Opinion
No. 13-07-413-CV
Opinion delivered and filed February 14, 2008.
On appeal from the 267th District Court of Victoria County, Texas.
Before Justices YAÑEZ, RODRIGUEZ, and BENAVIDES.
MEMORANDUM OPINION
Appellant, the mother of J.A.A., brings this restricted appeal from the trial court's entry of a no-answer default judgment in a paternity proceeding brought by appellee, the father of J.A.A. Through three issues, appellant contends the trial court erred in entering orders for the conservatorship and support of the child because appellee did not request such relief in his pleadings. As modified, the judgment is affirmed.
Appellee did not file a brief.
To prevail on her restricted appeal, appellant must establish that: (1) she filed notice of the restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. The record establishes that appellant met the first three requirements; only the fourth element is at issue.
See TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Bazan v. Canales, 200 S.W.3d 844, 846-47 (Tex.App.-Corpus Christi 2006, no pet.).
Appellant argues that the trial court erred by granting relief on a default basis without notice to her, and that error is apparent on the face of the record. Specifically, appellant contends the trial court erred in granting appellee substantially more relief than he sought in his petition. The purpose of appellee's suit, as stated in his petition, was as follows: "Petitioner seeks to establish the parent-child relationship between [appellee] and [J.A.A.]." Appellee's prayer was similarly limited in scope, stating that "[p]etitioner prays for an order adjudicating parentage." "side from requesting an order adjudicating parentage, appellee had not pled for any further relief. In its default judgment, however, the trial court found that appellee was the father of J.A.A. and then ordered a parenting plan designating appellant and appellee joint managing conservators.
A default judgment must be supported by the pleadings. The defendant must have fair notice of the plaintiff's cause of action and the relief sought. A judgment not supported is erroneous. A party may not be granted relief in the absence of pleadings to support that relief, absent trial by consent. However, there can be no trial by consent on issues decided by default judgment.
Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979).
Id. at 683.
Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983).
Id.
Westchester Fire Ins. Co. v. Nuckols, 666 S.W.2d 372, 375 (Tex.App.-Eastland 1984, writ ref'd n.r.e.).
By granting more relief than appellee requested in his petition, the trial court erred, and that error is apparent on the face of the record. Although detailed pleadings are not required in suits affecting the parent-child relationship, we conclude that appellee's pleadings were too general to put appellant on notice that he would attempt to have the trial court set out a parenting plan providing for J.A.A.'s conservatorship, support, and health-care expenses. Accordingly, we sustain appellant's issues.
See In re B.M., 228 S.W.3d 462, 464-65 (Tex.App.-Dallas 2007, no pet.); Binder v. Joe, 193 S.W.3d 29, 32-33 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Martinez v. Martinez, 61 S.W.3d 589, 590-91 (Tex.App.-San Antonio 2001, no pet.).
Binder, 193 S.W.3d at 33; see MacCallum v. MacCallum, 801 S.W.2d 579, 586 (Tex.App.-Corpus Christi 1990, writ denied) ("Pleadings are of little importance in child custody cases and the trial court's efforts to exercise broad, equitable powers in determining what will be best for the future welfare of a child should be unhampered by narrow technical rulings.").
Because appellee's petition did not provide appellant with notice that he was seeking any of the relief afforded to him by the trial court's parenting plan, we delete that portion of the judgment. As modified, the trial court's judgment is affirmed.
The portion of the judgment being deleted begins with the title " Parenting Plan" on the second page of the trial court's judgment.
See Martinez, 61 S.W.3d at 591.