Lead Opinion
MAJORITY OPINION
Katy Shuk Chi Lau Messier appeals from the trial court’s final decree of divorce, dissolving her marriage to appellee Luc J. Messier. In three issues, Katy challenges the trial court’s grant of permanent injunctions primarily concerning international travel with the children of the marriage. We modify the trial court’s final decree and, as so modified, we affirm.
Background
Luc and Katy were married in 1998 and have two minor children. Luc is from Canada and Katy is from Hong Kong. Neither is a United States citizen, but the family has lived in Houston for several years. In 2009, Luc filed for divorce and Katy filed a counter-petition. At trial, both sought to be named sole managing conservator of the children. In his First Amended Petition, his live petition at the
During trial before a jury, evidence was presented regarding erratic behavior by Katy, including threats to commit suicide and harm the children if Luc did not permit her to move back to Hong Kong with them, her dissatisfaction with life in the United States and Houston in particular, allegations she made to one of the children about Luc, and a threat to accuse Luc of rape while they were in Hong Kong so that he would be arrested. Additional, substantial evidence was presented regarding Katy’s desire to return to Hong Kong to live with her children. Much of this evidence was in the form of testimony by Luc, but it also included testimony by mental health professionals, audio and video recordings, and documentary evidence. Luc in particular expressed considerable concern that Katy would leave the country with the children.
At the conclusion of a trial before a jury, the jury named Luc sole managing conservator of the children.
Certain of this relief appears modeled after the “Abduction Prevention Measures” listed in section 153.503 of the Texas Family Code, which are to be considered by the trial court upon a finding of a potential risk of international abduction under sections 153.501 and 153.502. Tex. FarmCode §§ 153.501-503. However, in its “Rendition and Verdict,” the trial court stated,
Based upon careful consideration after the mandatory review of the factors set out in Texas Family Code Section 153.502 as a prerequisite to such determination, the court is unable to find that credible evidence has been presented indicating a potential risk of the international abduction of the children by a parent. The court has included in the decree provisions found to be in the best interest of the children that the court*907 believes are within the discretion of the court and are not dependent on a finding contemplated by Family Code Section 153.501.
Furthermore, the court stated as follows in its findings of fact:
The court, having reviewed Texas Family Code § 153.502, does not find that credible evidence has been presented indicating a potential risk of the international abduction of the children by a parent, as required by § 153.502; however, the court does find that certain injunctions and conditions regarding international travel are in the best interest of the children, as set forth in the Final Decree of Divorce.
In its conclusions of law, the court then listed the same injunctions as discussed above.
In three issues, Katy specifically contends that the trial court erred in entering the injunctions because (1) Luc did not plead for such injunctive relief, (2) the evidence was insufficient to support the injunctions, and (3) the court’s order failed to comply with the requirements for issuing a permanent injunction. We will discuss each issue in turn.
Sufficiency of the Pleadings
In her first issue, Katy contends the trial court erred in entering certain of the injunctions against her because no pleadings supported that relief. As stated above, in his live petition at the time of trial, Luc requested “the Court to determine whether there is a risk of international abduction of the children by [Katy] and to take such measures as are necessary to protect the children.” Luc further prayed for “general relief.” Katy specifically argues that Luc’s pleadings were insufficient to support the injunctions the court entered related to international travel.
Texas Rule of Civil Procedure 301 requires that a judgment “conform to the pleadings” filed in the case. Tex.R. Civ. P. 301. In child custody cases, where the best interests of the child are the paramount concern, technical pleading rules are of reduced significance. E.g., Cain v. Cain, No. 14-07-00114-CV, 2007 WL 4200638, at *4 (Tex.App.-Houston [14th Dist.] Nov. 29, 2007, no pet.) (mem. op.) (holding that determining the best interest of the child should not be hampered by “narrow technical rulings”); Halla v. Halla, No. 14-06-01126-CV, 2007 WL 2367600, at *2 (Tex.App.-Houston [14th Dist.] Aug. 21, 2007, no pet.) (mem. op.) (explaining that, in child custody and support cases, “detailed pleadings are not required”); Peck v. Peck, 172 S.W.3d 26, 35 (TexApp.-Dallas 2005, pet. denied) (holding a trial court has discretion to place conditions, including a permanent injunction, on parental visitation even if the pleadings do not request such conditions); see also Sanchez v. Sanchez, No. 04-06-00469-CV, 2007 WL 1888343, at *5 (Tex.App.-San Antonio July 3, 2007, pet. denied) (holding that “the prayer for general relief, the allegations and requests within the petition, and the evidence presented authorized the trial court to order the permanent injunction”). Pleadings must at a minimum notify the opposing party of the claim involved. Halla, 2007 WL 2367600, at *2 (citing Tex.R. Civ. P. 47(a)).
Permanent Injunction Requirements
In her third issue, Katy contends that the trial court abused its discretion in granting injunctive relief in the final decree when Luc failed to plead or prove the traditional requirements for permanent injunctions: (1) a wrongful act, (2) imminent harm, (3) irreparable injury, and (4) the lack of an adequate remedy at law.
Abuse of Discretion
In her second issue, Katy generally contends that the trial court abused its discretion in granting certain permanent injunctions because the evidence does not support granting those in junctions.
An abuse of discretion occurs when a court acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex.2011). A trial court also abuses its discretion if it fails to apply the law correctly. Id. An abuse of discretion does not occur if some evidence of a substantive and probative character exists to support the trial court’s decision and that decision constitutes a correct application of the law. See Arredondo, 383 S.W.3d at 740-41. Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for asserting error, but are relevant factors in assessing whether a trial court abused its discretion. In re Davis, 30 S.W.3d 609, 614 (Tex.App.-Texarkana 2000, no pet.). We must consider only the evidence most favorable to the trial court’s ruling and will uphold its judgment on any legal theory supported by the evidence. Arredondo, 383 S.W.3d at 740-41.
Katy argues generally that there was no evidence to support the injunctions.
The majority of Katy’s arguments appear focused on discounting evidence regarding a risk of international abduction. As discussed above, the trial court specifically stated in its findings of fact that it did not “find that credible evidence has been presented indicating a potential risk of ... international abduction.”
Given this evidence, it would have been reasonable for the trial court to conclude that, quite apart from any risk of international abduction, it was in the best interest of the children to limit Katy’s control over international travel with the children. A trial court may grant, deny, restrict, or limit any of a possessory conservator’s rights, privileges, duties, and responsibilities with respect to the child as is necessary to protect the child’s best interest. See Tex. Fam.Code § 153.072; Elshafie v. Elshafie, No. 13-10-00393-CV, 2011 WL 5843674, at *3 (Tex.App.-Corpus Christi Nov.22, 2011, no pet.) (citing Hopkins v. Hopkins, 853 S.W.2d 134, 137 (Tex.App.-Corpus Christi 1993, no writ)). The evidence presented at trial supports the conclusion that prohibiting Katy from taking the children outside the United States or Texas without Luc’s consent and prohibiting her from retaining or obtaining passports for the children appear to be reasonable restrictions of Katy’s rights as a possessory conservator and in the best interest of the children.
But not all of the injunctions which the trial court imposed appear rationally related to Luc’s control of international travel by the children. Neither do they appear to be reasonable restrictions on the possessory conservator’s rights with respect to the children absent a finding of a potential risk of international abduction. The requirements that Katy provide to the State Department, as well as a foreign embassy or consulate, notice of the court-ordered travel restrictions, a copy of the decree, and proof of her agreement to the restrictions,
The trial court’s orders that Katy cannot interfere with Luc’s right of possession or hide or secrete the children from hi m, however, do not appear solely connected to a risk of international abduction. As Katy argues, Luc cites no evidence suggesting Katy has interfered with his possession or hidden the children from him in the past. However, as discussed above, there was considerable evidence that Katy was prone to erratic behavior and manipulation. This evidence was sufficient to support the trial court’s orders on interference, hiding, and secreting; thus, the trial court did not abuse its discretion in issuing these orders. See generally Tex. Fam. Code § 158.072; Elshafie, 2011 WL 5843674, at *3.
Evidence was also presented to support the injunction barring Katy from discussing the custody case or related issues around the children. For example, a psychologist testified that certain comments attributed to Katy were those of “a parent who doesn’t want to co-parent and a parent who wants to have the other parent look bad to the child.” Katy acknowledges this evidence, although she refers to it as “scant testimony.” Documentary evidence further indicated that Katy told one of the children that Luc had done “harmful things” to her and would not allow her to contact the child anymore. This evidence was sufficient to support the court’s injunction to prevent discussion of the case around the children. As mentioned, Katy does not raise any substantive legal arguments regarding any of these injunctions.
Conclusion
We sustain Katy’s second issue in part. We modify the trial court’s final decree to dissolve the requirements that Katy inform the State Department and a foreign consulate or embassy of the travel restrictions contained in the final decree and provide those institutions with a copy of the decree, as well as the requirement that she provide proof of receipt back to the trial court. As so modified, we affirm the final decree.
CHRISTOPHER, J., concurring.
. Although not relevant to this appeal, the jury also found no cruel treatment by Luc as Katy had alleged as grounds for divorce. Additionally, the jury rejected a tort claim by Katy for abuse of process. Katy had alleged that Luc abused the legal process by having her committed to a mental health facility against her will.
. Although there may be several ways to parse the court's orders, we adopt Katy's divisions for ease of reference.
. In arguing that a trial court may not grant permanent injunctions in a divorce context if not specifically pleaded for, Katy relies upon cases not involving children. See Falor v. Falor, 840 S.W.2d 683, 687 (Tex.App.-San Antonio 1992, no writ); Ulmer v. Ulmer, 717 S.W.2d 665, 666-67 (Tex.App.-Texarkana 1986, no writ); Morgan v. Morgan, 657 S.W.2d 484, 493-94 (Tex.App.-Houston [1st
.At no point in her briefing does Katy specifically argue that the trial court’s prohibitions on her discussing the case around the children, interfering with Luc’s possession, or hiding or secreting the children were not supported by the pleadings or otherwise tried by consent. See generally Tex.R. Civ. P. 67.
. Katy also argues in her second issue that, alternatively, the evidence was factually insufficient to support the imposition of the injunctions. However, when the best interests of the child are at issue, as here, sufficiency of the evidence is not the correct standard for review. Peck, 172 S.W.3d at 36.
. It is important to note that Katy does not offer any specific argument that the trial court lacked authority to impose these injunctions, assuming there was evidence to support the trial court’s actions. See generally Peck, 172 S.W.3d at 35 (rejecting substantive challenge to trial court’s authority to issue particular permanent injunction in child custody case). Katy's contentions under her second issue are limited to challenging the evidentia-ry support for the court's rulings.
. Similarly, the majority of Luc's arguments in his appellee’s brief also focus on the risk of international abduction; however, Luc has not appealed the trial court’s finding of fact that no credible evidence has been presented indicating a potential risk of international abduction.
. Luc does not point to any evidence in the record, and we have not found any, suggesting that Katy agreed to the travel restrictions.
. Courts frequently consider the following general factors in assessing the best interests of a child when they are applicable: (1) the child's desires, (2) the child's current and future physical and emotional needs, (3) any physical or emotional danger to the child in the present or future, (4) the parental abilities of the individuals involved, (5) the programs available to those individuals to promote the
Concurrence Opinion
concurring.
I join in the court’s opinion addressing Katy Messier’s second and third issues. Although I also agree that the parties’ requests for injunctive relief were properly before the trial court, I would overrule Katy’s first issue for different reasons than those stated by the majority. I instead would hold that most of the challenged injunctions that prohibit Katy from taking some action were placed at issue by Katy’s live pleadings, and the propriety of the remaining injunctions, most of which require Katy to take some action, was tried by consent.
A. Matters Raised by Katy’s Coun-terpetition
About two months after the agreed temporary orders were signed in December 2009, Katy Messier filed her second amended counterpetition, in which she
1. Hiding or secreting the children
In the agreed temporary orders, Katy was enjoined from “hiding or secreting the children from the other party.” The “other party” is Luc. In the final decree of divorce, Katy is enjoined from the identical conduct: “hiding or secreting the children from Luc J. Messier.”
2. Discussing the litigation in the children’s hearing
Under the agreed temporary orders, Katy was enjoined from “discussing the pending litigation or any manner related thereto with the children or in the presence of the children.” In the final decree of divorce, she is enjoined from “discussing this litigation or any matter related thereto with the children or in the presence of the children.” The language in the final decree of divorce has been changed from that of the agreed temporary orders only to reflect that the divorce litigation may no longer be “pending.”
3. Unapproved travel
In the agreed temporary orders, it was ordered that Katy “shall not travel with [the children] outside the United States, without written approval of the other parent.” It additionally was ordered that Katy “shall not travel with the children outside of Texas without approval from the other parent and after providing a detailed itinerary to the other parent.” In the final decree of divorce, Katy is enjoined from “removing the children from the State of Texas or the United States without the specific written permission of Luc Messier.”
The differences between the prohibitions of the two documents are limited to matters of form. Under the terms of the agreed temporary orders, Katy was required to obtain Luc’s approval before traveling with the children between states or between nations, but the form in which such approval had to be given was specified only for the latter. In the final decree of divorce, approval was required in the same form — writing—for both interstate or international travel. Although the relief granted in one document was phrased as an “order” and in the other as an “injunction,” the substance of each ruling is the same. See Peck v. Peck, 172 S.W.3d 26, 36 (Tex.App.-Dallas 2005, pet. denied) (“[Wjhether the trial court entered an injunction ... or a simple order that made the same prohibition within the divorce decree appears to be a distinction without a difference.”) I therefore would conclude that Katy’s pleading asking for this temporary injunction to be made permanent placed this issue before the trial court.
4.Applying for or renewing passports or visas
In the agreed temporary orders, Katy was enjoined from “applying for and or renewing any passport belonging to [either child]”; in the final decree of divorce, she was enjoined from “applying on behalf of the children for new or replacement passports or international travel visas.” “A passport is a document identifying a citizen, in effect requesting foreign powers to
5. Removing the children beyond Harris County, Texas
In the agreed temporary orders, Katy was enjoined from “removing the children beyond Harris County, Texas, acting directly or in concert with others unless specifically authorized herein.” In the final decree of divorce, Katy is enjoined from “interfering in any way with Luc J. Messier’s possession of the children or taking or retaining possession of the children, directly or in concert with other persons, except as permitted by order of the Court.”
Here, the conduct prohibited by the permanent injunction is broader than that prohibited by the agreed temporary orders. “Removing the children beyond Harris County” without authorization is just one way in which Katy could interfere with Luc’s possession of the children. I would hold that this particular means of interfering with Luc’s possession was raised by Katy’s pleading, and the question of whether the trial court should enjoin Katy from using other means to interfere with Luc’s possession of the children was tried by consent as discussed below.
B. Matters Tried by Consent
In Luc’s live pleadings at the time of trial, he asked the trial court “to determine whether there is a risk of international abduction of the children by [Katy] and to take such measures as are necessary to protect the children.” Although Luc did not cite the specific statute in his petition, this is a request for the trial court to make a determination under Texas Family Code section 153.501. This statute, entitled “Necessity of Measures to Prevent International Parental Child Abduction,” provides in pertinent part as follows:
In a suit, if credible evidence is presented to the court indicating a potential risk of the international abduction of a child by a parent of the child, the court, on its own motion or at the request of a party to the suit, shall determine under this section whether it is necessary for the court to take one or more of the measures described by Section 153.503 to protect the child from the risk of abduction by the parent.
Tex. Fam.Code Ann. § 153.501(a) (West 2008). The measures to protect the child from the risk of abduction may include the following:
• prohibiting the parent and anyone acting on the parent’s behalf from removing the child from Texas or the United States;
• requiring the parent to surrender any passport issued in the child’s name, including a passport issued in the name of both the parent and the child;
• prohibiting the parent from applying for a new or replacement passport or international travel visa for the child;
*914 • requiring the parent to provide written notice of the child’s passport and travel restrictions to the U.S. Department of State’s Office of Children’s Issues and the relevant foreign consulate or embassy;
• requiring the parent to provide these same governmental offices with an authenticated copy of the court order detailing the restrictions and documentation of the parent’s agreement to the restrictions;
• requiring the parent to provide proof to the court that these governmental offices received such written notices;
• including in the court’s order a provision identifying the United States as the child’s country of habitual residence; and
• including a statement that a party who violates the order may be subject to civil or criminal penalties or both.2
Id. § 153.503(4), (5), (8)(A), (8)(C).
In a proper case, a trial court could impose restrictions such as those described above even in the absence of pleadings or a motion requesting such relief. See id. § 153.501 (“[I]f credible evidence is presented ..., the court, on its own motion ... shall determine under this section whether it is necessary for the court to take one or more of the measures described ....”) (emphasis added); see also Tex.R. Civ. P. 301 (providing that the court’s judgment must conform to the pleadings and “the nature of the case proved,” and award the prevailing party “all the relief to which he may be entitled either in law or equity”). Here, however, the trial court specifically stated in its written rendition that “the court is unable to find that credible evidence has been presented indicating a potential risk of the international abduction of the children by a parent.”
In general, a trial court must not grant injunctive relief that is not prayed for. Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex.2003). Under the Texas Rules of Civil Procedure, pleadings must give reasonable notice of the claims asserted. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354-55 (Tex.1995). A reviewing court should liberally construe the petition to contain any claims that reasonably may be inferred from the specific language used in the petition and uphold the petition as to those claims, even if an element of a claim is not specifically alleged. See id. In making this determination, however, a reviewing court cannot use a liberal construction of the petition as a license to read into the petition a claim that it does not contain. Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex.App.-Houston [14th Dist.] 2009, no pet.). The petition must give fair and adequate notice of the claims being asserted, and, if the reviewing court cannot reasonably infer that the petition contains a given claim, then the court must conclude the petition does not contain such a claim, even under a liberal construction.
On the other hand, if issues not raised by the pleadings are tried by express or implied consent of the parties, these issues will be treated as if they had been raised by the pleadings. Tex.R. Civ. P. 67; Baltzer, 240 S.W.3d at 476. Based on my review of this record, I would hold that Katy’s counsel consented to the trial court’s determination of appropriate permanent injunctive relief.
On the first day of trial, even before voir dire, the trial court and parties’ attorneys discussed Luc’s proposed jury charge concerning international kidnapping. Luc’s counsel argued that the trial court should ask the jury to determine whether there is a risk of international abduction of a child by a parent of the child. Katy’s counsel argued,
When you get into rights and duties and injunctions and restraints and so on and so forth, ... those are Judge functions and not jury functions.... At most this is subsumed in the questions of the jury deciding whether to appoint him or her as sole managing conservator. It is also subsumed in the consideration of whether or not to restrict domicile or geographic location.
The trial court sustained the objection to the submission of a jury question concerning the risk of international abduction. Thus, even before any evidence was heard, Katy’s counsel took the position that if the jury found that Luc should be appointed sole managing conservator, then the trial court would determine whether injunctions and restraints, if any, were appropriate.
In all other respects, I agree with the majority’s analysis.
. In comparing the content of the two documents, I have standardized the capitalization and punctuation.
. One such criminal penalty would be conviction of the offense of interference with child custody. See Tex. Penal Code Ann. § 25.03 (West Supp.2012). That statute provides in relevant part as follows:
(a) A person commits an offense if the person takes or retains a child younger than 18 years of age:
(1) when the person knows that the person's taking or retention violates the express terms of a judgment or order, including a temporary order, of a court disposing of the child’s custody;
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(3) outside of the United States with the intent to deprive a person entitled to possession of or access to the child of that possession or access and without the permission of that person.
Id. In the final decree of divorce, Katy was permanently enjoined from interfering with Luc’s possession of the children.
. The jury was asked to determine whether the children's residence should be restricted to a specific geographic location only if it first found that (1) both parents should be appointed joint managing conservators, and (2) one parent should have the exclusive right to designate the children’s primary residence. Because the jury found that Luc should be appointed sole managing conservator, it did not reach the question of whether the geographic location of the children’s primary residence should be restricted.