Terrett v. Wagenor

OPINION

SPURLOCK, Justice.

This is a suit brought by Linda Lea Wagenor Terrett against her former husband, Thomas H. Wagenor, Jr., to change custody and seeking appointment as sole managing conservator of their three-year-old child, Summer Dee Wagenor, and for child support and attorney fees.

The original divorce decree provided that both parents should be appointed joint managing conservators but provided that the mother should have possession of the child at any and all reasonable times, to be agreed upon by the parties, but not less than every other weekend from 7:00 p. m. Friday to 7:00 p. m. Sunday, one evening during the odd week and one-half of any and all vacations. The father was to have the child at all other times. No child support was ordered in the original divorce decree. The trial court in the suit before us modified the decree and appointed the father managing conservator, named the mother as possessory conservator, and ordered the mother to pay $150.00 per month child support. The mother appeals.

We affirm.

The mother first contends that there was no evidence or insufficient evidence to show that retention of the present conservators would be injurious to the child. The mother testified that the visitation schedule was as follows: “I have her Friday, Saturday, Sunday, he picks her up on Monday evening at day care and then he will have her Monday night and Tuesday and I pick her up Wednesday after I get off at one. I will have her Wednesday and Thursday and then he will pick her up on Friday. He will have her Friday, Saturday, Sunday and I pick her up on Monday and it continues.” The exchange point was the day care center at Watauga.

The father testified that the visitation schedule above is essentially correct. Each of the parties has remarried. The mother has moved to Azle. An aunt testified that the schedule contributed at times to the child’s medicine being mixed up at school, which was dangerous to the child’s health, and caused other problems, especially when the child was ill. The child referred to her dad’s house and to her mother’s house, but never to her home. The mother testified that the child was confused by the arrangement and that her security was not solid. The father testified that the child needed to have “one house, one home, one atmosphere” instead of going back and forth.

The mother moved to Pelican Bay at Azle, where she lived with her new husband, and his son and daughter lived with them part-time. The home consisted of a two-bedroom mobile home. They had problems with space for sleeping when Summer and the other two children were there at the same time.

It is the opinion of both parents that the child needs to belong somewhere. Existing problems will be compounded as the child reaches school age while living in two different school districts.

The mother testified that she wanted the child to be with the father as much as possible. The mother’s representation to the court was that the child should have limited visitation with her father.

There was increased bickering between the parents concerning the child. It was not working out, and the child was being passed around too much. At times the child was attended to by a baby sitter. Each of the parties testified at length concerning the best interest of the child and the injurious effect of the present arrangement.

We hold that the above evidence and the record as a whole supports the judg*310ment. The judgment is supported by evidence, and the mother’s points concerning insufficient evidence and no evidence are overruled.

The mother next contends that the order modifying the decree should be set aside because the father does not have sufficient pleadings to support the judgment. The father, in response to the motion to modify the divorce judgment, filed only a general denial. The court heard testimony as to the earning capacity of each party and the respective spouses. The mother named $150.00 per month as a reasonable figure for child support if she were named sole managing conservator. She stated she was willing to pay some money if the father were named sole managing conservator but declined to estimate what she would consider reasonable. Only twice during the trial did the mother’s attorney object to any of the testimony on the grounds that there were no pleadings to support the testimony.

It is our opinion that the point of no pleadings has been waived and the issue was tried by consent.

If we be in error in the above, we are of the opinion the law is such that this point should be overruled.

Tex. Family Code Ann. sec. 14.07(a) (1975), provides:

“The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.”

In Leithold v. Plass, 413 S.W.2d 698 (Tex.1967), the supreme court passed on a similar situation concerning pleadings in a suit to modify a custody decree. In that case appellant urged the proposition that the visitation decree of the trial court did not conform to the pleadings and was fundamentally erroneous and void, and that the trial court created visitation privileges which were entirely without support in the pleadings and the prayer. In passing on this question the supreme court stated:

“[W]e are of the view that a suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child. The courts are given wide discretion in such proceedings. Ex Parte Eaton, 151 Tex. 581, 252 S.W.2d 557 (1952); Furrer v. Furrer, 267 S.W.2d 226, (Tex.Civ.App.—Austin 1954, no writ). Technical rules of practice and pleadings are of little importance in determining issues concerning the custody of children. Conley v. St. Jacques, 110 S.W.2d 1238, 1242 (Tex.Civ.App.—Amarillo 1937, writ dism’d); Williams v. Guynes, 97 S.W.2d 988 (Tex.Civ.App.—El Paso 1936, no writ). It is beside the point that in the instant proceeding the trial court, whether erroneously or not, construed the pleadings of petitioner as seeking only a modification of visitation rights; the point is that once the child is brought under its jurisdiction by suit and pleading cast in terms of custody and control, it becomes the duty of the court in the exercise of its equitable powers to make proper disposition of all matters comprehended thereby in a manner supported by the evidence.” 413 S.W.2d at 701.

To the same effect and concerning the award of child support in the absence of a pleading for it, see Boriack v. Boriack, 541 S.W.2d 237 (Tex.Civ.App.—Corpus Christi 1976, writ dism’d).

In the case before us, the mother put in issue by pleadings and proof the issue of what conservatorship was in the best interest of the child. This issue was thoroughly tried. The evidence shows that the circumstances affecting the child’s health and welfare have substantially changed since the original divorce decree and a continuation of the present circumstances would be injurious to the health and welfare of the three-year-old child. We are of the opinion that the health and welfare of a three-year-old child should not be endangered by possible deficiencies in pleadings under the circumstances of the case before us.

*311Each point of error has been severally considered and each is overruled. The judgment is affirmed.

MASSEY, C. J., dissents.