid for the children’s health insurance each

month, and the college expenses Basora had incurred for their daughters but that

the trial court excluded the exhibits and testimony.

      The penalty under rule 193.6 for a party’s failure to respond to a discovery

request is the mandatory exclusion of the evidence requested. See Alvarado v.

Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992); F & H Invs., Inc. v. State, 55

S.W.3d 663, 669 (Tex. App.—Waco 2001, no pet.). A party who fails to make,

amend, or supplement a discovery response in a timely manner may not

introduce in evidence the material or information that was not timely disclosed

unless the court finds that (1) there was good cause for the failure to timely

disclose or (2) the failure will not unfairly surprise or prejudice the other parties.

Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 817

                                      4
(Tex. App.—Fort Worth 2006, no pet.) (citing Tex. R. Civ. P. 193.6(a)). The trial

court has discretion to determine whether the offering party has met its burden,

Id. (citing Alvarado, 830 S.W.2d at 914), but any ―finding of good cause or of the

lack of unfair surprise or unfair prejudice must be supported by the record.‖ Tex.

R. Civ. P. 193.6(b). Moreover, parties have a duty to amend or supplement

discovery responses ―reasonably promptly‖ after discovering the need to amend

or supplement, and ―it is presumed that an amended or supplemental [discovery]

response made less than 30 days before trial was not made reasonably

promptly.‖ Tex. R. Civ. P. 193.5(b).

      Here, the trial court excluded Basora’s exhibits and testimony relating to

the cost of the children’s health insurance, the amount Swanson paid for the

children’s health insurance and the college expenses Basora incurred because

Basora did not adequately respond to interrogatories.         Concerning health

insurance, Swanson’s interrogatory had requested that Basora state the cost of

the health insurance that she provided for the children, the amount she

requested that Swanson pay, and the amount that Swanson paid each month for

the insurance. Basora’s responses, subject to a relevancy objection, were that

the amounts ―varied annually,‖ ―varied annually over the past 13 years,‖ and

―varied annually over the last 13 years‖ and that she did not have documents

containing   the   information.   Concerning    college   expenses,    Swanson’s

interrogatory asked Basora to describe the expenses incurred, state the total

amount of each expense, and the date each expense was incurred and paid.

                                       5
Basora’s answer did not include an objection and referred Swanson to ―bank

statements and statements of amount due‖ that were produced in response to

requests for production.

      Basora first argues that Swanson waived his objections to her interrogatory

response by failing to request a hearing on his motion to compel and obtain a

ruling on her objection.2     Either party can request a hearing on discovery

objections.      See Tex. R. Civ. P. 193.4(a).   The issue here is not Basora’s

relevancy objection but, rather, her failure to provide any information in response

to the interrogatory subject to the objection. Basora’s answer merely stated that

she did not have documents and that the health insurance amounts ―varied

annually.‖    However, Basora admittedly received and possessed documents

containing information responsive to the interrogatory before trial, but she did not

supplement her response to the interrogatory in compliance with her obligations

to fully respond to non-objectionable parts of the interrogatory and to supplement

reasonably promptly. See Tex. R. Civ. P. 193.2(b), 193.5. Thus, the issue is not

one of waiver by Swanson but is one of automatic exclusion unless Basora, who

had the burden, established good cause or the lack of surprise or prejudice as a

result of her failure to supplement her interrogatory answer. See Tex. R. Civ. P.

193.6(a), (b).



      2
      This argument relates only to the health insurance interrogatory because
Basora did not object to the college expense interrogatory.


                                     6
      Basora contends that Swanson was not surprised by her failure to answer

the interrogatories concerning the health insurance and college expenses

because she produced documents to Swanson containing the information

requested in the interrogatories.   Rule 197.2(c) allows a party to specify or

produce the documents containing the information requested in an interrogatory

if the burden of deriving or ascertaining the answer is the same for both parties.

See Tex. R. Civ. P. 197.2(c). However, Basora did not argue to the trial court

and does not argue on appeal that the burden of ascertaining the answers to the

interrogatories was the same for both parties. Further, there is no indication in

the record as to when Basora produced the documents to Swanson, and we

cannot determine whether Basora complied with her obligation to amend or

supplement her discovery responses reasonably promptly after discovering the

need to do so. See Tex. R. Civ. P. 193.5(b). Moreover, the appellate record

does not contain the documents Basora produced to Swanson, so we are unable

to determine whether the information requested in the interrogatories was in fact

provided in response to the requests for production. Therefore, on this record,

we hold that Basora has not established an abuse of discretion because she has

failed to show good cause or the lack of unfair surprise or prejudice. See Tex. R.

Civ. P. 193.6(a), (b); F & H Invs., Inc., 55 S.W.3d at 670–71 (refuting argument of

no unfair surprise based on contention that party had discussions with opponent

and produced responsive documents). We overrule Basora’s first issue.




                                    7
                  IV. Overcharges, College Expenses, and Arrearage

      In her second, third, and fourth issues, Basora contends that the trial court

abused its discretion by granting judgment to Swanson for health and dental

insurance overcharges because there is no evidence to support that award; by

failing to award her judgment for Swanson’s nonpayment of their daughter’s

college expenses; and by failing to find Swanson in arrears by an additional

$2,100 plus interest.

A. Standard of Review

      In a trial to the court in which no findings of fact or conclusions of law are

filed, the trial court’s judgment implies all findings of fact necessary to support it.

Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996); In re Estate of

Rhea, 257 S.W.3d 787, 790 (Tex. App.—Fort Worth 2008, no pet.). But when a

reporter’s record is filed, these implied findings are not conclusive, and an

appellant may challenge them by raising issues challenging the sufficiency of the

evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex.

2002); Estate of Rhea, 257 S.W.3d at 790. In family law cases, however, the

abuse of discretion standard of review overlaps with the traditional sufficiency

standard of review. Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.—Fort Worth

2004, no pet.).

      Accordingly, 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) whether the trial court had

                                      8
sufficient evidence upon which to exercise its discretion and (2) whether the trial

court erred in its application of discretion. Id. The applicable sufficiency review

comes into play with regard to the first question.      Id.   We then proceed to

determine whether, based on the elicited evidence, the trial court made a

reasonable decision.    Id.   In determining whether there is legally sufficient

evidence to support the finding under review, we consider evidence favorable to

the finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.

v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d

802, 807, 827 (Tex. 2005).

B. Health Insurance Overcharges

      Basora argues in her second issue that the trial court abused its discretion

by finding that she overcharged Swanson for health and dental insurance

premiums because there is no evidence of the amounts charged to Swanson for

the years 1995 through 2002; because the trial court impermissibly applied a

2007 statute to Swanson’s pre-2002 obligations; because Swanson’s claim is

barred by the statute of limitations, estoppel, laches, or waiver; and because the

trial court had no authority to require reimbursement of the alleged overcharges.

      1. Sufficient Evidence of Overcharges

      Basora contends that there is no evidence of the amounts charged to

Swanson for the children’s health insurance for the years 1995 through 2002.

However, Swanson testified at the hearing about the amounts he paid for the

                                    9
children’s health insurance for the years 1996 through 2007 and that his

overpayment totaled $16,228.18. In addition, Swanson’s exhibits nine, ten, and

thirteen were admitted into evidence without objection. Exhibit nine is a table

setting forth the health and dental insurance premiums Swanson owed for each

year from 1996 through 2007, the amounts Swanson paid for health and dental

insurance premiums for each of those years, and a calculation of Swanson’s

overpayment for health and dental insurance premiums. Exhibit ten contains the

documents received from Basora’s employer (in response to Swanson’s

subpoena) relating to the children’s health and dental benefits. Although the

documents reflecting the actual benefits provided prior to 2002 were no longer

available—and thus not included within exhibit ten—Basora’s employer did

provide enrollment forms containing the various available elections and a

summary of benefits and rates for active employees for the years before 2002.

Exhibit thirteen is an e-mail from Basora to Swanson stating that she divided the

total health insurance premium by six and then multiplied the result by four to

determine the amount Swanson owed each month for his four daughters.3

However, exhibit thirteen also states that Basora did not deduct any amount

unique to her personal health insurance premium before dividing the total

monthly health insurance premium by six.


      3
        Basora divided the monthly premium by six because she and her son (not
Swanson’s child) were also insured under the plan. Basora then multiplied the
result by four to calculate the premium for her four daughters.


                                   10
      Basora contends that Swanson’s testimony and the exhibits relating to the

amounts Swanson was charged and paid from 1996 through 2002 are no

evidence because the documents reflecting the actual costs of health insurance

for those years are no longer available and because Swanson therefore does not

have personal knowledge of that information.        But Basora did not object to

Swanson’s testimony or any of the three exhibits, and she did not present any

evidence controverting Swanson’s calculation of the overcharges. See Sheldon

Pollack Corp. v. Pioneer Concrete of Tex., Inc., 765 S.W.2d 843, 847 (Tex.

App.—Dallas 1989, writ denied) (holding there was evidence to support

attorney’s fee award where summary of testimony was admitted without

objection).   After reviewing the evidence admitted at trial and applying the

appropriate standard of review, we hold that the trial court had sufficient evidence

upon which to exercise its discretion. We further hold that the trial court did not

abuse its discretion by finding that Swanson paid Basora $16,228.18 more than

he should have paid for the children’s health and dental insurance premiums.

See generally Boyd, 131 S.W.3d at 610–11. We overrule this portion of Basora’s

second issue.




                                     11
      2. No Retroactive Application of Statutory Standard

      Basora also argues within her second issue that the trial court erred by

retroactively applying family code section 154.1824 to Swanson’s obligation to

provide health insurance for the children because the retroactive application

violated the constitutional prohibition of ex post facto laws and deprived her of a

vested right.

      To preserve a complaint for appellate review, 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. Tex. R. App. P. 33.1(a). If a party fails to do this,

error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d

711, 712 (Tex. 1991) (op. on reh’g).

      It is not clear whether the trial court relied on section 154.182 when

determining that Basora should pay Swanson for health insurance overcharges.

But even if the trial court applied section 154.182, Basora did not present her

constitutional and vested rights arguments to the trial court and therefore failed to

preserve them for appellate review. See Tex. R. App. P. 33.1(a). Moreover, we

note that both the current and 1995 versions of section 154.182(b-1) limit the

obligor’s responsibility for health insurance to an amount equal to the ―actual


      4
       Basora specifically cites section 154.182(e), but section 154.182 does not
have a subsection (e). See Tex. Fam. Code Ann. § 154.182 (Vernon Supp.
2010).


                                       12
cost‖ of the health insurance for the child.       See Tex. Fam. Code Ann. §

154.182(b-1); Act of April 20, 1995, 74th Leg., R.S., ch. 20, § 1 (current version at

Tex. Fam. Code Ann. § 154.182(b-1)). We overrule this portion of Basora’s

second issue.

      3. Statute of Limitations, Estoppel, Laches, and Waiver

      Basora also argues that Swanson’s claim for overcharges prior to 2003 is

barred by the statute of limitations, estoppel, laches, and waiver.        Although

Basora pleaded these affirmative defenses in her first amended answer, she did

not raise these affirmative defenses at the hearing or in her motion for new trial.

Therefore, she failed to preserve these arguments for appellate review, and we

overrule this portion of her second issue. See Tex. R. App. P. 33.1(a).

      4. Authority to Require Reimbursement

      In the final part of her second issue, Basora contends that the trial court

did not have authority to order her to reimburse Swanson for the health insurance

premium overcharges. She argues that ―there is no specific statutory authority

for repayment of health insurance costs in excess of the actual cost of health

insurance paid by [Swanson]‖ and that ―it appears that the [trial court] treated the

health insurance premium reimbursement as child support[] but failed to find that

any request for reimbursement [was] premature because the child support

obligation has not terminated.‖ We disagree.

      ―An action for money had and received is an equitable doctrine that courts

apply to prevent unjust enrichment.‖ London v. London, 192 S.W.3d 6, 13 (Tex.

                                     13
App.—Houston [14th Dist.] 2005, pet. denied) (citing Miller-Rogaska, Inc. v. Bank

One, 931 S.W.2d 655, 662 (Tex. App.—Dallas 1996, no writ). ―The cause of

action is not premised on wrongdoing, but looks to the justice of the case and

inquires whether the party has received money that rightfully belongs to another.‖

Id. (citing Amoco Prod. Co. v. Smith, 946 S.W.2d 162, 164 (Tex. App.—El Paso

1997, no writ). The question in an action for money had and received is to which

party does the money, in equity and law, belong. Id. (citing Staats v. Miller, 150

Tex. 581, 243 S.W.2d 686, 687 (1951); Tri-State Chems., Inc. v. W. Organics,

Inc., 83 S.W.3d 189, 194–95 (Tex. App.—Amarillo 2002, pet. denied)).

      In London, the husband paid child support pursuant to a court order that

was reversed on appeal, and the court of appeals held that the husband was

entitled to recover the amount he overpaid pursuant to the subsequently

reversed court order under the equitable doctrine of restitution to prevent unjust

enrichment. Id. at 13–14. Here, Swanson made payments to Basora in an effort

to comply with his support obligations under the divorce decree but discovered

that he had overpaid for health and dental insurance premiums. We hold that

Swanson is entitled, under common law principles, to seek recovery of the

amounts he overpaid to Basora for health and dental insurance premiums. See

id. We overrule the remainder of Basora’s second issue.

C. College Education Expenses

      Basora contends in her third issue that the trial court abused its discretion

by failing to find that Swanson had not honored his contractual obligation to pay

                                    14
fifty percent of his daughter’s college expenses. Swanson responds that Basora

failed to meet her burden of proof.

      As set forth above, the divorce decree obligated Basora and Swanson to

each pay fifty percent of their children’s reasonable college expenses. Basora

argues that the trial court abused its discretion by excluding her evidence

concerning those college expenses, that her daughter’s college expenses are

reasonable, and that Swanson breached his contractual obligation to pay fifty

percent of those college expenses.5 However, we held above that the trial court

did not abuse its discretion by excluding Basora’s evidence.          And because

Basora presented no evidence of the amount of college expenses Swanson

allegedly failed to pay, we hold that the trial court did not abuse its discretion by

failing to find that Swanson breached his contractual obligation to pay fifty

percent of his daughter’s college expenses. See generally Boyd, 131 S.W.3d at

610–11. We overrule Basora’s third issue.

D. Failure to Find Additional Arrearages

      In her fourth issue, Basora argues that the trial court abused its discretion

by failing to find Swanson in arrears for an additional $2,100 plus interest.

Basora testified that Swanson was $2,100 in arrears on his child support

payments in 1997; that Swanson made a payment in 1997 through the child


      5
       Basora appears to argue that Swanson anticipatorily breached his
contractual obligation by telling his daughter that she might have to get a student
loan to pay for college because his resources are limited.


                                      15
support office in that amount; and that she and Swanson agreed that she would

not negotiate the check at that time but rather that Swanson would make the

payment at a later, undetermined date. Swanson testified that he and Basora

agreed that Basora would not negotiate the $2,100 check because Basora had

taken possession of a refrigerator, playground equipment, and swing sets that

were awarded to him in the divorce decree. It is undisputed that Swanson made

the payment through the child support office, that Basora had physical

possession of the check, and that Basora did not negotiate the check.

      To prevail on her claim for the additional $2,100, Basora had the burden to

prove the amount of the arrearages due. See George v. Jeppeson, 238 S.W.3d

463, 473 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re S.R.O., 143

S.W.3d 237, 248 (Tex. App.—Waco 2004, no pet.); Curtis v. Curtis, 11 S.W.3d

466, 472 (Tex. App.—Tyler 2000, no pet.). If the arrearages are proven, the trial

court has an affirmative, ministerial duty under family code section 157.253(a) to

confirm the arrearages and reduce them to judgment. See George, 238 S.W.3d

at 473. However, the trial court’s duty under section 157.253(a) does not arise

until the petitioner meets her burden to provide adequate proof to substantiate

the arrearages alleged. Id.

      Basora argues that any agreement she might have had with Swanson to

reduce Swanson’s child support arrearage is void because she and Swanson are

prohibited by the family code from settling a claim for arrearages and the trial

court does not have the authority to forgive child support arrearages. See Tex.

                                    16
Fam. Code Ann. §§ 157.262 (Vernon Supp. 2010); .263 (Vernon 2008); Curtis,

11 S.W.3d at 471 (stating that ―the trial court has no authority to reduce or modify

the amount of arrearages in rendering judgment‖ and that ―parents of the child

may not settle child support claims until after the arrearages have been

confirmed and cumulated in a money judgment or until the trial court has lost

jurisdiction to enforce the unpaid child support debt.‖). These principles do not

apply, however, if the amount of arrearage is not proven. See Tex. Fam. Code

Ann. §§ 157.262, .263; George, 238 S.W.3d at 474.

      The trial court heard conflicting evidence about the parties’ versions of

events relating to the payment of the $2,100. It is undisputed that Swanson

made the payment and that Basora had physical possession of the check.

Further, the trial court heard evidence that Basora and Swanson agreed that

Basora would keep certain items of personal property by paying Swanson $2,100

(i.e., not negotiating the $2,100 check she received through the child support

office). Thus, the trial court could have found that Swanson paid the $2,100 as

required by the divorce decree and that he was not in arrears for the $2,100

because of the parties’ agreement relating to the personal property. Applying the

applicable abuse of discretion standard, we defer to the trial court’s resolution of

the conflicting evidence presented and hold that the record supports the trial

court’s implied finding that Basora failed to meet her evidentiary burden to prove

Swanson’s arrearages. See George, 238 S.W.3d at 474. And because Basora

failed to meet her evidentiary burden, no section 157.263(a) duty to confirm the

                                     17
amount of arrearages ever arose. Id. (citing Tex. Fam. Code Ann. § 157.263(a)).

We overrule Basora’s fourth issue.

                                V. Attorney’s Fees

      Basora argues in her fifth issue that the trial court abused its discretion by

awarding attorney’s fees to Swanson and by failing to award her attorney’s fees.

She contends that Swanson failed to prove the overcharges for health and dental

insurance premiums, that the unproven overcharges cannot support an award of

attorney’s fees to Swanson, and that the trial court had a mandatory duty to

award her attorney’s fees because it found Swanson in arrears on child support

obligations but failed to make a good cause finding under family code section

157.167(c) as to why Swanson should not pay her attorney’s fees. Swanson

responds that there was no arrearage because his overpayments offset any

arrearages.

      Basora first contends that the trial court erred by awarding attorney’s fees

to Swanson because he failed to prove that she overcharged him for health and

dental insurance premiums. We held above, however, that the trial court did not

abuse its discretion by finding that Basora charged Swanson $16,228.18 more

than she should have for the children’s health and dental insurance premiums.

We therefore overrule this part of Basora’s fifth issue.

      Basora next argues that because she proved that Swanson was in arrears,

the trial court had a mandatory duty to award her attorney’s fees. In In re S.L.M.,

the respondent’s arrearage was $14,874.60 but his offset totaled $20,405.75.

                                     18
See 97 S.W.3d 224, 237 (Tex. App.—Amarillo 2002, no pet.).            Because the

respondent’s offset exceeded his arrearage, the S.L.M. court held that the trial

court did not err by failing to award the petitioner interest, attorney’s fees, and

costs. See id. at 236–37. Here, the trial court found that Swanson was entitled

to offset his $792.66 arrearage with $16,783.89 owed to him by Basora for health

and dental insurance premium overpayments and non-covered dental expenses.

After the offset, Basora owed Swanson $15,991.23. Thus, Swanson owed no

arrearage after the offset, and the trial court was not required to make a good

cause finding under family code section 157.167(c) before denying Basora’s

request for attorney’s fees. See id.; see also Tex. Fam. Code Ann. § 157.167(a),

(c) (Vernon 2008); Beck v. Walker, 154 S.W.3d 895, 907–08 (Tex. App.—Dallas

2005, no pet.). The trial court did not abuse its discretion by failing to award

Basora attorney’s fees.      See S.L.M., 97 S.W.3d at 237.       We overrule the

remainder of Basora’s fifth issue.

                                  VI. Conclusion

         Having overruled each of Basora’s five issues, we affirm the trial court’s

order.




                                                    ANNE GARDNER
                                                    JUSTICE

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

DELIVERED: March 3, 2011


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