In re S.M.V.

• Decision Date: 10 June 2009
• Docket Number: No. 05-07-01733-CV.,05-07-01733-CV.
• Citation: 287 S.W.3d 435
• Parties: In the Interest of S.M.V. and A.R.V.,<SMALL><SUP>1</SUP></SMALL> Minor Children.
• Court: Texas Court of Appeals

287 S.W.3d 435

In the Interest of S.M.V. and A.R.V.,¹ Minor Children.

No. 05-07-01733-CV.

Court of Appeals of Texas, Dallas.

June 10, 2009.

Judith A. Grantham, Carrollton, TX, for Appellant.

Graciela Olvera, Antonio Olvera, Jr. & Associates, Dallas, TX, for Appellee.

Before Justices FITZGERALD, LANG, and SMITH.²

OPINION

Opinion by Justice LANG.

Following a jury trial on limited issues, appellant Fidel Valdez ("Valdez") appeals the trial court's order adjudicating parentage in a suit affecting the parent-child relationship. In three issues, Valdez contends the trial court erred when it (1) ordered the name of minor child S.M. Valdez to be changed to S.M. Vo; (2) allowed appellee Crystal Valdez ("Mother") to proceed with her case in chief and put on evidence with no pleading on file in this case; (3) "took it upon itself to order the clerk to file a pleading from another cause on behalf of [Mother] and the pleading ordered to be filed on behalf of [Mother] was a superceded pleading"; and (4) refused to grant a new trial on newly discovered evidence that appellee Alexander Vo ("Vo") is now incarcerated on drug charges pending at the time of trial.³ We decide against Valdez on his three issues. The trial court's order is affirmed.

I. FACTUAL AND PROCEDURAL BACKGROUND

Valdez and Mother were married on June 17, 2003, and Valdez filed for divorce from Mother on April 8, 2005. The divorce proceeding was assigned trial court cause number 05-06363-V. In the divorce proceeding, Mother alleged Valdez was not the biological father of S.M.V., whom Mother had given birth to on October 22, 2002. Vo filed a petition in intervention in the divorce proceeding alleging S.M.V. was his biological child.

In an August 24, 2006 "Order Severing Suit Affecting the Parent-Child Relationship," the trial court found S.M.V. was not the biological child of Valdez and was the biological child of Vo. In addition, the trial court's order provided in relevant part

"IT IS THEREFORE ORDERED that the suit affecting the children, [S.M.V. and A.R.V.⁴], is severed from this suit and shall be filed and assigned a new cause number in [this court]."

...

IT IS FURTHER ORDERED that the style of the new cause in suit affecting the minor children, [S.M.V. and A.R.V.], shall be identified as "IN THE INTEREST OF [S.M.V. and A.R.V.], MINOR CHILDREN."

IT IS FURTHER ORDERED that all the parties to this cause, Fidel Valdez, Crystal Valdez and Alexander Vo waive the necessity of issuance and service of process in the severed cause and shall promptly enter his or her appearance therein.

(emphasis original).

On November 10, 2006, Vo filed an "Original Counterpetition in Suit Affecting the Parent-Child Relationship" in this case, the severed suit (the "SAPCR"). Vo's pleading bore the trial court cause number assigned to this case, 06-16497-V. Vo requested, in part, orders for conservatorship, visitation, and support of S.M.V. Valdez filed an "Original Counter-Petition in Suit Affecting Parent-Child Relationship" in this case on November 29, 2006. In that counter-petition, which bore cause number 06-16497-V, Valdez requested, inter alia, that he be appointed sole managing conservator of S.M.V. and that Mother and Vo be appointed possessory conservators and ordered to make payments for the support of S.M.V.

The divorce proceeding and the SAPCR were tried concurrently before a jury in May 2007.⁵ Prior to the calling of witnesses or presentation of testimony, and outside the presence of the jury, counsel for Valdez requested the trial court "strike out all of [Mother's] pleadings" regarding S.M.V. in Mother's third amended counter-petition, her live pleading in the divorce proceeding, because such pleadings were filed in the wrong cause. In addition, counsel for Valdez objected to any relief for Mother regarding S.M.V. on the basis that Mother had not filed any pleadings in the SAPCR. Counsel for Valdez argued Mother's "only live pleadings are in a Cause Number that does not deal with [S.M.V.]." The trial judge overruled the objection of Valdez's counsel. Further, the trial judge stated she was "not inclined to strike pleadings and have this trial happen by ambush and be won on a technicality because the wrong Cause Number is at the top of the pleadings."

After receiving the jury's verdict on limited issues, the trial court made a July 30, 2007 rendition. On September 10, 2007, Mother filed a motion requesting the trial court sign a proposed order adjudicating parentage. In addition, on that same date, Mother filed a "Motion to Modify, Correct, or Reform Judgment," in which she asserted in pertinent part

The court rendered orders finding that [Vo] is the biological father of the two minor children subject of this suit. It was improper for the Court to enter orders without providing for a name change for the child [S.M.] Valdez. Respondent requests that the court correct and/or reform is [sic] judgment and grant a name change for the child to [S.M.] Vo.

Valdez filed objections to the proposed order adjudicating parentage on September 20, 2007, including an objection to the provisions changing the name of S.M.V. On that same date, a hearing was held and the trial court reformed the judgment and granted the name change regarding S.M.V. A September 20, 2007 order adjudicating parentage was signed by the trial court. That order, in relevant part, (1) appointed Mother, Valdez, and Vo joint managing conservators of S.M.V. and (2) provided "the child formerly known as [S.M.] Valdez shall hereafter be named [S.M.] Vo."

A timely request for findings of fact and conclusions of law was filed by Valdez on October 9, 2007. On October 18, 2007, Valdez filed a timely motion for new trial. Valdez asserted in relevant part in his motion for new trial that subsequent to the trial, Vo pleaded guilty to a first degree felony charge involving the possession of methamphetamine and was sentenced to five years' confinement. According to Valdez, such evidence constituted "newly discovered evidence" that, if available at the time of trial, "would have likely resulted in a different verdict on the issue of conservatorship, primary residence and name change" relating to S.M.V. Further, Valdez asserted the trial court erred in changing the name of S.M.V. because (1) there are no pleadings on file to change the name of S.M.V. and (2) no evidence was submitted before the jury or the court to support the request for such a name change. In addition, Valdez contended the trial court erred in admitting evidence by Mother over his objection when Mother had no pleadings on file to support the evidence submitted.

Valdez filed a notice of past due findings of fact and conclusions of law on November 8, 2007. On November 19, 2007, the trial court made findings of fact and conclusions of law that included the following findings of fact:

6. It is in the best interest of the child [S.M.] Valdez that her name be changed to [S.M.] Vo.

....

10. That [Valdez's] request that a default judgment be granted against [Mother] and [Vo] for their failure to file pleadings with the above cause number should be denied because this paternity case was severed from cause number DF05-06363-V, both [Mother] and [Vo] have pleadings in that companion divorce case, this paternity case is being tried in conjunction with the divorce case DF05-06363-V, all three parties have appeared and participated in proceedings in both cases, and it is not in the children's best interest that default judgment against [Mother] be granted. [Valdez] received notice of all pleadings relating to the child [S.M.V.].

In its conclusions of law, the trial court concluded in relevant part, "[S.M.] Valdez's name shall be changed to [S.M.] Vo and her birth certificate shall be amended to state that Alexander Vo is her biological father."

On November 29, 2007, the trial court signed a "Court Order of Duplicate Filing," which bore the cause numbers of both the SAPCR and the divorce proceeding and stated in relevant part

Be it remembered that on November 29, 2007, the Court on the Court's Motion and after reviewing the pleadings on file herein is of the opinion that certain pleadings and orders concerning minor child [S.M.V.] should be duplicate filed in both of the cause numbers as listed above for purposes of clarity of the Court's related case file records.

IT IS THEREFORE ORDERED that the District Clerk shall copy the following pleadings (attached hereto as exhibit A) from Cause No. DF05-6363-V and place such copies in Cause No. DF06-16497-V:

1. 1st Amended Counter-Petition for Divorce filed by [Mother], dated August 2, 2006.

2. Order severing Suit Affecting Parent Child Relationship, dated August 24, 2006.

(emphasis original). On that same date, Valdez filed a timely request for additional findings of fact and conclusions of law in which he requested the trial court specify the basis for the limitation of his rights and duties as a joint managing conservator of S.M.V. Valdez's motion for new trial was denied after a hearing on December 3, 2007. This appeal timely followed.

II. PLEADINGS

We begin with Valdez's second issue, in which he asserts the trial court erred when it (1) allowed Mother to proceed with her case in chief and put on evidence with no pleading on file in this case and (2) "took it upon itself to order the clerk to file a pleading from another cause on behalf of [Mother] and the pleading ordered to be filed on behalf of [Mother] was a superceded pleading."

A. Applicable Law and Standard or Review

"`A court's jurisdiction to render judgment is invoked by pleadings, and a judgment unsupported by pleadings is void.'" In re C.C.J., 244 S.W.3d 911, 919 (Tex.App.-Dallas 2008, no pet.) (quoting Ex parte Fleming, 532 S.W.2d 122, 123 (Tex. Civ.App.-Dallas 1975, no writ)); see also Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979) (plaintiff may not sustain favorable judgment on unpleaded cause of action in the...