Affirmed as Modified and Opinion and Concurring Opinion filed December
28, 2012.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-11-00369-CV

                KATY SHUK CHI LAU MESSIER, Appellant

                                        V.

                          LUC J. MESSIER, Appellee

                    On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2009-45158

                  CONCURRING                    OPINION


      I join in the court’s opinion addressing Katy Messier’s second and third
issues. Although I also agree that the parties’ requests for injunctive relief were
properly before the trial court, I would overrule Katy’s first issue for different
reasons than those stated by the majority. I instead would hold that most of the
challenged injunctions that prohibit Katy from taking some action were placed at
issue by Katy’s live pleadings, and the propriety of the remaining injunctions, most
of which require Katy to take some action, was tried by consent.

A.     Matters Raised by Katy’s Counterpetition

       About two months after the agreed temporary orders were signed in
December 2009, Katy Messier filed her second amended counterpetition, in which
she “pray[ed] that the Court make all temporary injunctions permanent.” For
nearly every injunction that is included in the final decree of divorce and that
prohibits Katy from taking some action, there is a parallel temporary order or
injunction. I would hold that by asking the trial court to make this temporary relief
permanent, Katy placed these issues before the trial court.1

       1.     Hiding or secreting the children

       In the agreed temporary orders, Katy was enjoined from “hiding or secreting
the children from the other party.” The “other party” is Luc. In the final decree of
divorce, Katy is enjoined from the identical conduct: “hiding or secreting the
children from Luc J. Messier.”

       2.     Discussing the litigation in the children’s hearing

       Under the agreed temporary orders, Katy was enjoined from “discussing the
pending litigation or any manner related thereto with the children or in the
presence of the children.” In the final decree of divorce, she is enjoined from
“discussing this litigation or any matter related thereto with the children or in the
presence of the children.” The language in the final decree of divorce has been
changed from that of the agreed temporary orders only to reflect that the divorce
litigation may no longer be “pending.”



1
  In comparing the content of the two documents, I have standardized the capitalization and
punctuation.

                                            2
      3.     Unapproved travel

      In the agreed temporary orders, it was ordered that Katy “shall not travel
with [the children] outside the United States, without written approval of the other
parent.” It additionally was ordered that Katy “shall not travel with the children
outside of Texas without approval from the other parent and after providing a
detailed itinerary to the other parent.” In the final decree of divorce, Katy is
enjoined from “removing the children from the State of Texas or the United States
without the specific written permission of Luc Messier.”

      The differences between the prohibitions of the two documents are limited to
matters of form. Under the terms of the agreed temporary orders, Katy was
required to obtain Luc’s approval before traveling with the children between states
or between nations, but the form in which such approval had to be given was
specified only for the latter. In the final decree of divorce, approval was required
in the same form—writing—for both interstate or international travel. Although
the relief granted in one document was phrased as an “order” and in the other as an
“injunction,” the substance of each ruling is the same. See Peck v. Peck, 172
S.W.3d 26, 36 (Tex. App.—Dallas 2005, pet. denied) (“[W]hether the trial court
entered an injunction . . . or a simple order that made the same prohibition within
the divorce decree appears to be a distinction without a difference.”) I therefore
would conclude that Katy’s pleading asking for this temporary injunction to be
made permanent placed this issue before the trial court.

      4.     Applying for or renewing passports or visas

      In the agreed temporary orders, Katy was enjoined from “applying for and or
renewing any passport belonging to [either child]”; in the final decree of divorce,
she was enjoined from “applying on behalf of the children for new or replacement
passports or international travel visas.” “A passport is a document identifying a
                                         3
citizen, in effect requesting foreign powers to allow the bearer to enter and to pass
freely and safely, recognizing the right of the bearer to the protection and good
offices of [the issuing country’s] diplomatic and consular officers.” United States
v. Laub, 385 U.S. 475, 481, 87 S. Ct. 574, 578, 17 L. Ed. 2d 526 (1967). A visa is
“issued by the government of the country in which the holder of the passport
desires to travel” and recognizes “the validity of a passport.” United States v.
Rodriguez, 182 F. Supp. 479, 484 (S.D. Cal. 1960) aff’d in part, rev’d in part on
other grounds sub nom. Rocha v. United States, 288 F.2d 545 (9th Cir. 1961).
Because both documents often are needed for international travel, I would hold that
the portion of the final decree of divorce permanently enjoining Katy from
renewing or applying for such documents on the children’s behalf did not
impermissibly exceed the scope of matters raised by Katy’s pleading.

      5.     Removing the children beyond Harris County, Texas

      In the agreed temporary orders, Katy was enjoined from “removing the
children beyond Harris County, Texas, acting directly or in concert with others
unless specifically authorized herein.” In the final decree of divorce, Katy is
enjoined from “interfering in any way with Luc J. Messier’s possession of the
children or taking or retaining possession of the children, directly or in concert
with other persons, except as permitted by order of the Court.”

      Here, the conduct prohibited by the permanent injunction is broader than
that prohibited by the agreed temporary orders. “Removing the children beyond
Harris County” without authorization is just one way in which Katy could interfere
with Luc’s possession of the children. I would hold that this particular means of
interfering with Luc’s possession was raised by Katy’s pleading, and the question
of whether the trial court should enjoin Katy from using other means to interfere
with Luc’s possession of the children was tried by consent as discussed below.

                                         4
B.    Matters Tried by Consent

      In Luc’s live pleadings at the time of trial, he asked the trial court “to
determine whether there is a risk of international abduction of the children by
[Katy] and to take such measures as are necessary to protect the children.”
Although Luc did not cite the specific statute in his petition, this is a request for the
trial court to make a determination under Texas Family Code section 153.501.
This statute, entitled “Necessity of Measures to Prevent International Parental
Child Abduction,” provides in pertinent part as follows:

      In a suit, if credible evidence is presented to the court indicating a
      potential risk of the international abduction of a child by a parent of
      the child, the court, on its own motion or at the request of a party to
      the suit, shall determine under this section whether it is necessary for
      the court to take one or more of the measures described by Section
      153.503 to protect the child from the risk of abduction by the parent.
TEX. FAM. CODE ANN. § 153.501(a) (West 2008). The measures to protect the
child from the risk of abduction may include the following:

      prohibiting the parent and anyone acting on the parent’s behalf from
      removing the child from Texas or the United States;
      requiring the parent to surrender any passport issued in the child’s name,
      including a passport issued in the name of both the parent and the child;
      prohibiting the parent from applying for a new or replacement passport or
      international travel visa for the child;
      requiring the parent to provide written notice of the child’s passport and
      travel restrictions to the U.S. Department of State’s Office of Children’s
      Issues and the relevant foreign consulate or embassy;
      requiring the parent to provide these same governmental offices with an
      authenticated copy of the court order detailing the restrictions and
      documentation of the parent’s agreement to the restrictions;
      requiring the parent to provide proof to the court that these governmental
      offices received such written notices;
      including in the court’s order a provision identifying the United States as the
                                           5
       child’s country of habitual residence; and
       including a statement that a party who violates the order may be subject to
       civil or criminal penalties or both.2
Id. § 153.503(4), (5), (8)(A), (8)(C).

       In a proper case, a trial court could impose restrictions such as those
described above even in the absence of pleadings or a motion requesting such
relief. See id. § 153.501 (“[I]f credible evidence is presented . . . , the court, on its
own motion . . . shall determine under this section whether it is necessary for the
court to take one or more of the measures described . . . .”) (emphasis added); see
also TEX. R. CIV. P. 301 (providing that the court’s judgment must conform to the
pleadings and “the nature of the case proved,” and award the prevailing party “all
the relief to which he may be entitled either in law or equity”). Here, however, the
trial court specifically stated in its written rendition that “the court is unable to find
that credible evidence has been presented indicating a potential risk of the
international abduction of the children by a parent.”

       In general, a trial court must not grant injunctive relief that is not prayed for.
Holubec v. Brandenberger, 111 S.W.3d 32, 39 (Tex. 2003). Under the Texas
2
  One such criminal penalty would be conviction of the offense of interference with child
custody. See TEX. PENAL CODE ANN. § 25.03 (West Supp. 2012). That statute provides in
relevant part as follows:
       (a)    A person commits an offense if the person takes or retains a child younger
              than 18 years of age :
              (1)    when the person knows that the person’s taking or retention
                     violates the express terms of a judgment or order, including a
                     temporary order, of a court disposing of the child’s custody;
                                                   ...
              (3)    outside of the United States with the intent to deprive a person
                     entitled to possession of or access to the child of that possession or
                     access and without the permission of that person.
Id. In the final decree of divorce, Katy was permanently enjoined from interfering with Luc’s
possession of the children.

                                               6
Rules of Civil Procedure, pleadings must give reasonable notice of the claims
asserted. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354–55 (Tex.
1995). A reviewing court should liberally construe the petition to contain any
claims that reasonably may be inferred from the specific language used in the
petition and uphold the petition as to those claims, even if an element of a claim is
not specifically alleged.    See id.   In making this determination, however, a
reviewing court cannot use a liberal construction of the petition as a license to read
into the petition a claim that it does not contain. Moneyhon v. Moneyhon, 278
S.W.3d 874, 878 (Tex. App.—Houston [14th Dist.] 2009, no pet.). The petition
must give fair and adequate notice of the claims being asserted, and, if the
reviewing court cannot reasonably infer that the petition contains a given claim,
then the court must conclude the petition does not contain such a claim, even under
a liberal construction. See SmithKline Beecham Corp., 903 S.W.2d at 354–55;
Baltzer v. Medina, 240 S.W.3d 469, 476 (Tex. App.—Houston [14th Dist.] 2007,
no pet.) (reversing trial court’s appointment of father as sole managing conservator
where such relief was neither requested nor tried by consent).

      On the other hand, if issues not raised by the pleadings are tried by express
or implied consent of the parties, these issues will be treated as if they had been
raised by the pleadings. TEX. R. CIV. P. 67; Baltzer, 240 S.W.3d at 476. Based on
my review of this record, I would hold that Katy’s counsel consented to the trial
court’s determination of appropriate permanent injunctive relief.

      On the first day of trial, even before voir dire, the trial court and parties’
attorneys discussed Luc’s proposed jury charge concerning international
kidnapping.   Luc’s counsel argued that the trial court should ask the jury to
determine whether there is a risk of international abduction of a child by a parent
of the child. Katy’s counsel argued,

                                          7
       When you get into rights and duties and injunctions and restraints and
       so on and so forth, . . . those are Judge functions and not jury
       functions . . . . At most this is subsumed in the questions of the jury
       deciding whether to appoint him or her as sole managing conservator.
       It is also subsumed in the consideration of whether or not to restrict
       domicile or geographic location.
The trial court sustained the objection to the submission of a jury question
concerning the risk of international abduction. Thus, even before any evidence
was heard, Katy’s counsel took the position that if the jury found that Luc should
be appointed sole managing conservator, then the trial court would determine
whether injunctions and restraints, if any, were appropriate.3                  The trial court
agreed, and the jury did find that Luc should be appointed sole managing
conservator. As expected, the trial court then addressed the questions of what
findings should be made and what injunctive relief, if any, should be included in
the judgment. I would hold that the injunction issue was tried by consent.

       In all other respects, I agree with the majority’s analysis.




                                             /s/       Tracy Christopher
                                                       Justice



Panel consists of Justices Boyce, Christopher, and Jamison (Jamison, J., majority).




3
  The jury was asked to determine whether the children’s residence should be restricted to a
specific geographic location only if it first found that (1) both parents should be appointed joint
managing conservators, and (2) one parent should have the exclusive right to designate the
children’s primary residence. Because the jury found that Luc should be appointed sole
managing conservator, it did not reach the question of whether the geographic location of the
children’s primary residence should be restricted.

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