Affirmed and Memorandum Opinion filed August 21, =
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-01126-CV
____________
KEITH JAMES=20
HALLA, =
Appellant
V.
DINA MARIE=20
HALLA, =
Appellee
On Appeal from the =
306th District Court
Galveston County, =
Texas
Trial Court Cause =
No. 98FD0122
M E M O R=20
A N D U M O P I N I O N
This limited appeal =
originates=20
from a suit to modify a trial court=3Ds prior Order in Suit =
to Modify=20
Parent-Child Relationship, which was based on a mediated =
settlement=20
agreement between the appellant, Keith James Halla, and appellee, =
Dina=20
Marie Halla, regarding conservatorship of their son, Joseph =
Michael=20
Halla. In a single point of error, appellant contends that =
the trial=20
court erred in denying his Motion to Amend, Correct or Reform=20
Judgment. We affirm.
Background
Appellant initiated =
the action=20
below by filing a petition to modify the trial court=3Ds prior Order in Suit =
to Modify=20
Parent-Child Relationship, rendered July 6, 2001, which was based =
on a=20
mediated settlement agreement between the parties and provided in=20
principal that (1) each parent have primary custody of the child =
six=20
months every year as joint managing conservators, (2) the child =
attend=20
Walter Hall Elementary School, and (3) neither party be obligated =
to pay=20
child support. In response, appellee filed a =
counter-petition,=20
requesting that the court award her the exclusive right to make =
decisions=20
concerning the child=3Ds education, and that =
the=20
restriction requiring the child attend Walter Hall Elementary =
School be=20
removed.
Appellant then filed =
a first=20
amended original petition detailing in particular the changed=20
circumstances compelling modification of the court=3Ds prior order, and =
requesting=20
(1) the exclusive right to designate the child=3Ds primary residence, =
(2) the=20
exclusive right to make decisions concerning the child=3Ds education, and (3) =
retention=20
of all other terms of the previous order. Shortly =
thereafter,=20
appellee filed a first amended petition likewise requesting that =
she be=20
awarded the exclusive right to designate the primary residence of =
the=20
child.
Following a brief =
trial, the=20
jury returned a verdict finding that circumstances had changed=20
sufficiently to support modification, and it was in the best =
interest of=20
the child to award appellee the exclusive right to designate the=20
child=3Ds primary residence, =
restricted=20
to the bounds of Clear Creek Independent School District. =
After=20
receiving the verdict, the judge stated: AWhat we need to do is =
plan on a=20
time to finish the ancillary matters.@ The judge then =
urged the=20
parties to attempt to reach an agreement regarding the remaining =
ancillary=20
matters, stating Aif you cannot resolve =
it=20
without my intervention we=3Dll have a hearing on =
the issues=20
that are before me which are basically access and child=20
support.@ The judge then =
set a=20
hearing date.
At the subsequent =
hearing, the=20
judge called the case and stated that the matter to be addressed =
was=20
Aa continuation of the =
hearing=20
that started with the jury case on August 21 and ended with a =
verdict on .=20
. . the jury portion of the issues on August 23.@ The judge =
further=20
said: ABoth parties were =
notified at=20
that time that we would have a hearing to resolve the final =
nonjury issues=20
before the court this afternoon at 1:30.@ The judge then =
asked the=20
attorneys if they were in agreement regarding the remaining issues =
before=20
the court. As appellee=3Ds counsel went =
through each=20
issue in turn, appellant=3Ds counsel confirmed =
agreement=20
on each point, including Aa child support =
figure which=20
[the parties] agreed on,@ and Aan expanded standard =
possession=20
order@ altering visitation=20
rights. The judge reiterated Achild support [would] =
be $876=20
per month@ and set it to =
commence=20
ASeptember 15 and =
[continue]=20
monthly thereafter.@ The judge then =
noted=20
that it would Aaccept those =
agreements as a=20
Rule 11 agreement@ to be incorporated =
along with=20
the jury verdict in its final order, and set a timetable to =
provide the=20
parties adequate time to finalize their agreement. At no =
point=20
during the hearing did appellant object to the proceedings or to =
the terms=20
as proposed by appellee or the court.
Finally, on September =
29, 2006,=20
the judge entered a final Order in Suit to Modify Parent-Child=20
Relationship, reflecting the terms of both the jury=3Ds verdict and the=20
parties=3D agreement. =
Appellant=20
subsequently filed a Motion to Amend, Correct, or Reform the =
Judgment,=20
which the court denied.
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Discussion
A trial =
court=3Ds decision modifying =
the=20
parent-child relationship is reviewed for abuse of discretion, and =
will=20
only be disturbed where it is clear the court acted in an =
arbitrary or=20
unreasonable manner, without reference to any guiding rules or =
principles.=20
Turner v. Turner, 47 S.W.3d 761, 763 (Tex. =
App.CHouston [1st Dist.] =
2001, no=20
pet.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 =
(Tex.=20
1982), and Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.=20
1990)).
Appellant =
specifically=20
contends: (1) the trial court=3Ds final Order in Suit =
to Modify=20
Parent-Child Relationship granted excessive relief not raised by =
the=20
pleadings; (2) there were no pleadings, evidence, or issues =
submitted to=20
the jury inquiring about any of the elements necessary to support=20
modification; and (3) the trial court had no authority to order a=20
Abifurcated =
trial@ on issues not =
submitted to the=20
jury. We shall discuss each contention in turn.
=
(1) Excessive Relief
Appellant first =
contends that=20
the trial court=3Ds final order granted =
excessive=20
relief not raised by the pleadings when it altered =
appellant=3Ds rights of access, =
ordered him=20
to pay child support, and removed the requirement that the child =
attend=20
Walter Hall Elementary School. In child custody and support =
cases,=20
the paramount concern for the court is the best interests of the =
child;=20
accordingly, detailed pleadings are not required, and the =
technical rules=20
of pleading and practice are afforded little importance. =
Cohen v.=20
Sims, 830 S.W.2d 285, 288 (Tex. App.CHouston [14th Dist.] =
1992, no=20
writ); Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex.=20
App.CHouston [1st Dist.] =
1985, no=20
writ). At minimum, the pleadings must notify the opposing =
party of=20
the claim involved. Tex. R.=20
Civ. P. 47(a). Once the parties have properly invoked =
a=20
court=3Ds jurisdiction, the =
court is=20
given wide discretion in the proceedings and is Avest[ed] with =
decretal powers=20
regarding all relevant custody, control, possession, and =
visitation=20
matters involving the child.@ Dunker v. =
Dunker,=20
659 S.W.2d 106, 107-08 (Tex. App.CHouston [14th Dist.] =
1983, no=20
writ) (citing Ex parte Eaton, 252 S.W.2d 557 (Tex. 1952)); =
see=20
also Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.=20
1967).
Although appellant =
correctly=20
notes that a trial court=3Ds judgment must =
conform to the=20
pleadings, A[w]hen issues not =
raised by the=20
pleadings are tried by express or implied consent of the parties, =
they=20
shall be treated in all respects as if they had been raised in the =
pleadings.@ Tex. R. Civ. P. 67; =
see also=20
id. 301 (AThe judgment of the =
court shall=20
conform to the pleadings, the nature of the case proved and the =
verdict,=20
if any . . . .@); Herrington v. =
Sandcastle=20
Condo. Ass=3Dn, 222 S.W.3d 99, 102 =
(Tex.=20
App.CHouston [14th Dist.] =
2006, no=20
pet.) (A[A] trial court =
cannot enter=20
judgment on a theory of recovery not sufficiently set forth in the =
pleadings or otherwise tried by consent.@) (emphasis =
added). In=20
order to determine whether an issue was tried by consent, this =
Court must=20
Aexamine the record =
not for=20
evidence of the issue, but rather for evidence of trial of the=20
issue.@ Haas v. =
Ashford=20
Hollow Cmty. Improvement Ass=3Dn, 209 S.W.3d 875, =
883-84 (Tex.=20
App.CHouston [14th Dist.] =
2006, no=20
pet.); Pickelner v. Adler, No. 01-03-01050-CV, 2007 WL =
1844922, at=20
*4 (Tex. App.CHouston [1st Dist.] =
June 28,=20
2007, no pet.) (quoting RE/MAX of Tex., Inc. v. Katar =
Corp., 961=20
S.W.2d 324, 328 (Tex. App.CHouston [1st Dist.] =
1997, no=20
pet.)). For example, consent may be found where Aevidence [regarding a =
party=3Ds unpleaded issue] is =
developed=20
under circumstances indicating both parties understood the issue =
was in=20
the case, and the other party failed to make an appropriate=20
complaint.@ Haas, =
209 S.W.3d=20
at 884 (citing Johnson v. Structured Asset Servs., LLC, 148 =
S.W.3d=20
711, 719 (Tex. App.CDallas 2004, no=20
pet.)).
In the present case, =
it is=20
clear from the record that both parties expressly consented to =
adjudicate=20
not only the issues presented to the jury but also the ancillary =
matters=20
of child support, access, and school attendance not explicitly =
raised in=20
the pleadings. After the jury returned its verdict, the =
judge=20
requested that the parties attempt to resolve the nonjury issues =
of child=20
support and access, stating that barring agreement, a hearing =
would be=20
held on those subjects. =20
Appellant did not object to this procedure and even agreed to set =
a date=20
for the hearing. Subsequently, at the hearing, the judge =
called the=20
case, stating that it was a continuation of the earlier =
proceeding. =20
Both parties indicated to the court that they had come to an =
agreement and=20
would draft an order in the form of a Rule 11 agreement to be =
incorporated=20
in the trial court=3Ds final judgment.=20
See Tex. R. =
Civ. P.=20
11.
Among the matters =
addressed in=20
the proceedings and agreed to by appellant=3Ds counsel were the =
amount of=20
child support appellant would be obligated to pay, as well as the =
adoption=20
of an expanded standard possession order modifying =
appellant=3Ds visitation =
rights. At=20
no time did appellant=3Ds counsel object to =
these=20
issues as proposed by opposing counsel, let alone their inclusion =
in the=20
proceedings before the court; rather, appellant=3Ds counsel merely =
requested=20
ample time to review the final order with his client before it was =
submitted to the court. Thus, appellant had several =
opportunities to=20
object to the inclusion of the issues of child support, access, =
and school=20
attendance in the proceedings but did not do so. =
Accordingly, we=20
find that appellant consented to trial of these issues.
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(2) Elements Necessary to Support =
Modification
Next, appellant =
contends that=20
there are Ano pleadings, =
evidence or issue=20
[sic] submitted to the jury@ regarding the =
elements=20
necessary to support a modification as required by chapter 156 of =
the=20
Texas Family Code. To modify a previous order providing =
child=20
support or detailing conservatorship of a child: (1) the=20
modification must be in the best interest of the child, and (2) =
the=20
circumstances of the child, conservator, or other person or party =
affected=20
by the order must have materially and substantially changed since =
the=20
earlier of (a) the date the order was rendered, or (b) the date =
the=20
mediated settlement agreement on which the order is based was=20
signed. See Tex. Fam.=20
Code ''=20
156.101, =
156.401.
We begin by noting =
that because=20
appellant did not raise this argument in the trial court, he =
failed to=20
preserve it. See Tex.=20
R. App. P. 33.1; Greenberg Traurig of N.Y., P.C. v. =
Moody,=20
161 S.W.3d 56 (Tex. App.CHouston [14th Dist.] =
2004, no=20
pet.). =
Further, even if=20
appellant had preserved error, appellant=3Ds argument that no =
pleadings=20
raised the elements necessary to support modification is factually =
incorrect because appellant=3Ds own First Amendment =
to=20
Original Petition to Modify Parent-Child Relationship (1) alleged =
that=20
A[t]he actions of a =
person=20
affected by the order have materially and substantially changed =
since the=20
ratification of the [court=3Ds original July 6, =
2001]=20
Order,@ and (2) mentioned =
the best=20
interests of the child. Appellant=3Ds contention that no =
issue was=20
submitted to the jury is also factually incorrect: Question =
1 of the=20
jury charge specifically asked whether it was Ain [the =
child=3Ds] best interest to =
modify the=20
existing order and [whether there had] been a material and =
subsequent=20
change in either his circumstance [sic] or those of either of the=20
conservators to warrant a modification of the current court=20
order.@ Lastly, =
regarding=20
appellant=3Ds contention that no =
evidence=20
supports a finding on the elements necessary for modification, =
appellant=20
cites no authority and provides no analysis regarding the legal=20
sufficiency of the evidence. Accordingly, this issue is not =
properly=20
briefed. See Tex. R.=20
App. P. 38.1(h). For the foregoing reasons, we find=20
appellant=3Ds argument alleging =
the absence=20
of the elements necessary to support modification without=20
merit.
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(3) ABifurcated=20
Trial@
Finally, appellant =
contends=20
that the judgment should be corrected to conform strictly to the=20
jury=3Ds verdict because the =
trial=20
court Ahad no authority to =
order a=20
bifurcated trial on issues . . . not found by the jury@Cnamely, child support =
and=20
access. In child support and custody cases tried before a =
jury, the=20
court may not contravene a jury verdict on the determination of =
(1) which=20
joint managing conservator has the exclusive right to designate =
the=20
primary residence of the child, or (2) whether to impose a =
restriction on=20
the geographic area in which a joint managing conservator may =
designate=20
the child=3Ds primary =
residence. =20
Tex. Fam. Code=20
' 105.002(c). By =
contrast, the=20
court may not submit to the jury questions on the issues of (1) =
support,=20
(2) specific terms or conditions concerning access to the child, =
or (3)=20
any other rights or duties of a conservator other than the right =
to=20
designate the primary residence of the child. Id.
In the present case, =
the jury=20
was appropriately charged within these limitations; specifically, =
the jury=20
was asked to decide whether a modification was in the =
child=3Ds best interest and =
whether=20
there had been a change in circumstances, and then, if so, which =
parent to=20
award the exclusive right of designating the child=3Ds primary residence, =
as well as=20
whether to restrict that right geographically. Moreover, the =
jury=20
charge explicitly stated A[t]he Judge will =
decide on the=20
terms of visitation, support, and other specific rights awarded to =
one or=20
both parents.@ The record =
further=20
reflects that the issues of child support and access were properly =
bifurcated from the jury portion of the trial and subsequently =
settled by=20
the parties themselves. Therefore, the trial court did not =
abuse its=20
discretion by addressing the issues separately. Accordingly, =
appellant=3Ds sole point of error =
is=20
overruled.
We affirm the trial=20
court=3Ds =
judgment.
/s/ =20
Adele Hedges
Chief Justice
Judgment rendered and =
Memorandum Opinion filed August 21, 2007.
Panel consists of =
Chief Justice=20
Hedges and Justices Hudson and Guzman.
It is the policy of this state to =
encourage=20
the resolution of disputes involving the parent-child relationship =
through=20
voluntary settlement procedures. Tex. Civ. Prac. & Rem.=20
'=20
154.002.
Because appellant ordered only =
post-trial=20
excerpts of the reporter=3Ds record, it is impossible to tell what =
may or may=20
not have been raised during the jury trial. We must presume =
that=20
missing parts of the record are relevant and support the =
judgment. =20
Tex. R. App. P. =
34.6(c);=20
see also Mason v. Our Lady Star of Sea Catholic Church, 154 =
S.W.3d=20
816, 819-20 (Tex. App.CHouston [14th Dist.] 2005, no pet.) =
(citing=20
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.=20
1990)).
Appellant=3Ds Motion to Amend, Correct or Reform =
Judgment=20
argued that the trial court=3Ds final judgment granted excessive =
relief,=20
unsupported by the pleadings, by altering appellant=3Ds visitation rights, obligating him to =
pay child=20
support, and removing the requirement the child attend a =
particular=20
school. Appellant cites to no other point in the record for=20
preservation of this issue.
To support his argument, =
appellant cites=20
Rule 300 of the Texas Rules of Civil Procedure (stating that where =
a=20
special verdict is rendered, the court shall render judgment =
thereon) and=20
Traywick v. Goodrich (holding A[w]here there is no irreconcilable =
conflict in the=20
jury=3Ds findings, it is the ministerial duty =
of the=20
Judge to enter a judgment on the verdict and the matter involves =
no=20
judicial or discretionary powers.@). Tex. R. Civ. P. 300; =
364 S.W.2d=20
190, 191 (Tex. 1963). It should be noted, however, that in =
rendering=20
its final judgment in the present case, the trial court did not =
alter the=20
verdict as returned by the jury but rather incorporated it =
unchanged in=20
the final order. Thus, the court did not contravene the=20
jury=3Ds verdict, but preserved its =
determination=20
intact.
We take no position regarding =
whether a=20
trial court may still make advisory submissions to the jury on =
these=20
issues. See Martin v. Martin, 776 S.W.2d 572, 574 =
(Tex. 1989)=20
(discussing use of advisory submissions under former Family Code =
section=20
11.13(b), a predecessor to section 105.002); see also Lenz v. =
Lenz,=20
79 S.W.3d 10, 20 (Tex. 2002) (discussing Martin as well as =
advisory=20
submissions under prior version of section=20
=
105.002). |