Weirich v. Weirich

OPINION

GONZALEZ, Justice.

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 *943statutory 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 cosigned 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 *944Bonnie’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 *945Noel 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]o-tice 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, whether Opal aided or assisted Noel in interfering with Bonnie’s custodial rights.

The court of appeals incorrectly concluded that no evidence supported Opal’s alleged violation of the Family Code’s child custody provisions. A number of orders were issued affecting Bonnie’s custodial rights, the most significant of which the trial court rendered in open court during the March 11 contempt hearing, stating that anyone who knew Noel should “advise him that court orders are signed by a district judge to be adhered to.” Two other items of evidence go to the issue of Opal’s notice. First, on March 5 she received notice from the Bexar County District Attorney that Noel had been indicted for child abduction. And second, during the March 11 contempt hearing, Opal stated under oath that if she ever discovered the whereabouts of Noel and the children, she would “notify this court and the plaintiff’s lawyers.” By swearing in open court, Opal assumed an affirmative duty to notify Bonnie’s attorneys or the court if she discovered the whereabouts of the children. She discovered their whereabouts no later than 21 months after making that statement, when the children and Noel visited her at her farm during Christmas 1983.

The court of appeals erred in concluding that no evidence existed that Opal aided and assisted Noel’s violation of the Family Code. 796 S.W.2d at 518. The record contains some evidence supporting the fact that Opal did aid and assist Noel by concealing the whereabouts of the children *946after Noel had abducted them. That evidence includes the following: 1) Noel’s February 27 telephone call to Opal from Mazatlan, Mexico, informing Opal of his and the children’s whereabouts; 2) Christmas 1983 and Thanksgiving 1985 visits by Noel and the children to Opal’s Johnson City farm; 3) at least two other visits to Opal from Noel and the children; and finally, and perhaps most important, 4) the telephone records discovered after the trial which revealed a series of phone calls between Johnson City and Malibu, California, where Noel had settled with the children. Taken together, this amounts to some evidence that Opal aided and assisted Noel’s violation of the Family Code’s child custody provisions; that is, Opal wrongfully concealed the children’s whereabouts, when as a party, she was charged with notice of all orders in the case. See, e.g., Fears v. Mechanical & Indus. Technicians, 654 S.W.2d 524, 528 (Tex.App.—Tyler 1983, writ ref’d n.r.e.); Mayad v. Rizk, 554 S.W.2d 835, 838-39 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.); Pentikis v. Texas Elec. Service Co., 470 S.W.2d 387, 389 (Tex.Civ.App—Fort Worth 1971, writ ref’d n.r.e.).

SUMMARY

In summary, we hold that the court of appeals applied the wrong notice standard in determining whether Opal had notice of the temporary restraining order; and that some evidence exists to support the fact that Opal Weirich aided and assisted Noel Weirich’s violation of the Texas Family Code’s child custody provisions. Because we dispose of this cause exclusively under the Family Code, we do not reach and express no opinion on the correctness of the court of appeals’ writing on negligent infliction of emotional distress and negligent interference with a family relationship. We thus reverse the judgment of the court of appeals and remand this cause to that court to review the sufficiency of the evidence points of error on the Family Code violations in accordance with this opinion.

MAUZY and DOGGETT, JJ., concur with separate opinions.

. Noel had abducted the children once before. After Bonnie had filed for divorce in 1976, Noel took the children at gunpoint from Bonnie and went to stay with Opal. Bonnie called Opal looking for the children, but Opal denied that they were with her. After Bonnie agreed to dismiss the divorce proceeding, she and Noel drove to the Weirich farm and retrieved the children.

. On March 11, 1982, a hearing was held on a motion for contempt filed by Bonnie against Noel and others alleged to have aided in Noel’s February 25 abduction of the children. At this hearing, Opal testified that she did not buy the children clothing during February 1982. Subsequent discovery of Opal's financial records revealed that she purchased clothing for the children on February 6 and 7. At the hearing’s conclusion, the court found Noel in contempt and set punishment at six months in the county jail.

. Opal testified in her deposition that Noel told her, when he borrowed the truck, that he and Bonnie "had furniture to split” and that he wanted to "put some of it down at the barn." At trial, Opal said she knew nothing about the furniture stored in the barn.

. Bonnie only pleaded common law causes of action because the Texas Family Code’s provisions on the liability for interference with child custody did not become effective until September 1, 1983.

. Before trial, Opal specially excepted to the lack of notice under § 36.02(a) and moved for an abatement so that proper notice could be given. The trial court overruled the special exceptions and denied the abatement and Opal’s motion for continuance.

. This is the date Opal was in court for a contempt hearing wherein it was alleged that Noel had violated a child custody order.