Terrett v. Wagenor

MASSEY, Chief Justice,

dissenting.

It is obvious in this case that the original divorce decree of the father and mother of the minor child provided for “joint custody”, or, in other words, that the father and mother should be co-managing conservators by the Texas Family Code. As reflected in the statement of facts the trial judge so understood the prior decree.

There is no question but that the suit brought and prosecuted by the mother was one by which she sought an order of the court in modification and change of the prior decree. By her pleadings she desired removal of the father as “joint custodian”. She prayed that she be made the sole managing conservator, with the father made possessory conservator. In reply to this suit the father filed a general denial and nothing more. He sought no affirmative relief whatsoever. In other words, according to his pleadings, his position before the trial court was that of a defendant resisting an adversary’s suit for relief and praying that such adversary take nothing. By a proper construction of his pleadings he sought to preserve the existing state of affairs — the joint custody of the parties’ child.

During the course of the trial the father, through his attorney apparently attempted to change positions without amendment of pleadings. By some of his tendered evidence he apparently sought to show that it would be in his child’s best interest if he were made sole managing conservator, with the mother ousted from her capacity as joint custodian of the child. At every stage where there was attempt to introduce evidence in support of such a theory there was prompt objection of the mother’s attorney on the ground of absence of pleading in support. It could not be said that such a case was tried by express or implied consent. Furthermore, even had it been so tried there was no prayer by the father to be made sole managing conservator.

There was never any proffer of evidence favorable to a claim by the father, and against the mother, to the effect that continuation of the existent joint custody would be injurious to the welfare of the child; in other words there was no evidence in behalf of the father that continuation of the mother as a co-managing conservator would be thus harmful. Since September 1, 1975 it has been a part of the burden of pleading and proof on the part of one who seeks a decree in modification or change of an existing child custody decree to so show. Tex. Family Code Ann. sec. 14.08, “Modification of Order”. Because of this want of evidence, aside from any question on pleadings, the father could not have shown himself entitled in this proceeding to be made sole managing conservator. The test of evidence to support the judgment would not be any different had the former decree been one by which the mother had been made the sole managing conservator.

Nevertheless the decree of the trial court did invest the father as the sole managing conservator and oust the mother as co-managing conservator. I would hold reversible error in the judgment for this reason.

Furthermore, I would also reverse because of the award made in favor of the father in grant of relief for which he did not ask by any pleading. 33 Tex.Jur.2d, p. 564, “Judgments”, sec. 65, “(Conformity to Pleadings, Case Proved, Verdict, or Findings) — In general”, and p. 573, sec. 70, “Effect of evidence” (1962); Dean v. Maxwell, 173 S.W.2d 246, 249 (Tex.Civ.App.—East-land 1943, writ dism’d).

In Dean v. Maxwell, last cited, Justice Funderburk embarked on an interesting discussion of the question of the right to judgment for affirmative relief by a defendant who has not filed a cross-action or counter claim. About the only question not posed and answered by Funderburk would be that I here pose, to-wit: Had the plaintiff taken a non-suit before resting his case without any existent prayer of the defendant for affirmative relief, what relief could the trial court grant the defendant?

I respectfully dissent; I would reverse the judgment in this case.