                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-12-00120-CV




       IN THE INTEREST OF P.M.G., A CHILD




        On Appeal from the County Court at Law
                 Bowie County, Texas
            Trial Court No. 05D1047-CCL




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                        OPINION

I.     Background

       When Dorenda and Bruce Garner, Jr., were divorced in 2005, they were appointed joint

managing conservators of their only child, P.M.G., with Dorenda having the “exclusive right to

designate the primary residence of the child without regard to geographic location.” Under the

final divorce decree, Dorenda was required to provide Garner with thirty days’ notice via

certified mail before moving. The decree required Garner to pay child support to Dorenda, and

Dorenda was ordered to include P.M.G. on her health insurance available through her employer.

Conversely, Garner was ordered to pay Dorenda the actual cost of the health insurance for

P.M.G. as additional child support, in the amount of $120.00 per month.

       In 2011, Dorenda made plans to attend Texas Woman’s University in Denton. She

notified Garner by certified mail, as required by the final decree, thirty days prior to her move, of

her intent to move and to change the child’s residence. Having learned of Dorenda’s intent to

move to Denton with P.M.G., Garner filed a motion to modify the parent-child relationship,

seeking the right to determine P.M.G.’s primary residence. The motion to modify also asked the

trial court to issue a temporary order to restrict the primary residence of P.M.G. to Bowie

County, Texas, among other things. Dorenda answered and filed a counter-petition to modify

the parent-child relationship, asking the court to increase child support payments. In an amended

counter-petition, Dorenda also requested judgment for all support arrearages, together with

additional modification of the support order. Garner thereafter filed a petition to modify medical




                                                 2
support, asking for a credit on medical support payments made during an approximate two-year

period when the child was uninsured.

            After a hearing, the trial court issued a modification order which, among other things,

(1) restricted P.M.G.’s primary residency to the Texarkana Independent School District, the

Pleasant Grove Independent School District, the Redlick Independent School District, or the

Liberty-Eylau Independent School District, Bowie County, Texas (for geographical purposes),

(2) increased child support, and (3) found that because Dorenda did not provide medical

insurance for P.M.G. from July 2009 through July 2011, Garner was entitled to a credit for

medical insurance payments ordered and accrued from July 2009 through October 2012,

including interest on any unpaid premiums. 1

            On appeal, Dorenda claims (1) the trial court had no authority to impose a geographic

residency restriction because it failed to find a material and substantial change in circumstances,

(2) there was insufficient evidence of a material and substantial change in circumstances to

impose a geographic residency restriction, (3) the trial court erred by giving Garner a credit

against a portion of his child support arrearage, and (4) the trial court abused its discretion by

imposing a permanent geographic residency restriction when Garner petitioned only for a

temporary restriction.




1
    While a request for findings of fact and conclusions of law was made, none were filed.
                                                            3
II.    Analysis

       A.      Standard of Review

       We review the trial court’s decision to modify conservatorship under an abuse of

discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). “A trial court

abuses its discretion only when it has acted in an unreasonable or arbitrary manner, or when it

acts without reference to any guiding principle.” In re Marriage of Jeffries, 144 S.W.3d 636,

638 (Tex. App.—Texarkana 2004, no pet.) (citing Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985)). Under this standard, legal and factual sufficiency are not

independent grounds for asserting error, but are relevant factors in determining whether the trial

court abused its discretion. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no

pet.); In re Davis, 30 S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.). In determining

whether the trial court abused its discretion, we consider whether the trial court had sufficient

evidence upon which to exercise its discretion and, if so, whether it erred in the exercise of that

discretion. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). We consider

only the evidence most favorable to the trial court’s ruling and will uphold its judgment on any

legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)

(per curiam); Niskar, 136 S.W.3d at 753–54. Where, as here, no findings of fact and conclusions

of law are filed, it is “implied that the trial court made all the findings necessary to support its

judgment.” Worford, 801 S.W.2d at 109.

       We are mindful that “the trial judge is best able to observe and assess the witnesses’

demeanor and credibility, and to sense the ‘forces, powers, and influences’ that may not be

                                                 4
apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex.

App.—Houston [14th Dist.] 2009, no pet.). We, therefore, defer to the trial court’s judgment in

matters involving factual resolutions and any credibility determinations that may have affected

those resolutions. George v. Jeppeson, 238 S.W.3d 463, 468 (Tex. App.—Houston [1st Dist.]

2007, no pet.).

         B.       Material and Substantial Change in Circumstances

         Dorenda initially complains that the trial court failed to specifically find a material and

substantial change in circumstances to support the permanent geographic residency restriction

and that in any event, there was insufficient evidence to support an implied finding of a material

and substantial change in circumstances. 2              The Texas Family Code sets forth “significant

hurdles” before a conservatorship order may be modified. A.L.E., 279 S.W.3d at 428. A court

may modify a conservatorship order “that provides for the appointment of a conservator of a

child, that provides the terms and conditions of conservatorship, or that provides for the

possession of or access to a child if modification would be in the best interest of the child” and


2
 Dorenda filed a motion for new trial complaining of the geographic residency restriction and the child support
credit; however, she withdrew this motion before the trial court ruled on it. Dorenda did not object (in the
withdrawn motion for new trial or otherwise) to the trial court’s failure to make an express finding of a material and
substantial change in circumstances. She relies on Rule 33.1(d) of the Texas Rules of Appellate Procedure to show
error preservation on this issue. TEX. R. APP. P. 33.1(d). That Rule, however, only permits a challenge to the legal
or factual sufficiency of the evidence for the first time on appeal in a nonjury case. The Rule provides:

         In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence—
         including a complaint that the damages found by the court are excessive or inadequate, as
         distinguished from a complaint that the trial court erred in refusing to amend a fact finding or to
         make an additional finding of fact—may be made for the first time on appeal in the complaining
         party’s brief.

TEX. R. APP. P. 33.1(d). We, therefore, limit our review of this issue to a determination of whether the evidence is
sufficient to support an implied finding of material and substantial change in circumstances.
                                                          5
“the circumstances of the child, a conservator, or other party affected by the order have

materially and substantially changed” since the date of the rendition of the 2005 divorce decree.

TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (West Supp. 2012). If the moving party does not

establish a material and substantial change in circumstances from the date of the decree, the trial

court must deny the petition. 3 A.L.E., 279 S.W.3d at 428.

            The motion to modify simply alleged that “[t]he circumstances of the child, a

conservator, or other party affected by the order to be modified have materially and substantially

changed since the date of rendition of the order to be modified”; no detail was provided. At the

modification hearing, the evidence revealed that P.M.G. resided with Dorenda in Bowie County

until August 1, 2011, when the two moved to Denton. While residing with Dorenda in Bowie

County, P.M.G. completed kindergarten and first grade at Morriss Elementary School. 4 Garner

testified that Dorenda did not always have P.M.G. to school on time, and he was concerned that

tardiness would endanger P.M.G.’s ability to remain at Morriss. Garner was also concerned

because P.M.G.’s homework was not always returned the next day, and she was removed from

the honor roll because she was not wearing tennis shoes to physical education class.

            While living in Texarkana, P.M.G. was involved in several extracurricular activities,

including dance, soccer, and Girl Scouts. Garner and his wife were involved in these activities



3
 The modification order specifically found that the residency restriction, which became effective June 15, 2012, was
in the best interest of P.M.G. Dorenda does not challenge this finding. Her initial points of error speak only to the
issue of a material and substantial change in circumstances. While Dorenda’s brief includes a listing of factors that
bear on the determination of a child’s best interest in the context of residency restrictions and relocation, she does
not analyze these factors within the context of a best interest analysis and does not request that we do so.
4
    P.M.G. was in second grade at the time of the modification hearing in April 2012.
                                                            6
and often drove P.M.G. to and from her various activities. These local activities ceased after the

move, although P.M.G. took piano lessons in Denton.

            In Texarkana, P.M.G. had a strong family support network. Her grandparents, uncles,

aunts, and cousins live in the area. Neither Garner nor Dorenda have family in Denton.

            Dorenda explained that she moved to Denton to attend nursing school at Texas Woman’s

University. Dorenda’s ultimate goal was to enroll in the certified nurse mid-wife program at

Baylor or in Dallas. She felt that she would have a better chance of admission to such a program

if she received her degree from Texas Woman’s University rather than Texarkana Community

College. The motivation to return to school was financial—Dorenda wanted to be in a position

to better provide for her children. 5

            Once in Denton, Dorenda enrolled P.M.G. at Newton Rayzor Elementary School. While

attending Newton Rayzor, P.M.G.’s number of late arrivals to class increased. This issue was

addressed at a parent-teacher conference in October. Although Dorenda had P.M.G. tested for

the school’s gifted and talented program, P.M.G. did not qualify.

            On one occasion, Dorenda failed to pick up P.M.G. from school. She explained that

during the afternoon, she had become sick and had gone home to rest. When she awoke, she had

a message on her telephone from a friend, who had retrieved P.M.G. from school.

            Dorenda concedes that she smoked cigarettes three times in the car while P.M.G. was a

passenger and admitted to her son’s father that she slapped P.M.G. in the face on one occasion.




5
    In addition to P.M.G., Dorenda has a younger son. Garner is not the father of this child.
                                                             7
Dorenda did not testify regarding this allegation. She conceded that she allowed her boyfriend to

spend the night with her at the home in Denton while P.M.G. was present.

         Since the time of the move, the parties have been meeting halfway between Texarkana

and Denton to exchange P.M.G. and represented to the court that this arrangement was “working

fine.”

         Dorenda maintains this evidence fails to show a material and substantial change in

circumstances, claiming a move alone cannot support such a conclusion, citing Bates v. Tesar, 81

S.W.3d 411 (Tex. App.—El Paso 2002, no pet.). In Bates, the court stated,

         [W]e do not hold that relocation, regardless of distance, will suffice to establish a
         material and substantial change in circumstances. But if the custodial parent
         moves a significant distance, a finding of changed circumstances may be
         appropriate.

Id. at 430.

         Moving a child from one location to another generally results in some change of the

circumstances of the child or parents.             The issue is whether such change is material and

substantial. Some moves, depending on distance and other factors, may not materially alter or

interfere with the relationship of the conservators with the child. 6 Deciding whether the move

causes a substantial and material change requires intensive examination of the facts of each case.

Factors to be considered in such a determination include the distance involved, the quality of the

relationship between the noncustodial parent and the child, the nature and quality of the child’s

contacts with the noncustodial parent, whether the relocation would deprive the noncustodial
6
 We recognize that in today’s world of instant communication by smart phones, internet access, texting, and even
conversations allowing visual display, it is more convenient for parents to have ongoing contact with their children,
even at great distances. While new technology provides better forms of communication, it cannot completely
substitute for personal contact between a parent and child.
                                                         8
parent of regular and meaningful access to the child, the impact of the move on the quality and

quantity of the child’s contact with the noncustodial parent, the motive for the move, the motive

for opposing the move, the feasibility of preserving the relationship between the noncustodial

parent and the child through suitable visitation arrangements, and the proximity, availability, and

safety of travel arrangements. Id. We consider the court’s decision with these factors in mind.

See In re A.C.S., 157 S.W.3d 9, 23 (Tex. App.—Waco 2004, no pet.).

        We take judicial notice of the distance between Texarkana and Denton as 191 miles. 7

While this distance is not so great as to impede regular visitation by Garner, it is significant.

P.M.G. and her father were very close during the time she lived in Texarkana. Garner was the

leader of P.M.G.’s Daisy Girl Scout troop and coached her soccer team. He helped P.M.G. with

her homework and ate lunch with her at school once each week. Charlene Raney, who was

designated to perform a home study on both Garner and Dorenda, testified that P.M.G. was more

closely bonded to Garner. After the move, Garner continued to have access to P.M.G. in

accordance with the visitation schedule, but the extent of actual access was significantly

diminished, as Garner could no longer continue his involvement in P.M.G.’s daily school and

extracurricular activities. Even so, Garner has made an effort to remain actively involved in

P.M.G.’s life.      Garner presented evidence that since the move, Dorenda has had planned

activities for P.M.G. during Garner’s time of access to the child.




7
 Although the distance between the two cities is not included in the record, we may take judicial notice of the
location of “cities, counties, boundaries, dimensions, and distances because geographical facts such as these are
easily ascertainable and capable of verifiable certainty.” Butts Retail, Inc. v. Diversifoods, Inc., 840 S.W.2d 770,
774 (Tex. App.—Beaumont 1992, writ denied).
                                                         9
       When P.M.G. lived in Texarkana, Garner paid for her extracurricular activities because

he was involved with her in those activities. Moreover, when P.M.G. lived in Texarkana, Garner

and his extended family were always nearby and often helped when P.M.G. had to leave school

for illness. Before she started kindergarten, P.M.G.’s grandparents cared for her during the week

while Dorenda worked.

       Dorenda justified the move for financial reasons. With a nursing degree, she would be in

a position to better provide for P.M.G. There is evidence, however, that Dorenda’s primary

focus while in Denton was on her schooling. Raney testified that Dorenda lacked the income to

properly support P.M.G. and did not make P.M.G. a priority in her life; she, therefore,

recommended that Dorenda not have the ability to determine P.M.G.’s primary residence. Raney

also found unacceptable the fact that Dorenda’s boyfriend spent the night at her home while

P.M.G. was present. Garner opposed the move because there is no network of family and friends

in Denton, as there is in Texarkana, and because he could be more fully involved in P.M.G.’s life

if she lived in Texarkana.

       On the facts presented, we conclude that the trial court did not abuse its discretion in

impliedly finding a material and substantial change in circumstances since the entry of the

divorce decree.    The trial court likewise did not abuse its discretion in finding that the

modification ordered was in the best interest of the child.

       C.      Child Support Arrearage Credit

       The final decree required Dorenda to include P.M.G. on her health insurance available

through her employer. Conversely, Garner was ordered to pay Dorenda the actual cost of the

                                                 10
health insurance for P.M.G. as additional child support, in the amount of $120.00 per month. In

Dorenda’s amended counter-petition, she alleged that Garner was in arrears in payment of

medical support and asked the trial court to hold him in contempt and confirm a judgment for the

arrearages. Garner responded that Dorenda had ceased providing medical insurance for the child

in July 2009 and that he should be given credit for amounts accrued for medical support from

July 2009 until October 2011. In its modification order, the trial court gave Garner a “credit for

medical insurance payments ordered and accrued from July, 2009, through October, 2012,

including interest accrued on any unpaid premiums.” Dorenda contends this credit is improper

because it (1) allows Garner to receive a retroactive credit and reduction in his arrearage in

violation of Section 157.263(b-1) of the Texas Family Code and (2) modifies the support order

prior to the date of service of citation or appearance on the modification motion in violation of

Section 156.401(b) of the Texas Family Code.

       Garner claims these points of error have not been preserved for our review. To preserve

a complaint for appellate review, a party must have presented to the trial court a timely request,

objection, or motion that states the specific ground for the desired ruling, if they are not apparent

from the context of the request, objection, or motion. TEX. R. APP. P. 33.1(a). If a party fails to

do this, error is not preserved, and the complaint is waived. Bushell v. Dean, 803 S.W.2d 711,

712 (Tex. 1991) (per curiam).




                                                 11
        Dorenda complained of these issues in her motion for a new trial or to amend the

judgment. 8     However, before the expiration of the trial court’s plenary power 9 and before

Dorenda’s motion was ruled on by the trial court, Dorenda withdrew her motion. Because the

motion was withdrawn over thirty days after the trial court signed the modification order, the

immediate effect was to cause the trial court to lose plenary power over the case. See Rogers v.

Clinton, 794 S.W.2d 9, 11 (Tex. 1990) (right to withdraw motion for new trial is absolute and

deprived trial court of authority to set aside default judgment and order new trial); see also TEX.

R. CIV. P. 329b(d) (“The trial court, regardless of whether an appeal has been perfected, has

plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within

thirty days after the judgment is signed.”). In addition to divesting the trial court of plenary

power, the withdrawal of the motion for new trial effectively withdrew Dorenda’s challenge to

the credit. See generally Lemos v. State, 27 S.W.3d 42, 47 (Tex. App.—San Antonio 2000, pet.

ref’d) (holding that counsel’s comment, “I withdraw my objection to that” waived any complaint

on appeal); see also Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex.

2007) (per curiam) (“Error is waived if the complaining party allows the evidence to be

introduced without objection.”); TEX. R. APP. P. 33.1.




8
 In her motion for a new trial, Dorenda alleged that “this credit violated Texas Family Code [S]ections 156.401(b)
and 157.263(b-1) and other controlling law by allowing the Petitioner to receive such a retroactive credit and
reduction in his arrearage. Accordingly, good cause supports granting a new trial or modifying the judgment on this
basis.”
9
 The modification order was signed on December 3, 2012, and the motion for new trial was filed on December 19,
2012. Rule 329b(c) provides that a motion for new trial is overruled by operation of law seventy-five days after the
judgment is signed if the motion is not determined by written order before that time. TEX. R. CIV. P. 329b(c). The
motion for new trial was formally withdrawn on February 8, 2013.
                                                        12
            Because the motion for new trial was withdrawn, the record must indicate some other

means of preservation of this issue for our review. In October 2012, the trial court held a hearing

to clarify a letter ruling issued prior to the entry of the modification order. 10 At that time,

Dorenda objected

            to a modification of anything prior to the filing date of the petition in this current
            action which was July 22nd, 2011 pursuant to Texas Code 157.008, and I think
            the court will find there [sic] requires affirmative pleadings in regard to
            enforcement action before requesting an offset or something, and as far as I know
            there is no affirmative pleadings [sic] on record.

The trial court overruled this objection. This objection preserves the complaint that the trial

court allowed a modification of the support order prior to July 22, 2011, in violation of Section

156.401(b).        See TEX. FAM. CODE ANN. § 156.401(b) (West Supp. 2012).                          However, the

objection does not preserve a complaint that a retroactive credit against child support arrearages

was given in violation of Section 157.263(b-1). See TEX. FAM. CODE ANN. § 157.263(b-1) (West

Supp. 2012). Therefore, we will consider whether the trial court violated Section 156.401(b). It

provides:

            (b)    A support order may be modified with regard to the amount of support
            ordered only as to obligations accruing after the earlier of:

                    (1)      the date of service of citation; or

                    (2)      an appearance in the suit to modify.

TEX. FAM. CODE ANN. § 156.401(b). 11


10
 Evidently, the letter ruling (which is not a part of the appellate record) addressed all issues relating to Garner’s
motion to modify but failed to address Dorenda’s motion to enforce and to modify child support.
11
     Retroactive support was not awarded.
                                                        13
       At the hearing, Garner’s attorney stated that Garner had paid all arrearage completely

“minus the amount between June of 2009 and October of 2011.” This statement was not

disputed. After hearing the presentations of the parties, the trial court stated that since it was

undisputed that no insurance coverage was provided from July 2009 until June 2011, “the court

is going to not order Mr. Garner to reimburse that windfall amount.” The judgment ordered that

Garner was “given credit for medical insurance payments ordered and accrued from July, 2009,

through October, 2012 . . . .”

       Here, the trial court was considering whether to enter a judgment of arrearage against

Garner, but upon receiving information that all arrearage was paid except the medical support

during a time that Dorenda had no medical insurance, the trial court modified the amount of

medical support Garner owed since Dorenda had not provided the insurance and therefore had

not incurred the medical insurance expense. The Texas Family Code only allows a modification

of support after the earlier of the date of service of citation or an appearance in the suit to

modify. TEX. FAM. CODE ANN. § 156.401(b). Consequently, the trial court erred in modifying

the amount of support before July 22, 2011. Generally, we could modify the judgment to reflect

the correct amount, but here we do not have definite figures on what amount of money Garner

was in arrears for payment of medical support. We necessarily will have to remand this issue to

the trial court to determine the amount Garner is obligated for medical support arrearage due

before July 22, 2011.




                                               14
        D.       Sufficient Pleadings Support the Trial Court’s Order

        The trial court found that it was in the best interests of P.M.G. to modify the final decree

to restrict “[t]he child’s residency [] to the Texarkana Independent School District, the Pleasant

Grove Independent School [District], the Redlick Independent School District or the Liberty[-]

Eylau Independent School District, Bowie County, Texas (for geographical purposes not

enrollment purposes).” Dorenda complains that because Garner did not plead for a permanent

residency restriction, the relief granted exceeds that which was requested.

        Garner contends this complaint was waived under Rule 90 of the Texas Rules of Civil

Procedure, which requires that a party specially except to pleading defects. See TEX. R. CIV. P.

90. Dorenda’s complaint is that the judgment is not supported by the pleadings, which does not

relate to a pleading defect encompassed by Rule 90. Moreover, Dorenda claims that any part of

the judgment not supported by the pleadings is void and, thus, the need to complain of such a

defect is not required. 12 For this proposition, she relies on Hubbard v. Lagow, 576 S.W.2d 163,

166 (Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.) (pleadings invoke trial court’s jurisdiction to

render judgment, and part of judgment not supported by pleadings is void); see also In re Estate

of Bean, 206 S.W.3d 749, 759 (Tex. App.—Texarkana 2006, pet. denied) (judgment not

supported by pleadings and evidence cannot stand; judgment not supported by pleadings is

considered void).       To determine this issue, we must address the substance of Dorenda’s

complaint.


12
 Dorenda complained of the permanent residency restriction in her motion for new trial, which was subsequently
withdrawn. Garner contends the withdrawal of this motion, assuming it was timely in the first place, amounts to a
waiver of the issue presented.
                                                       15
         Garner’s petition to modify the parent-child relationship requested a modification of

conservatorship. Specifically, Garner asked “that he be appointed as the person who has the

right to designate the primary residency of the child.” Garner further requested temporary orders

(1) appointing “Petitioner and Respondent” as “temporary joint managing conservators,”

(2) naming Petitioner “as the conservator who has the exclusive right to designate the primary

residence of the child,” and (3) restricting P.M.G.’s primary residence to Bowie County, Texas.

         The trial court entered a modification order permanently restricting the child’s

geographic residence. 13 The order did not otherwise modify the original provision of the decree

giving Dorenda the exclusive right to designate P.M.G.’s primary residence. 14 In essence, the

trial court modified Dorenda’s exclusive right to designate the primary residence of P.M.G. with

the imposition of the geographic residency restriction.                  The sole request for a geographic

residency restriction was set forth in paragraph ten of Garner’s motion to modify, expressly as a

request for a temporary order. Garner did not seek a permanent residency restriction.

         Rule 301 of the Texas Rules of Civil Procedure provides that “[t]he judgment of the court

shall conform to the pleadings, the nature of the case proved and the verdict, if any, and shall be

so framed as to give the party all the relief to which he [or she] may be entitled either in law or




13
  On October 11, 2011, the trial court held a hearing on the request for temporary orders. At the hearing, the parties
agreed to a home study for Dorenda and Garner. They further agreed that medical insurance payments being made
by Garner should cease as of the day of the hearing and that the visitation schedule should remain in place until the
final hearing. The parties were meeting halfway between Texarkana and Denton to exchange the child and
represented to the court that this arrangement was “working fine.” The trial court approved of these agreements, but
a formal order was not entered.
14
 As previously noted, the final decree gave Dorenda the exclusive right to designate the primary residence of the
child, free of geographic restriction.
                                                         16
equity.” TEX. R. CIV. P. 301. 15 Because the party’s pleadings invoke the trial court’s jurisdiction

to render a judgment, an order not supported by the pleadings is void for lack of jurisdiction.

Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.—Corpus Christi 1995, no writ); Hubbard,

576 S.W.2d at 166; Ex parte Fleming, 532 S.W.2d 122, 123 (Tex. Civ. App.—Dallas 1975, no

writ); see also Bean, 206 S.W.3d at 759. A judgment, absent issues tried by consent, must

conform to the pleadings. State v. Estate of Brown, 802 S.W.2d 898, 900 (Tex. App.—San

Antonio 1991, no writ). Relief, therefore, may not be granted in the absence of pleadings to

support that relief. Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex. 1983).

        While a trial court may not grant relief to a party in the absence of pleadings to support

such relief, pleadings may be liberally construed to support the judgment. Frost v. Sun Oil Co.

(Delaware), 560 S.W.2d 467 (Tex. App.—Houston [1st Dist.] 1977, no writ). To determine

whether a claim was pled, the court must find those pleadings adequate to state, “with reasonable

certainty” and without reference to information from another source, “the relief sought with

sufficient information upon which to base a judgment.” Stoner v. Thompson, 578 S.W.2d 679,

683 (Tex. 1979).

        In cases affecting the parent-child relationship, however, the pleading requirements are of

lesser importance. See, e.g., Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). In that case,

the petitioner sought a modification of the final decree to give him custody and control of the

child during the summer months. The high court found that this pleading was sufficient to


15
  “There are sizable exceptions” to the concept that a judgment must conform to the pleadings, “most of which have
to do with the idea that a matter may be tried by consent.” State for the Protection of Cockerham v. Cockerham, 218
S.W.3d 298, 304 (Tex. App.—Texarkana 2007, no pet.).
                                                        17
support a judgment for lesser relief in the nature of modified visitation rights with permanent

custody as previously decreed. Id. The high court stated:

         It is beside the point that . . . 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 dispositions of all matters
         comprehended thereby in a manner supported by the evidence.

Id. This Court addressed the issue of pleading requirements in In re Macalick, 13 S.W.3d 43

(Tex. App.—Texarkana 1999, no pet.).                   In that case, Thompson claimed that specific

modifications in the final order must have been requested in a pleading in order to provide her

with notice of the controverted issues to be decided and to afford her due process.                             We

recognized that “in cases affecting the parent/child relationship, when the best interest of the

child is always the overriding consideration, technical rules of pleading and practice are of little

importance, and fair notice is afforded when the pleadings generally invoke the court’s

jurisdiction over custody and control of the children.” Id. at 45 (citing Leithold, 413 S.W.2d at

701). Here, Garner sought a modification of conservatorship and asked that he be appointed as

the person who has the right to designate the primary residence of the child. This request

necessarily invoked the jurisdiction of the trial court over the matters of custody and control,

imbuing the trial court with “decretal powers” over P.M.G.’s geographic residence. 16                           See

Leithold, 413 S.W.2d at 701 (“a suit properly invoking the jurisdiction of a court with respect to




16
 Because we find the pleadings sufficient to support the trial court’s order, we do not address the issue of trial by
consent.
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custody and control of a minor child vests that court with decretal powers in all relevant custody,

control, possession and visitation matters . . . .”).

        Because the pleadings were sufficient to support the trial court’s order, the order is valid

and enforceable.

III.    Conclusion

        We remand the case to the trial court to determine the amount Garner is obligated for

medical support arrearage due before July 22, 2011.           In all other respects, we affirm the

judgment of the trial court.




                                                Jack Carter
                                                Justice

Date Submitted:         June 26, 2013
Date Decided:           July 16, 2013




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