Carreon v. Texas St. Dept. of Public Welfare, 15490

• Decision Date: 19 May 1976
• Docket Number: No. 15490,15490
• Parties: Mary R. CARREON, Appellant, v. TEXAS STATE DEPARTMENT OF PUBLIC WELFARE, Appellee.
• Court: Texas Court of Appeals

Page 345

537 S.W.2d 345

Mary R. CARREON, Appellant, v. TEXAS STATE DEPARTMENT OF PUBLIC WELFARE, Appellee.

No. 15490.

Court of Civil Appeals of Texas,

San Antonio.

May 19, 1976.

Brendan E. Gill, San Antonio, for appellant.

John L. Hill, Atty. Gen., David M. Kendall, Frank Cooksey, Asst. Attys. Gen., Austin, for appellee.

KLINGEMAN, Justice.

This is an appeal from a judgment rendered against appellant, Mary R. Carreon, ordering her to pay child support payments to herself, and also from a portion of the same judgment ordering that all child support payments made by appellant's husband be made to the appellee, the Texas State Department of Public Welfare. Such judgment also ordered appellant's husband, Robert M. Carreon, to pay child support in the amount of $10 per child per week or a total of $20 per week for the support of the two minor children of the marriage of Robert M. Carreon and Mary R. Carreon. Robert M. Carreon has not appealed from this order.

Appellant and her husband, Robert M. Carreon, are separated. There are two children of such marriage, Leticia, born July 4, 1972, and Alex, born August 20, 1973, who live with appellant. The Texas State Department of Public Welfare provides a direct cash grant to appellant and her two children of $116.25 per month. This suit was instituted by the Texas State Department of Public Welfare, in which it asserts: (a) for sometime the Carreon's have been separated and respondent, Robert M. Carreon, has failed and refused to provide any support or maintenance for his wife and the minor children; (b) respondent, Robert M. Carreon, is gainfully employed and financially able to contribute support to the minor children; and (c) Mary R. Carreon is unemployed and without sufficient funds to provide reasonable and necessary support. Appellee prayed the court that Robert M. Carreon be ordered to appear and show cause why he should not be ordered to pay reasonable support payments, and that any payments ordered to be made by Robert M. Carreon be paid to the Texas State Department of Public Welfare to the extent that appellee has supplied the needs of the children.

A show cause order was issued to Robert M. Carreon, and another show cause order was issued to Mary R. Carreon commanding her to appear in court to show cause why all support payments received under the order should not be paid to the Texas State Department of Public Welfare as alleged in the Department's petition.

The court's judgment here under attack finds that Robert M. Carreon has sufficient means to contribute to the support and maintenance of the minor children, and that it would be to the best interests of the children that Mary R. Carreon contribute towards the support of such minor children to make up any deficiencies in child support. Robert M. Carreon is ordered to pay support in the amount of $10 per week per child or a total of $20 per week, which payments are to be made to the Texas State Department of Public Welfare. Mary R. Carreon is ordered to pay support in the amount of $5 per week per child or a total of $10 per week to be paid to herself to make up any deficiencies in child support. ¹

By two points of error appellant complains that the trial court erred (a) in granting a judgment providing for relief that was never sought by the petitioner; (b) in granting a judgment which ordered appellant to pay child support to herself because the court had no jurisdiction over appellant to order any such order.

It is undisputed that there is nothing in the pleadings asking that appellant be ordered to make any child support payments. The only relief sought by appellee is (a) that the father, Robert M. Carreon, be ordered to make child support payments for the two minor children; (b) that all payments ordered to be paid by the father be paid to the Texas State Department of Public Welfare to the extent that the Department has supplied the needs of the children and for so long as the Department continues to provide support for them.

The show cause order issued to appellant does not summon her to show cause why she should not be ordered to pay child support payments, but only to show cause why the child support payments ordered to be paid by Robert M. Carreon should not be paid to appellee.

Appellant contends that: (a) appellee's pleadings are not sufficient to support a judgment ordering her to pay child support; (b) such judgment violates due process, as neither the pleadings nor the show cause order issued to her gave her any notice whatsoever regarding child support payments to be made by her; (c) the court's jurisdiction to order appellant to pay child support payments was never invoked.

We have concluded that any of the above grounds are sufficient to support a reversal of the trial court's order insofar as it pertains to child support payments to be made by Mary R. Carreon.

Clearly there was absence of due process. A fundamental element of due process is adequate and reasonable notice appropriate for the nature of the hearing. Lowe v. City of Arlington, 453 S.W.2d 379 (Tex.Civ.App.--Ft. Worth 1970, writ ref'd n.r.e.); Goodman v. Goodman, 236 S.W.2d 641 (Tex.Civ.App.--San Antonio 1951, no writ). In Goodman v. Goodman, supra, it was urged in a child custody case that the court was not bound by the usual 'technical' rules of practice and procedure where the best interests of a child are concerned. Judge Pope, then on this court, said:

We recognize that respectable authority has made broad utterances that a determination of the future welfare of a child should be unhampered by narrow technical rules. (Citations omitted). While we are in accord with the liberal interpretation of rules relating to children, we do not understand that any of these authorities hold that the due process clauses of the State of Texas and the United States are mere 'technicalities' which are to be respected when property is at issue, but suspended when a child is the subject of controversy.

Moreover, we do not think the pleadings are sufficient to support the judgment ordering appellant to make child support payments. Appellee does not seek such relief in its petition, and there is nothing in appellee's petition or the show cause order served on appellant that even pertains to child support payments to be made by appellant. The office of a pleading is to define the issues to be tried, and the purpose of the pleadings is to advise the court and the adverse parties what contentions of the pleader will be heard on the trial of the case. A pleading must--give fair and adequate notice of facts which the pleader relies upon in order that any adverse party may properly prepare his defense thereto. Generally, a trial court cannot grant relief that is without pleadings to support it, and a judgment which is not supported by the pleadings is not warranted. Oil Field Haulers Ass'n v. Railroad Commission, 381 S.W.2d 183 (Tex.1964); City of Ft. Worth v. Gause, 129 Tex. 25, 101 S.W.2d 221 (1937); Edwards Feed Mill v. Johnson, 302 S.W.2d 151 (Tex.Civ.App.--San Antonio 1957), Rev'd on other grounds, 158 Tex. 313, 311 S.W.2d 232 (1958); Jones v. Jones, 301 S.W.2d 310 (Tex.Civ.App.--Texarkana 1957, writ ref'd n.r.e.); Forman v. Barron, 120 S.W.2d 827 (Tex.Civ.App.--El Paso 1938, writ ref'd).

We recognize that courts have broad authority in matters involving child custody or child support, but a question here involved is whether appellee invoked the jurisdiction of the court to order appellant to make child support payments by pleadings in which the only relief sought is that the father be ordered to make child support payments, and that such payments be paid directly to the Texas State Department of Public Welfare, appellee herein. Appellant filed no pleadings whatsoever.

Under the record before us we do not believe the jurisdiction of the court was invoked to order appellee to make child support payments when neither appellee nor appellant sought any such determination. See Rodriguez v. Vela, 488 S.W.2d 872 (Tex.Civ.App.--San Antonio 1972, no writ); Goodman v. Goodman, supra; Dawson v. Woodley, 319 S.W.2d 394 (Tex.Civ.App.--Ft. Worth 1958, writ ref'd n.r.e.).

Appellant's first two points of error are sustained.

We next consider appellant's point of error that the trial court erred in ordering that the child support payments, which are to be paid by appellant's husband, are to be paid to the Texas State Department of Public Welfare. As hereinbefore noted, it is apparent from appellant's brief that her real contention in this regard is that the trial court erred in failing to designate what portion of the child support payment collected by the Texas State Department of Public Welfare should be turned over to her, and in failing to provide that no reduction should be made in the family assistance.

Such point of error is primarily based on a portion of Article 695c, Sec. 18--B(2), Tex.Rev.Civ.Stat.Ann., which provided:

The State Department may not withhold an assistance payment on behalf of a dependent child because of a court order for support of such child unless the amount available to said child under such court order is sufficient to supply the needs of the...