                           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.

      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).



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      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



      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).




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      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




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                        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.1 After a final trial,




      1
       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.
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




                                           2
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




                                           3
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




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