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in the Interest of M.G.N. and A.C.N., Minor Children
04-12-00108-CV.
Court of Appeals of Texas.
Jul 29, 2015.
Published

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.

04-12-00108-CV

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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04-12-00108-CV

(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, 04-12-00108-CV between George (75%) and Monica (25%); and (4) George was to pay attorney’s fees for two of Monica’s attorneys.

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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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04-12-00108-CV

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) 04-12-00108-CV 04-12-00108-CV 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.

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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.”

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04-12-00108-CV 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 04-12-00108-CV 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.

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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 04-12-00108-CV 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.

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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.

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.
2 Dr. Gayle Monnig is a licensed psychologist who, before the parties divorced, made recommendations relating to custody. - 12 - 04-12-00108-CV 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.
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. - 24 - 04-12-00108-CV
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.
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 -