COURT OF APPEALS

	SECOND DISTRICT OF TEXAS

	FORT WORTH

	NO. 2-08-023-CV

IN THE INTEREST OF K.C. 	

AND R.C., CHILDREN

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	FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY

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	MEMORANDUM OPINION1

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	Appellant Ernesto W. Callender appeals from a final order in a suit affecting the parent-child relationship.  We affirm.

	Ernesto and appellee Cindy L. Callender were divorced on April 6, 2000.  Pursuant to the final decree of divorce, Cindy was appointed sole managing conservator and Ernesto was appointed sole possessory conservator of the two children of the marriage, K.C. and R.C.  Also, Cindy was appointed the person with the right to establish the primary residence of the children, and Ernesto was ordered to pay child support.  

	On August 21, 2006, Ernesto filed a petition to modify the parent-child relationship, alleging that the circumstances of the children, a conservator, or other party affected by the April 6, 2000 order had materially and substantially changed.2  The trial court referred the case to an associate judge3 and temporary orders concerning conservatorship, possession, visitation, and child support were subsequently entered on September 20, 2006, March 6, 2007, June 4, 2007 and August 3, 2007.4  

	On November 26, 2007, asserting that the temporary orders had become “wholly unworkable,” Cindy moved for entry of a final order.5  A hearing was held on December 6, 2007, and after considering the evidence and testimony of both parties, the associate judge finalized the matter as follows: (1) Cindy was named joint managing conservator with the primary rights, duties, and responsibilities to the children; (2) the children would reside with Cindy and complete their high school education in Tarrant County, Texas; and (3) Ernesto was required to pay child support in the amount of $500 per month.  On December 18, 2007, Cindy filed a motion asking the trial court to sign a final order.6  Cindy’s motion was set for hearing on December 21, 2007.

	Ernesto was served with notice of the hearing on December 18, 2007, but did not respond to Cindy’s motion and did not appear at the hearing.  The trial court signed a final order on December 21, 2007 adopting the associate judge’s report.7  

	On January 8, 2008, Ernesto objected in writing to the final order,  complaining that he “was not given enough time to appear” at the hearing and requesting another hearing.  The trial court did not take any action on Ernesto’s objection.  

	In three issues, Ernesto contends that the trial court abused its discretion in holding a hearing on Cindy’s motion because he was not given sufficient notice as required by Local Rule 4.05(4)8 and Texas Rules of Civil Procedure 21 and 21a9 and was deprived his constitutional right to due process.10

	A party waives a complaint regarding insufficient notice if the party fails to preserve the complaint.11  To preserve a notice complaint, a party must bring the lack of adequate notice to the trial court’s attention at the hearing and object to the hearing going forward or move for a continuance.12  If a party receives notice that is untimely, but is sufficient to enable the party to attend the hearing, the party must file a motion for continuance or raise the complaint of late notice before the trial court during the hearing.13  “To hold otherwise would allow a party who participated in the hearing to lie behind the log until after a motion is granted and then raise the complaint of late notice for the first time in a post-trial motion.”14  Only when a party is not given notice of the hearing, or a party is deprived of its right to seek leave to file affidavits or other written response, may he preserve error in a post-trial motion.15

	Ernesto acknowledges that he received notice of the hearing on December 18, three days before the hearing.  We found no evidence in the record that Ernesto objected to the notice or moved for a continuance prior to the hearing.  Thus, Ernesto has waived his right to raise an issue of insufficient notice on appeal.16  We overrule his three issues and affirm the trial court’s judgment.  

								PER CURIAM

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

WALKER, J., concurs without opinion.

DELIVERED:  September 11, 2008