in the Interest of M.B.B.

• Court: Court of Appeals of Texas
• Decided: April 6, 2011
• Docket: 04-10-00541-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-10-00541-CV

IN THE INTEREST OF M.B.B-Y.

From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 98-CI-16712 Honorable Janet P. Littlejohn, Judge Presiding 1

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Marialyn Barnard, Justice

Delivered and Filed: April 6, 2011

REVERSED AND REMANDED

Bassam Bani-Yassin appeals the trial court’s order modifying prior orders governing

Bassam’s visitation with his daughter, M.B.B-Y. Although Bassam lists two separate points of

error in his brief, the crux of his complaint is that the trial court’s order was not supported by

proper pleadings. Because we conclude that the trial court erred in granting a modification that

was not supported by proper pleadings, we reverse the trial court’s order and remand the cause to

the trial court for further proceedings.

1 The Honorable Antonia Arteaga presided over the hearing and rendered the ruling contained in the order being appealed. The Honorable Janet P. Littlejohn ministerially signed the order. 04-10-00541-CV

BACKGROUND

Bassam and Catherine Sue Bani-Yassin were divorced in 2001. The divorce decree

contained provisions governing Bassam’s visitation with M.B.B-Y. The trial court subsequently

signed Extended Temporary Orders based on a hearing held on December 3, 2003. The

Extended Temporary Orders contain provisions governing Bassam’s visitation with M.B.B-Y.

On July 8, 2004, the trial court signed Extended Temporary Orders Nunc Pro Tunc.

On April 26, 2005, Catherine filed a Second Motion to Modify Temporary Orders

requesting a modification of the December 3, 2003 orders. The fiat shows the motion was set for

a hearing on May 3, 2005. On May 13, 2005, Bassam filed a Motion to Modify Temporary

Orders. The fiat shows the motion was set for a hearing on May 19, 2005.

On March 24, 2006, Catherine filed a Motion for Additional Temporary Orders. The fiat

shows the motion was set for a hearing on March 31, 2006. On March 27, 2006, Bassam filed a

Motion for Additional Temporary Orders. The fiat shows the motion was set for a hearing on

March 31, 2006. The clerk’s record also contains an Order to Appear directing Catherine to

appear and respond to a Motion for Enforcement on March 31, 2006.

On May 13, 2010, Bassam filed a Motion for Enforcement and Order to Appear, seeking

to enforce the prior orders governing his visitation with M.B.B-Y. The clerk’s record contains

an Order to Appear directing Catherine to appear and respond to a Motion for Enforcement on

May 28, 2010. On June 17, 2010, the trial court signed an order which states that it was

judicially rendered on May 28, 2010; however, the introductory paragraph of the order states that

a hearing on Bassam’s “Motion for Enforcement and Order to Appeal” was held on May 26,

2010. The order also states that Catherine “filed a responsive Motion with a prayer for general

relief.” A record of the hearing was waived by agreement of the parties with the consent of the

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trial court. The order states that two prior orders governed Bassam’s visitation with M.B.B-Y.,

namely: (1) “The Decree of Divorce between the parties rendered on February 21, 2001;” and (2)

“Extended Temporary Orders rendered on December 3, 2003.” The order contains the following

finding: “The Court on it’s [sic] own motion and pursuant to it’s [sic] exclusive continuing

jurisdiction finds that there has been a material and substantial change in the circumstances and

conditions of the parties and the child such that prior orders herein should be modified and that

such would be in the best interest of the child.” The order sets aside the prior orders governing

access and visitation and restricts Bassam’s visitation to one lunch or dinner with M.B.B-Y. per

month subject to various conditions.

DISCUSSION

“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]). 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(a)(10) (West 2008); see also In re Russell, 321 S.W.3d at 855. Without proper

pleadings and evidence, a trial court exceeds its authority if it modifies or reforms previous

orders affecting the custody of a child. See 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.); Ex parte Karr, 663 S.W.2d 534, 539 (Tex. App.—Amarillo 1983,

orig. proceeding).

In her brief, Catherine argues that the pleadings filed in 2006 were pending before the

court at the May 2010 hearing. As previously noted, however, the fiats relating to those

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pleadings show that a hearing was held on those pleadings on March 31, 2006. Moreover, the

documents in the clerk’s record pertaining to the May 2010 hearing support Bassam’s contention

that only his motion for enforcement was pending before the trial court. Catherine’s argument

also is contradicted by the language of the order itself which states that Catherine filed a

“responsive Motion with a prayer for general relief.” The clerk’s record, however, contains no

document responsive to Bassam’s motion for enforcement. Catherine’s argument is further

contradicted by the language of the order stating that the court based the modification on “it’s

[sic] own motion and pursuant to it’s [sic] exclusive continuing jurisdiction,” not the 2006

pleadings. The trial court did not have the authority, however, to sua sponte modify the prior

orders. Instead, any modification of the prior orders was required to be supported by proper

pleadings. See In re Parks, 264 S.W.3d at 62; In re A.M., 974 S.W.2d at 861-62; Ex parte Karr,

663 S.W.2d at 539; see also In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no

pet.) (holding trial court abused its discretion in issuing order on sua sponte basis in family law

matter). Finally, “trial by consent is a doctrine that is only intended to cover the exceptional case

in which it clearly appears from the record as a whole that the parties tried the unpled issue.” In

re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.). “It is not intended to

establish a general rule of practice and should be applied with care, and in no event in a doubtful

situation.” Id.; see also In re A.M., 974 S.W.2d at 862-63 (refusing to apply trial-by-consent

principles in reviewing order modifying custody). In this case, the hearing was never recorded,

so no record exists to support an argument that the modification issue was tried by consent.

Moreover, the order itself states the trial court based the modification “on it’s [sic] own motion,”

not on trial by consent.

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CONCLUSION

Because the trial court’s order was not supported by proper pleadings, the order is

reversed, and the cause is remanded to the trial court for further proceedings.

Catherine Stone, Justice

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