Opinion
No. 02-09-255-CV
Delivered: September 16, 2010.
Appealed from the 30th District Court of Wichita County.
PANEL: LIVINGSTON, C.J.; GARDNER and WALKER, JJ.
LIVINGSTON, C.J., filed a dissenting opinion.
OPINION
I. Introduction
Appellant Adrianna Ruiz Taylor appeals from a July 1, 2009 final decree of divorce. Adrianna contends in two issues that the trial court erred by refusing to hear evidence concerning retroactive child support because Appellee Eric Da'Vell Taylor had fair notice of her request for retroactive child support and because Eric did not specially except to her failure to specifically plead for retroactive child support. We reverse and remand.
II. Factual and Procedural Background
Adrianna and Eric were married on August 31, 1997, and had one child. Eric filed a petition for divorce on April 10, 2008, and sought "orders for conservatorship and support of the child" in the event that he and Adrianna could not reach an agreement on those matters. Adrianna filed a petition for divorce on April 24, 2008. In her original petition, Adrianna requested that Eric "be ordered to make payments for the support of the child," and she sought a temporary order for "child support . . . while this case is pending."
On May 7, 2009, Eric's counsel announced to the trial court that the parties had "reached an agreement on all issues pertaining to the division of property, assignment of liabilities, current child support, health insurance, conservatorship, rights, duties, and responsibilities." Eric's counsel also stated, "There's an issue that [Adrianna's counsel] reserves to litigate later after we do the prove up." After Eric and Adrianna each testified to their agreement, the trial court stated to Adrianna's counsel, "And you indicated, Ms. Lucking, the remaining issue is retroactive support." Eric's counsel then objected to any evidence concerning retroactive child support because Adrianna did not specifically plead for retroactive child support. After hearing argument, the trial court sustained the objection and stated, "I'm going to overrule the request for retroactive child support. I find that it has to be pled in the face of an objection and it has not been pled."
On May 26, 2009, Adrianna filed a motion to reconsider the trial court's ruling concerning retroactive child support, and the trial court conducted a hearing on July 1, 2009. At the conclusion of the hearing, the trial court stated, "The court finds that the request for retroactive support must be specifically pleaded, and that special exception was not required." The trial court then denied the motion to reconsider and signed the final decree of divorce. Adrianna timely filed her notice of this appeal.
III. Standard of Review
To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see Low, 221 S.W.3d at 620. However, a trial court's erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion. Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001) (orig. proceeding); Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996) (orig. proceeding).
IV. Analysis
Adrianna contends in her second issue that the trial court erred by refusing to hear evidence concerning retroactive child support because Eric waived any defect in her pleading by failing to specially except. We agree.
Texas follows a "fair notice" standard for pleading. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see Tex. R. Civ. P. 45. Generally, a pleading provides fair notice of a claim when an opposing attorney of reasonable competence can examine the pleadings and ascertain the nature and basic issues of the controversy and the relevant testimony. Auld, 34 S.W.3d at 896. In pertinent part, rule 90 of the rules of civil procedure states,
Every defect, omission or fault in a pleading either of form or of substance, which is not specifically pointed out by exception in writing and brought to the attention of the judge in the trial court before the instruction or charge to the jury or, in a non — jury case, before the judgment is signed, shall be deemed to have been waived by the party seeking reversal on such account.
Tex. R. Civ. P. 90. In the absence of special exceptions, the petition should be construed liberally in favor of the pleader. Auld, 34 S.W.3d at 897; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (op. on reh'g); see also London v. London, 192 S.W.3d 6, 13 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (reviewing husband's pleadings liberally in his favor in determining sufficiency of pleading relating to modification and offset to child support payments, including retroactive child support payments, in the absence of sustained special exceptions to husband's pleadings); Van Buren v. McMillen, No. 14-03-00928-CV, 2004 WL 1898799, at *2 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (mem. op.) (rejecting contention that retroactive child support award was not supported by pleadings and construing pleadings liberally in pleader's favor in absence of special exceptions); In re S.L.M., 97 S.W.3d 224, 232-33 (Tex. App.-Amarillo 2002, no pet.) (holding that pleadings, in absence of special exceptions, sufficiently raised retroactive child support but reversing in part because trial court's order awarded retroactive child support for improper dates).
Here, Adrianna's original petition requested that Eric "be ordered to make payments for the support of the child" and further sought a temporary order for "child support . . . while this case is pending." And there can be no dispute that Eric had specific notice that Adrianna sought retroactive child support. See Martinez v. Martinez, 61 S.W.3d 589, 590-91 (Tex. App.-San Antonio 2001, no pet.) ("Specific notice is required when retroactive child support is being sought." (quoting In re J.G.Z., 963 S.W.2d 144, 148 (Tex. App.-Texarkana 1998, no pet.))). The parties announced to the trial court that they had agreed to all issues concerning "division of property, assignment of liabilities, current child support, health insurance, conservatorship, rights, duties, and responsibilities" and that Adrianna had reserved the issue of retroactive child support to be litigated after the parties testified about the matters to which they agreed. Although "one who is sued on specific theories of recovery is not required to except to the petition and ask whether there are other theories that the pleader wants to allege," Haynes v. City of Beaumont, 35 S.W.3d 166, 180 (Tex. App.-Texarkana 2000, no pet.), Adrianna's petition sought an order for child support, without clarifying whether the request was for future or retroactive child support, and requested a temporary order for child support during the pendency of the case. To the extent that there was any ambiguity in the scope of Adrianna's affirmative request for child support, Eric was obligated to file special exceptions and ask the trial court to order Adrianna to replead with sufficient specificity. See Auld, 34 S.W.3d at 897; London, 192 S.W.3d at 13. But the trial court incorrectly found that special exceptions were not required. And the trial court's erroneous legal conclusion was an abuse of discretion. See Auld, 34 S.W.3d at 897; see also Perry, 66 S.W.3d at 257 (stating trial court's erroneous legal conclusion is an abuse of discretion).
Moreover, we note that Eric does not dispute that he is the child's father, that he did not have custody of the child after he and Adrianna separated, or that he did not pay child support pending the outcome of the divorce proceeding.
We hold that the trial court abused its discretion by refusing to allow Adrianna to introduce evidence concerning retroactive child support. Adrianna pleaded for child support and a temporary order for child support during the pendency of the case, Eric had specific notice of Adrianna's request for retroactive child support, and Eric did not file special exceptions seeking clarification of any ambiguity in Adrianna's pleading. We therefore sustain Adrianna's second issue.
In light of our disposition of Adrianna's second issue, we need not address her first issue. See Tex. R. App. P. 47.1.
V. Conclusion
Having sustained Adrianna's second issue, we reverse the trial court's judgment and remand this case to the trial court for further proceedings consistent with this opinion.
DISSENTING OPINION
I respectfully dissent from the majority opinion holding that appellant Adrianna Ruiz Taylor's pleadings provided any notice that she was seeking retroactive child support under family code section 154.009. See Tex. Fam. Code Ann. § 154.009 (Vernon 2008). Nowhere in appellant's original petition or in any other subsequent pleading did she provide notice that she was specifically seeking retroactive child support. During the hearing on this issue, appellee Eric Da'Vell Taylor objected due to the lack of notice or pleadings on this issue, so I believe the trial court properly sustained the objection.
In the family code, the term "retroactive support" applies in two situations: where child support has not previously been ordered (as here(or where a party is seeking to retroactively modify existing child support such that the modification is retroactive to the time of service or appearance of the pleading requesting the change. See id. `(154.009, 156.401; In re S.L.M., 97 S.W.3d 224, 233 (Tex. App.-Amarillo 2002, no pet.). One objective of the former type of retroactive child support is to remove any motive of the obligor to engage in delay tactics. See Knight v. Knight, 131 S.W.3d 535, 538 n. 1 (Tex. App.-El Paso 2004, no pet.). Regardless, as in any litigation, our rules require fair notice of a claim, and the family code specifically requires parties to include a "statement describing what action the court is requested to take concerning the child and the statutory grounds on which the request is made." Tex. Fam. Code Ann. § 102.008(b)(10) (Vernon 2008); see Tex. R. Civ. P. 45, 47, 48, 50; Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896-97 (Tex. 2000) (following the (fair notice" standard of pleadings); Moneyhon v. Moneyhon, 278 S.W.3d 874, 878 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (same); Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d 330, 335 (Tex. App.-Fort Worth 2005, pet. denied) (same).
Additionally, when appellant sought to submit evidence on the issue of retroactive child support, she neither sought nor obtained a trial amendment. See Tex. R. Civ. P. 66; see generally City of the Colony v. N. Tex. Mun. Water Dist., 272 S.W.3d 699, 745 (Tex. App.-Fort Worth 2008, pet. dism'd by agr.). Furthermore, she made no offer of proof. See Tex. R. Evid. 103(a)(2), (b). Without some notice, I believe we should not even reach the question of appellee's duty to specially except under rule 90. See Tex. R. Civ. P. 90.
I therefore respectfully dissent and would affirm the trial court's judgment.