in the Matter of the Marriage of Alice Lamirault and Derek Thomas Lamirault and in the Interest of Michelle Alicia Lamirault, Michael Steven Lamirault and Jaquileen Monique Lamirault, Children

• Court: Court of Appeals of Texas
• Decided: October 3, 2001
• Docket: 07-01-00133-CV
• Status: Published

Opinion

NO. 07-01-0133-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

OCTOBER 3, 2001

______________________________

IN THE MATTER OF THE MARRIAGE OF ALICE LAMIRAULT AND DEREK THOMAS LAMIRAULT AND IN THE INTEREST OF MICHELLE ALICIA LAMIRAULT, MICHAEL STEVEN LAMIRAULT AND JAQUILEEN MONIQUE LAMIRAULT, CHILDREN

_________________________________

FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2000-510,854; HONORABLE BRADLEY UNDERWOOD, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Appellant Derek Thomas Lamirault (Derek) presents three issues which, he

contends, demonstrate the trial court reversibly erred in rendering a default judgment

against him in favor of appellee Alice Lamirault (Alice). In those issues, he argues (1) the

default judgment was in error because there was no evidence he made a general

appearance in the case, (2) there was insufficient evidence he had notice of the final trial

setting, and (3) the trial court erred in awarding additional and retroactive child support for the couple’s minor child because that relief was neither requested nor supported by the

law and the evidence. Disagreeing that reversible error is shown, we affirm the judgment

of the trial court.

A brief factual recitation of the facts will aid in the discussion of this appeal. Derek

and Alice had been married for about ten years when Alice filed the divorce action

underlying this appeal. At the time she filed the action, the couple had been separated for

a year. Their three children were all born prior to the marriage. In the divorce petition,

Alice sought the appointment of joint managing conservators, a division of the couple’s

property, and an order requiring Derek to pay child support, health insurance premiums

for the children, and the children’s uninsured medical expenses while the case was

pending. In response, Derek filed a handwritten letter notifying the trial court that a divorce

action was pending in a California Superior Court.

When the trial court called the case for trial, Derek did not appear and the court

entered the judgment about which Derek makes complaint. In its judgment, the court

ordered Derek to pay $740.15 a month as child support, an additional $493.43 a month

in support for the disabled child, and $10,386.12 in retroactive child support.

In response to Derek’s first issue contention that there is no evidence in the record

that he was served with citation in the divorce action, Alice responds that by filing a

responsive pleading, he waived the service of process. She also contends he was duly

served with process.

2 Rule 106(a) of the Rules of Civil Procedure provides:

(a) Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by

(1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed thereon with a copy of the petition attached thereto, or

(2) mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto.

Tex. R. Civ. P. 106(a). Rule 103 specifically authorizes sheriffs and constables to serve

citations. Tex. R. Civ. P. 103. The record reveals that Derek was served on August 25,

2000, at 801 W. Randol Mill, Arlington, Texas, by a Tarrant County constable. Derek’s first

issue is overruled.

The thrust of Derek’s second issue is that there is insufficient evidence that he had

notice of the final trial setting. It is important to note that Derek does not complain that he

actually had no knowledge of the proceedings; rather, his complaint is that there is

insufficient evidence in the record to show that notice was given. The law presumes that

a trial court has given proper notice prior to hearing a case. Osborn v. Osborn, 961

S.W.2d 408, 411 (Tex.App.–Houston [1st Dist.] 1997, writ denied). A recitation in the

judgment that due notice was given is some, although not conclusive, evidence that proper

notice was given. Id. However, the presumption of proper notice may be rebutted by other

evidence in the record. Id.

3 In the record there is a copy of the trial court’s scheduling order signed on

November 3, 2000, which contains a notation, inter alia, that the trial on the merits was set

for February 14, 2001, at 1:15 p.m. It recites that a copy of the order was sent to Derek

at an Arlington address. The record also reflects that prior to commencing the hearing, the

trial judge inquired if the notice had been sent to Derek. This record, together with the fact

that the trial court proceeded to trial and recited in its judgment that Derek had been “duly

and properly cited,” is sufficient to support the presumption of proper service. To

overcome the presumption, Derek must affirmatively show a lack of notice. See Hanners

v. State Bar of Texas, 860 S.W.2d 903, 908 (Tex.App.–Dallas 1993, no writ). The

presumption is not overcome by mere allegations, not supported by affidavits or other

competent evidence, that proper notice was not received. Id. Derek presented no

evidence to rebut the presumption. By failing to do so, he did not meet his burden.

Derek’s second issue is overruled.

In his third and final issue, Derek asserts the award of additional and retroactive

child support was in error because it “was not requested in the pleadings nor supported

by the law or evidence.” It is axiomatic that a judgment must be based upon the pleadings.

Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). The key to determining whether

a cause has been properly pled is whether there are sufficient allegations to give fair

notice of the claim. Id. at 683. A prayer for general relief will support any relief granted

that was raised by the evidence and pleadings consistent with allegations in the petition.

Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex.App.–Houston [1st Dist.] 1991, no writ) (on

4 remand). In setting child support payments, a trial court is accorded broad discretion and,

absent a clear abuse of discretion, the trial court’s order will not be disturbed on appeal.

See DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex.App.–Tyler 1997, no pet.), and In the

Interest of P.J.H., 25 S.W.3d 402, 405 (Tex.App.–Fort Worth 2000, no pet.). In deciding

whether a trial court has abused its discretion, we must first determine whether the court

acted without reference to any guiding rules or principles, in other words, arbitrarily or

unreasonably. DuBois, 956 S.W.2d at 610. In making that decision, we must view the

evidence in a light most favorable to the court’s action and indulge every legal presumption

in favor of the judgment. Id. If some probative and substantive evidence supports the

judgment, the trial court did not abuse its discretion. Id.

We do not agree with Derek’s contention that the additional support for the minor

disabled child and the retroactive child support orders were improper because that relief

was not specifically requested and therefore he had no notice of either claim. The trial

court acted within the guidelines set out in the Family Code. With regard to the additional

support of the disabled minor, Texas law generally allows a court to order periodic child

support payments in an amount other than those established by the guideline if the

evidence rebuts the presumption that their application is in the best interest of the child

and justifies a departure from the guidelines. Tex. Fam. Code Ann. § 154.123 (Vernon

1996). One of the enumerated factors the trial court may consider is any special or

extraordinary educational, health care, or other expenses of the parties or of the child. Id.

There was evidence here that the child was mentally retarded and requires special care.

5 The trial court did not abuse its discretion in awarding additional support for the disabled

minor child.

Likewise, the trial court did not abuse its discretion in awarding the retroactive child

support. The Family Code provides that when determining retroactive child support, the

court shall consider whether the obligor has provided actual support or other necessities

before the filing of the action. Tex. Fam. Code Ann. § 154.131(b)(4) (Vernon 1996). At

trial, Alice presented evidence that Derek had failed to provide support for the seven

months preceding trial. Under this circumstance, the trial court did not abuse its discretion

in awarding retroactive child support. Derek’s third issue is overruled.

In sum, all of Derek’s issues are overruled and the judgment of the trial court is

affirmed.

John T. Boyd Chief Justice

Johnson, J., concurs.

Do not publish.