Weirich v. Weirich
| Decision Date | 24 June 1992 |
| Docket Number | No. D-0477,D-0477 |
| Citation | 833 S.W.2d 942 |
| Parties | Bonnie Gail WEIRICH, Individually and as Managing Conservator for Charles Jacob Weirich and Jennifer Gail Weirich, Petitioner, v. Opal WEIRICH, Respondent. |
| Court | Texas Supreme Court |
This is a child abduction case. Based on favorable jury findings, the trial court rendered judgment for the plaintiff. The court of appeals reversed and rendered a take nothing judgment. 796 S.W.2d 513. Among other things, we must decide whether the record contains some evidence that the respondent, Opal Weirich, violated the Texas Family Code's child custody provisions. We hold that there is some evidence that she did. We thus reverse the judgment of the court of appeals and remand to that court for a review of the statutory violations in accord with this opinion.
In February 1982, Ralph Noel Weirich (Noel) abducted his two children from their mother, Bonnie Weirich. Noel's mother, Opal Weirich, allegedly assisted in the abduction. Bonnie sued her husband, Noel, and her mother-in-law, Opal, for the intentional and negligent infliction of emotional distress, for the intentional and negligent interference with child custody, and for violations of the Family Code's child custody provisions. The jury returned a verdict against Noel on all questions, but found Opal liable only on the negligence and Family Code questions. Based on the jury's verdict, the trial court granted Bonnie a $5,947,684.89 judgment jointly and severally against Noel and Opal. Both Noel and Opal appealed.
The court of appeals dismissed Noel's appeal for want of prosecution, reversed the trial court's judgment for Opal, and rendered a take nothing judgment. The court held that no direct actions existed for the negligent interference with a family relationship or the negligent infliction of emotional distress, and determined that no evidence and insufficient evidence supported the Family Code claims. Because we dispose of this case on statutory grounds, we express no opinion on the correctness of the court of appeals' writing on negligent infliction of emotional distress; and we conclude that there is more than a scintilla of evidence indicating that Opal aided and assisted Noel's violation of the Family Code's child custody provisions. A fuller recitation of the facts is necessary in order to put the issues before us in proper context.
On February 1, 1982, Bonnie Weirich petitioned for divorce from Noel Weirich and simultaneously obtained a temporary restraining order preventing Noel from interfering with Bonnie's possession of their two children, ages six and seven at that time. On February 4, Noel abducted the children from their school in San Antonio and took them to Johnson City, where the three of them stayed with Opal on the Weirich farm. 1 Upon learning of the abduction, Bonnie telephoned Opal, told her of the pending divorce, and asked her to call if she discovered the children's whereabouts, which Opal agreed to do. But Opal did not call despite the fact that the children and Noel stayed with Opal between February 4-8, during which Opal purchased new sets of clothing for the children. 2
On February 8, a private investigator confronted Noel at Houston's Hobby Airport, recovered the two children, and served Noel with the February 1 temporary restraining order. The children were returned to Bonnie later that day. The next day, the trial court extended the order restraining Noel from interfering with Bonnie's custodial rights. The court extended that order again on February 19. In the interim, the trial court held a hearing on February 12 during which it appointed Bonnie as temporary managing conservator and further enjoined Noel from interfering with Bonnie's right to possess the children.
On February 23, Noel borrowed $4000 from a Johnson City bank on a note co-signed by Opal as guarantor. Noel identified his home address on the note as the Weirich farm in Johnson City. Soon thereafter, Opal loaned Noel her truck, which was used to remove furniture, files, and every item relating to the children from Bonnie's house in San Antonio. The removed material was stored in a barn on the Weirich farm. 3
On February 25, 1982, Noel again abducted the children from their school and took them to Johnson City. Opal then drove Noel and the children to the airport. That evening, Bonnie called Opal to inquire as to the children's whereabouts. Opal said that Noel had taken them camping for a couple of weeks, but she did not know where. In fact, Noel had taken the children to Mexico. Bonnie did not see her children again for over seven years.
On March 3, 1982, Bonnie had Opal served with a petition alleging the following three causes of action against Opal and Noel: 1) common law interference with child custody; 2) intentional infliction of emotional distress; and 3) negligent infliction of emotional distress. 4 And on March 5, the Bexar County District Attorney notified Opal's attorney that Noel had been indicted for child abduction. Additionally, on March 11, Opal was present at a contempt hearing wherein it was alleged that Noel had violated a court order regarding custody. Opal was informed by the trial judge that he expected the custody order to be obeyed. The trial court with jurisdiction over Bonnie's divorce proceedings subsequently granted Bonnie a divorce on April 28, 1982, appointed her as permanent managing conservator, and appointed Noel as possessory conservator without visitation rights.
On November 28, 1988, seven days prior to trial, Bonnie amended her petition alleging a cause of action for interference with child custody in violation Chapter 36 of the Family Code. The Family Code sections relevant to this case are found in TEX.FAM.CODE §§ 36.02 & 36.07 and read as follows:
§ 36.02 Liability for Interference with Child Custody
(a) A person who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a court order that provides for possessory interests in a child may be liable for damages to the person who is denied a possessory interest in the child.
* * * * * *
(c) Each person who aids or assists in conduct for which a cause of action is authorized by Subsection (a) of this section is jointly and severally liable for damages.
(d) A person who was not a party to the suit in which a court order was issued providing for possessory interests in a child is not liable under this chapter for a violation of the court order unless the person at the time of the violation:
(1) had actual notice of the existence and contents of the order; or
(2) had reasonable cause to believe that the child was the subject of a court order and that his actions were likely to violate the order.
§ 36.07 Notice
(a) As a prerequisite to the filing of suit under this chapter, a person who has been denied a possessory interest in a child in violation of a court order shall give written notice to the person violating the order.
* * * * * *
(d) Notice need not be given to persons aiding or assisting in conduct for which a cause of action is authorized under this section.
The jury charge, which was constructed from Bonnie's statutory allegations, combined the causes of action defined in § 36.02(a) and § 36.02(c). That is, it gave the jury the option of finding Opal liable for directly interfering with Bonnie's custodial rights by either taking, retaining, or concealing the children (in violation of a court order), or for aiding and assisting Noel in doing the same. The court of appeals correctly concluded that in order to hold Opal directly liable under § 36.02(a), Bonnie had to have given her the notice required by § 36.07(a). 796 S.W.2d at 520. Bonnie wrongly asserts that she did not have to give such notice since she filed suit prior to September 1, 1983, the effective date of Chapter 36. But Bonnie was bound by the notice requirement, because she did not plead the statutory claims until she filed her Third Amended Petition on November 28, 1988, which was over five years after Chapter 36 became law. Thus, Bonnie should have given Opal the statutorily required notice of her intent to file a claim under § 36.02(a). 5
We turn now to the § 36.02(c) cause of action under which Bonnie alleged that Opal was liable for aiding and assisting Noel in the taking, retaining, or concealing of the children. If Opal aided and assisted Noel, then Bonnie did not have to give Opal notice before filing suit against her, because the Family Code provides that "[n]otice need not be given to persons aiding and assisting" another's violation of the Code's child custody provisions. See TEX.FAM.CODE §§ 36.07(d) and 36.07(c). So Opal may be liable if she aided and assisted Noel in either taking, retaining, or concealing the children as long as she had reasonable cause to believe (or actual notice) that a court order affecting custodial rights existed. Because of the discussion that follows, we conclude that there is some evidence that Opal aided and assisted Noel's violation of the Family Code's child custody provisions, and some evidence that she had reasonable cause to believe an order existed at least after March 11, 1982. 6
In reviewing the substance of Bonnie's § 36.02(c) cause of action, the court of appeals held that no evidence and insufficient evidence supported the jury's finding that Opal aided and assisted Noel. 796 S.W.2d at 518. In reviewing no evidence points, we must view the evidence in the record in a light which tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. See Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986). Thus, we must examine the record to see whether some evidence exists to support the fact in issue, namely,...
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