King v. Lyons

• Citation: 457 S.W.3d 122
• Decision Date: 30 December 2014
• Docket Number: NO. 01–13–01089–CV,01–13–01089–CV
• Parties: Carolee A. King, Appellant/Cross–Appellee v. Donald Joseph Lyons, Appellee/Cross–Appellant
• Court: Court of Appeals of Texas

457 S.W.3d 122

Carolee A. King, Appellant/Cross–Appellee

v.Donald Joseph Lyons, Appellee/Cross–Appellant

NO. 01–13–01089–CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 30, 2014

Richard L. Flowers, Jr., Houston, TX, for Appellant.

Emily A. Fisher, Galveston, TX, for Appellee.

Panel consists of Justices Jennings, Sharp, and Massengale.

OPINION

Michael Massengale, Justice

This case presents cross-appeals from an order granting mutual permanent injunctions after both parties filed petitions to modify the parent-child relationship of their only daughter, A.X.L., a minor child. The trial court enjoined each parent from coming within 200 yards of the other parent's residence or place of employment, with certain exceptions. The parents make similar, mirror-image complaints, each arguing that the other parent failed to plead for such an injunction, that the issue was not tried by consent, and that the evidence was legally and factually insufficient to support the injunction.

Neither parent's pleadings requested the permanent injunctions at issue, and the record does not reflect that this issue was tried by consent. Accordingly, we reverse the trial court's order in part, and we vacate the mutual permanent injunctions requiring the parents to stay more than 200 yards away from each other's residence and place of employment.

Background

A.X.L. was born in 2005 and adopted a year later by Carolee King and Donald Lyons. In 2007, King and Lyons divorced and were appointed joint managing conservators of their daughter. Two years later, the parties agreed to a modification of the possession order to allow King to move to Galveston with A.X.L. Lyons later moved to Galveston to be closer to his child.

When A.X.L. was approximately eight years old, King filed a petition to modify the parent-child relationship. King sought an order requiring Lyons to pick up and return A.X.L. at the curb of her residence, as opposed to approaching the door. Lyons opposed that request and filed a counter-petition, seeking an injunction requiring that the parents communicate with each other only by way of a website designed to facilitate shared child custody. Neither parent requested a temporary protective order or sought an injunction to keep the other away from his or her residence or place of employment.

The court heard evidence over two days. The record shows the parents' history of bickering, incivility, and inability to cooperate in both mundane and extraordinary parenting activities. King testified about Lyons's frequent and repetitious communication by text message, telephone, and email, which she characterized as “confrontational,” “angry,” “demanding,” and “argumentative.”

She testified that she did not respond to each communication; rather she replied only when she could discern a question.

Each parent testified to feeling threatened by the other. King said she felt threatened by Lyons's tone of voice, demeanor, and repetitious communications. She said Lyons once told her he was watching her, and he accused her of having an inappropriate relationship with her boss. Lyons denied threatening, stalking, or engaging a private investigator to follow King. He testified that he felt threatened by the presence of law enforcement and others he saw or thought he saw when dropping off A.X.L. after his periods of possession. King denied having law enforcement present when Lyons returned A.X.L., except for a building security guard when she lived in a high-rise condominium.

King works for the University of Texas Medical Branch (UTMB) in Galveston; Lyons works from his Galveston home as a health-care consultant and lectures at Rice University. No testimony or evidence was introduced that related to either parent's behavior in regard to the other parent's place of employment. King testified that she had never been to Lyons's residence.

The testimony regarding Lyons approaching King's residence was limited. King testified that she was “uncomfortable” having Lyons at her front door because he is “sometimes ... confrontational.” She described one verbal confrontation at the child's school and another incident four or five years before trial when Lyons threw A.X.L.'s overnight bag on the ground and was reluctant to relinquish the child after his period of possession.

King testified that the curb was “no more than 60 feet” from her front door, she did not want Lyons to approach her house to assist A.X.L. in carrying her belongings, and she did not wish to exchange the child in a public place because “it's unnecessarily complicated” and would not “serve any purpose.”

King also testified that Lyons sometimes came to her home unexpectedly, for example to return A.X.L.'s possessions when only the nanny was present. King was uncomfortable with that, but her 71–year–old nanny, Jo Ann Mulee, was not “because he never came in” and “he stood at the door.” Mulee testified that Lyons had not forced his way into the home when dropping off A.X.L. and that he respected the boundary of the door. She was not afraid that Lyons would hurt her physically, and she testified that she greets him warmly when she sees him in public, even hugging him at the first hearing in this case.

King conceded that in the six years prior to trial, she had not seen Lyons sitting outside her home or watching her house, he had not threatened to hurt her, and there had been no physical altercations. In opposing King's request for curbside drop-off of the child, Lyons testified that they had exchanged A.X.L. without altercations for seven years.

During trial, King's attorney requested a trial amendment, asking the court to order Lyons “to stay away” from King's house or to ensure “that the order doesn't require him to be there.” Lyons objected. The court did not rule on the requested trial amendment or the objection, but the trial judge commented, “I think it's kind of been tried by consent almost.”

At the close of testimony, the judge admonished the parents about the harm their bickering and incivility would cause their daughter and stated, “[Y]ou all really need to do some soul searching on how you're dealing with each other. And I'm going to do my best to try to minimize that.”

The trial court's final order required the parties to communicate with each other only by means of a website, to exchange A.X.L. at the curb of King's house, and to comply with mutual permanent injunctions prohibiting each parent from going with 200 yards of the other parent's residence and place of employment, with certain exceptions such as exchanging possession of the child and traveling on public streets. Both parents challenged the mutual permanent injunctions in separate motions for new trial, which were denied. In its findings of fact and conclusions of law, the trial court found that the mutual permanent injunctions were “necessary due to the high level of animosity between the parties” and were “in the best interest of the child.” The court also concluded that the mutual injunctions “are necessary as set forth under the terms, conditions, and exceptions in the order.” Both King and Lyons appealed.

Analysis

“A court with continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or possession of and access to a child.” Tex. Fam.Code § 156.001. The court may modify such an order if doing so “would be in the best interest of the child” and upon a showing of a material and substantial change in circumstances. Id. § 156.101. Because the “trial court is given wide latitude in determining the best interest of a minor child,” we review a modification order under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) ; see O'Connor v. O'Connor, 245 S.W.3d 511, 518 (Tex.App.–Houston [1st Dist.] 2007, no pet.). In this case, King and Lyons appeal from the imposition of permanent injunctions that were included in a modification order. Because the granting of injunctive relief is also within the discretion of the trial court, we likewise review an order granting permanent injunctions for an abuse of discretion. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002) ; Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 642 (Tex.App.–Houston [1st Dist.] 2010, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) ; McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex.App.–Houston [1st Dist.] 1999, no pet.).

A judgment must be supported by the pleadings, and a party may not be granted relief in the absence of pleadings to support such relief. Tex.R. Civ. P. 301 ; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.1983) ; Salomon v. Lesay, 369 S.W.3d 540, 553 (Tex.App.–Houston [1st Dist.] 2012, no pet.). “The purpose of pleadings is to define the issues at trial.” Garvey v. Vawter, 795 S.W.2d 741, 742 (Tex.1990). A pleading is sufficient if it gives the opposing party adequate information to enable him to prepare a defense. Roark v. Allen, 633 S.W.2d 804, 809–10 (Tex.1982). Though we liberally construe a petition to include claims that may reasonably be inferred from the language used, we may not “use a liberal construction of the petition as a license to read into the petition a claim that it does not contain.” Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex.App.–Houston [14th Dist.] 2013, no pet.). Similarly, while a prayer for general relief may include relief consistent with the petitioner's pleading, it cannot be used to “enlarge a pleading to the extent that it embraces an entirely different cause of action for which fair notice does not exist.” Stoner v. Thompson, 578 S.W.2d 679, 683 (Tex.1979).

“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Tex.R. Civ. P. 67 ; see Roark v. Stallworth Oil & Gas,...