Affirmed as Modified and Opinion filed May 24, 2016.




                                          In The

                       Fourteenth Court of Appeals

                                 NO. 14-15-00326-CV

    IN THE MATTER OF THE MARRIAGE OF TIMOTHY RICHARD DAY
                     AND KELLY MARIE DAY


                      On Appeal from the 247th District Court
                              Harris County, Texas
                        Trial Court Cause No. 2013-71984

                                    OPINION


       Appellant Timothy Day brings this restricted appeal from the trial court’s
final decree of divorce.1 Timothy contends the trial court abused its discretion in
granting an award of spousal maintenance to appellee Kelly Day, his former wife,
because her pleadings did not support such an award. We hold the trial court
abused its discretion by granting more relief than Kelly requested in her pleadings.


1
 Because the appellant and appellee share the same surname, we will refer to the appellant as
Timothy and the appellee as Kelly.
We therefore sustain Timothy’s sole issue on appeal, modify the trial court’s
decree to remove the award of spousal maintenance, and affirm the decree as
modified.

                                      BACKGROUND

       Kelly filed an original petition for divorce and served it upon Timothy. 2
Timothy did not answer or appear at the evidentiary hearing. Following Kelly’s
presentation of evidence, the trial court granted a default judgment against
Timothy and signed the divorce decree on October 15, 2015. The decree divided
the couple’s community property and ordered Timothy to provide Kelly spousal
maintenance in the amount of $1,333.33 per month for 60 months. See Tex. Fam.
Code Ann. § 8.051 (West Supp. 2015). Timothy did not file any post-judgment
motions, but he did file a restricted appeal prior to the six-month filing deadline.

                                        ANALYSIS

       In his restricted appeal, Timothy raises a single issue: the trial court abused
its discretion in awarding Kelly spousal maintenance because her pleadings
provided no basis for such an award. A restricted appeal is a direct attack on a
default judgment. Whitaker v. Rose, 218 S.W.3d 216, 219 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (citing Tex. R. App. P. 30). To succeed in a restricted
appeal, Timothy must establish (1) the restricted appeal was filed within six
months after the judgment was signed; (2) he was a party to the underlying lawsuit;
(3) he did not participate in the hearing that resulted in the judgment and did not
timely file any post-judgment motions or requests for findings of fact or
conclusions of law; and (4) error is apparent on the face of the record. See In re
Marriage of Butts, 444 S.W.3d 147, 150 (Tex. App.—Houston [14th Dist.] 2014,
2
  Kelly filed no other motions or documents in this case; her pleadings consist solely of her
original petition.

                                             2
no pet.) (citing Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)).
Kelly challenges only the fourth element, arguing that the face of the record shows
no error.

       We review an award of post-divorce spousal maintenance under an abuse-
of-discretion standard. Dunn v. Dunn, 177 S.W.3d 393, 396 (Tex. App.—Houston
[1st Dist.] 2005, pet denied). A trial court abuses its discretion by awarding relief
to a person who has not requested such relief in a live pleading. In re S.A.A., 279
S.W.3d 853, 856 (Tex. App.—Dallas 2009, no pet.). We conclude the trial court
abused its discretion by awarding Kelly spousal maintenance and such error is
apparent on the face of the record.

I.     Kelly’s pleadings do not provide fair notice that she was seeking post-
       divorce spousal maintenance.
       A default judgment must be supported by the pleadings. See Tex. R. Civ. P.
301; see also Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). This rule is a
specific application of the more general principle that a party may not be granted
relief in the absence of pleadings to support that relief, unless the request for relief
is tried by consent—a situation that cannot occur in the context of a default
judgment. Stoner, 578 S.W.2d at 682; Maswoswe v. Nelson, 327 S.W.3d 889,
895–96 (Tex. App.—Beaumont 2010, no pet.).3 A party’s pleadings must also be
sufficient to provide the opposing party fair notice of the plaintiff’s cause of action
and the relief sought. Flowers v. Flowers, 407 S.W.3d 452, 458 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); see McKnight v. Trogdon-McKnight, 132

3
  The default judgment distinguishes this case from Yasin v. Yasin, No. 03-10-00774-CV, 2011
WL 5009895 (Tex. App.—Austin Oct. 21, 2011, no pet.) (mem. op.). There, the trial court
awarded the wife temporary maintenance without objection, and the wife filed a statement of
issues giving the husband fair notice that she would be requesting at trial an award of spousal
maintenance for thirty-six months following the divorce. Id. at *6. Thus, her claim of spousal
maintenance was tried by consent.

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S.W.3d 126, 131 (Tex. App.—Houston [14th Dist.] 2004, no pet.). “Fair notice”
exists when the opposing party can ascertain from the pleading the nature of the
claims, the basic issues in controversy, and what testimony will be relevant to the
claims. Elite Door & Trim, Inc. v. Tapia, 355 S.W.3d 757, 766 (Tex. App.—
Dallas 2011, no pet.); see Flowers, 407 S.W.3d at 457–58 (explaining that courts
liberally construe petition to contain any claims that reasonably may be inferred
from the specific language used, even if an element of the claim is not specifically
alleged). A judgment not supported by the pleadings is erroneous. Cunningham v.
Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983).

         Kelly argues her petition gave Timothy fair notice by requesting temporary
relief and referencing her need for future support. We disagree. Paragraph 16 of
Kelly’s petition, entitled “Request for Interim Attorney’s Fees and Temporary
Support,” states:

         Petitioner has insufficient income for support, and Petitioner requests
         the Court to order Respondent to make payments for the support of
         Petitioner until a final decree is signed.
This language shows Kelly requested only temporary maintenance while the
divorce action was pending.4 See Obstetrical & Gynecological Associates, P.A. v.
McCoy, 283 S.W.3d 96, 107 (Tex. App.—Houston [14th Dist.] 2009, pet. denied)
(relying on plain language of petition to determine basis of plaintiff’s claim); see
also Tapia, 355 S.W.3d at 766 (determining that pleading provides fair notice
when an opposing attorney of reasonable competence can ascertain nature and
basic issues of the controversy). Timothy was therefore not on notice that Kelly
was seeking spousal maintenance that extended after the final decree was signed.

         An analogous situation arises when a plaintiff files but fails to serve on the

4
    The record does not show that Kelly was awarded any temporary maintenance.

                                               4
defendant an amended petition seeking more onerous relief than that prayed for in
a previous served petition. See Cox v. Cox, 298 S.W.3d 726, 733 (Tex. App.—
Austin, 2009, no pet.) (reversing default judgment because wife failed to give
husband fair notice that her amended petition sought permanent rather than
temporary relief).   “More onerous” is anything that exposes the defendant to
additional liability. Id. at 733–34; see also Caprock Constr. Co. v. Guaranteed
Floorcovering, Inc., 950 S.W.2d 203, 204 (Tex. App.—Dallas 1997, no writ).

      Here, Timothy did not have fair notice that he was exposed to the additional
liability of post-divorce spousal maintenance because nothing in Kelly’s pleadings
indicated she sought such relief. By granting relief more onerous than that Kelly
requested in her petition, the trial court erred, and that error is apparent on the face
of the record.    See Flowers, 407 S.W.3d at 458 (holding trial court erred in
removing geographic restriction on exclusive right to determine children’s primary
residence because wife did not request that relief in her petition); Binder v. Joe,
193 S.W.3d 29, 33 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding trial
court erred in granting more relief than husband requested in petition and that such
error is apparent on the face of the record).

II.   Kelly’s prayer for general relief does not entitle her to relief inconsistent
      with her pleadings.
      Kelly also argues that her prayer for general relief, together with her
reference to the need for support and her request for temporary relief, entitle her to
an award of spousal maintenance under the notice pleading standard used by Texas
courts. Kelly relies on Reimert v. Reimert, which upheld a trial court’s award of
economic contribution when the divorce petitioner did not specifically plead for it
because the petitioner’s pleading contained a prayer for just and right division of
the community estate as well as for general relief. No. 09-07-00418-CV, 2008 WL


                                           5
4890900, at *4 (Tex. App.—Beaumont Nov. 13, 2008, no pet.) (mem. op.).

      Kelly’s reliance on Reimert, which did not involve a no-answer default
judgment, is misplaced. The petitioner in Reimert raised two issues challenging
the award of economic contribution: (1) the pleadings failed to support the claim of
economic contribution, and (2) the evidence was legally and factually insufficient
to support the award.      Id.   Because the petitioner raised legal and factual
sufficiency challenges, the court of appeals examined the pleadings as well as the
evidence offered at the evidentiary hearing. Id. at *3–4. The court reviewed the
record and held there was legally and factually sufficient evidence to support the
award of economic contribution because community assets had been used to
reduce the amount of a debt secured by separate property. Id. at *4. The court also
held that the requesting spouse’s petition sufficiently raised her contribution claim
by asking the trial court to “divide the estate in a manner that the court deemed just
and right, as provided by law.” Id. at *3. The court considered the finding of
economic contribution to be part of the property division. Id. at *4.

      Here, Timothy does not raise a sufficiency argument. His sole issue on
appeal is that Kelly’s pleadings do not support the award of spousal maintenance.
The scope of our review is therefore limited to the pleadings, which consist solely
of Kelly’s original petition.    See Stoner, 578 S.W.2d at 683–85 (reviewing
plaintiff’s pleadings and holding pleadings did not support default judgment for
monetary damages). Like the petition in Reimert, Kelly’s petition requested a
division of community property. But unlike Reimert, which held that an award of
economic contribution was sufficiently included in the requested property division,
Kelly does not contend that a request for property division is sufficient to provide
notice that she sought payment of spousal maintenance following the property
division.

                                          6
      Outside the default-judgment context, some courts have held that absent
special exceptions, a prayer for general relief will support an award of any relief
raised by the evidence. See, e.g., Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex.
App.—Houston [1st Dist.] 1991, no writ). The relief must also be consistent with
the allegations in the petition, however. Id.; Hardin v. Hardin, 161 S.W.3d 14, 24
(Tex. App.—Houston [14th Dist.] 2004, no pet.); see Alan Reuber Chevrolet, Inc.
v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 885 (Tex. App.—Dallas 2009, no pet.)
(holding prayer for general relief does not support award of attorney’s fees); Bufkin
v. Bufkin, 259 S.W.3d 343, 358 (Tex. App.—Dallas 2008, pet. denied) (holding
prayer for general relief does not support award of common-law prejudgment
interest as element of damages). We therefore consider whether Kelly’s pleadings
are consistent with an award of post-divorce spousal maintenance.

      Other than Kelly’s request for temporary support discussed above, the only
arguable reference to spousal maintenance in her petition is in paragraph 10, where
she asks the trial court to consider her “need for future support” as one of the
“reasons” she “should be awarded a disproportionate share of the parties’
[community] estate.” Such a request is inconsistent with an award of post-divorce
spousal maintenance. An award of post-divorce spousal maintenance is, in effect,
an award of the husband’s future separate property following the division of
community property. See Tex. Fam. Code § 8.001(1) (defining maintenance as
award of periodic payments from spouse’s future income); see also Sharma v.
Routh, 302 S.W.3d 355, 360 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(“Whether property is separate or community is determined by its character at the
inception of the party’s title.”). Kelly’s petition asked that her need for future
support be taken into account in determining her share of the community estate;
there is no request for an additional award of spousal maintenance. Even under the


                                         7
notice pleading standard used by Texas courts, we conclude the trial court had no
basis in the petition for providing such relief. See Flowers, 407 S.W.3d at 458
(“[W]e cannot use a liberal construction of the petition to read into the petition a
claim that it does not contain.”); see also King v. Lyons, 457 S.W.3d 122, 126
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (“[A] prayer for general relief . . .
cannot be used to enlarge a pleading to the extent that it embraces an entirely
different cause of action for which fair notice does not exist.”).

       We conclude the trial court abused its discretion by awarding Kelly spousal
maintenance because Kelly did not request this relief in her petition. Timothy’s
sole issue is sustained.

                                        CONCLUSION

       Having sustained Timothy’s sole issue on appeal, we modify the final
divorce decree to delete the award of spousal maintenance in the amount of
$1333.33 per month for 60 months, and we affirm the decree as modified.5




                                            /s/       J. Brett Busby
                                                      Justice


Panel consists of Justices Christopher, McCally, and Busby.

5
   Although appellant requests that this Court remand the case to the trial court, we conclude
affirming the trial court’s final divorce decree as modified is the more appropriate remedy. See
Tex. R. App. P. 43.3 (stating the court of appeals must generally render the judgment that the
trial court should have rendered); see also 43.2(b) (authorizing the court of appeals to “modify
the trial court’s judgment and affirm it as modified”); Garza v. Cantu, 431 S.W.3d 96, 108–
09(Tex. App.—Houston [14th Dist.] 2013, pet. denied) (looking to rules rather than prayer to
determine appropriate disposition); Coleman v. Coleman, No. 02-09-00155-CV, 2009 WL
4755173, at *3 (Tex. App.—Fort Worth Dec. 10, 2009, no pet.) (appellant requested remand, but
court of appeals rendered judgment in appellant’s favor).

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