MEMORANDUM OPINION

No. 04-10-00541-CV

IN THE INTEREST OF M.B.B-Y.

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 98-CI-16712

Honorable Janet P. Littlejohn, Judge Presiding1

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice

Karen Angelini, Justice

Marialyn Barnard, Justice

Delivered and Filed: April 6, 2011

REVERSED AND REMANDED

Bassam Bani-Yassin appeals the trial court’s order modifying prior orders governing 

Bassam’s visitation with his daughter, M.B.B-Y. Although Bassam lists two separate points of 

error in his brief, the crux of his complaint is that the trial court’s order was not supported by 

proper pleadings. Because we conclude that the trial court erred in granting a modification that 

was not supported by proper pleadings, we reverse the trial court’s order and remand the cause to 

the trial court for further proceedings.

 1 The Honorable Antonia Arteaga presided over the hearing and rendered the ruling contained in the order being 

appealed. The Honorable Janet P. Littlejohn ministerially signed the order.
04-10-00541-CV

- 2 -

BACKGROUND

Bassam and Catherine Sue Bani-Yassin were divorced in 2001. The divorce decree 

contained provisions governing Bassam’s visitation with M.B.B-Y. The trial court subsequently 

signed Extended Temporary Orders based on a hearing held on December 3, 2003. The 

Extended Temporary Orders contain provisions governing Bassam’s visitation with M.B.B-Y. 

On July 8, 2004, the trial court signed Extended Temporary Orders Nunc Pro Tunc.

On April 26, 2005, Catherine filed a Second Motion to Modify Temporary Orders 

requesting a modification of the December 3, 2003 orders. The fiat shows the motion was set for 

a hearing on May 3, 2005. On May 13, 2005, Bassam filed a Motion to Modify Temporary 

Orders. The fiat shows the motion was set for a hearing on May 19, 2005.

On March 24, 2006, Catherine filed a Motion for Additional Temporary Orders. The fiat 

shows the motion was set for a hearing on March 31, 2006. On March 27, 2006, Bassam filed a 

Motion for Additional Temporary Orders. The fiat shows the motion was set for a hearing on 

March 31, 2006. The clerk’s record also contains an Order to Appear directing Catherine to 

appear and respond to a Motion for Enforcement on March 31, 2006.

On May 13, 2010, Bassam filed a Motion for Enforcement and Order to Appear, seeking 

to enforce the prior orders governing his visitation with M.B.B-Y. The clerk’s record contains 

an Order to Appear directing Catherine to appear and respond to a Motion for Enforcement on 

May 28, 2010. On June 17, 2010, the trial court signed an order which states that it was 

judicially rendered on May 28, 2010; however, the introductory paragraph of the order states that 

a hearing on Bassam’s “Motion for Enforcement and Order to Appeal” was held on May 26, 

2010. The order also states that Catherine “filed a responsive Motion with a prayer for general 

relief.” A record of the hearing was waived by agreement of the parties with the consent of the 
04-10-00541-CV

- 3 -

trial court. The order states that two prior orders governed Bassam’s visitation with M.B.B-Y., 

namely: (1) “The Decree of Divorce between the parties rendered on February 21, 2001;” and (2) 

“Extended Temporary Orders rendered on December 3, 2003.” The order contains the following 

finding: “The Court on it’s [sic] own motion and pursuant to it’s [sic] exclusive continuing 

jurisdiction finds that there has been a material and substantial change in the circumstances and 

conditions of the parties and the child such that prior orders herein should be modified and that 

such would be in the best interest of the child.” The order sets aside the prior orders governing 

access and visitation and restricts Bassam’s visitation to one lunch or dinner with M.B.B-Y. per 

month subject to various conditions.

DISCUSSION

“Texas is a ‘fair notice’ state, which means that all parties are entitled to fair notice of a 

claim.” In re Russell, 321 S.W.3d 846, 855 (Tex. App.—Fort Worth 2010, orig. proceeding 

[mand. denied]). The Texas Family Code specifically requires parties to include in their 

pleadings a “statement describing what action the court is requested to take concerning the child 

and the statutory grounds on which the request is made.” TEX. FAM. CODE ANN.

§ 102.008(a)(10) (West 2008); see also In re Russell, 321 S.W.3d at 855. Without proper 

pleadings and evidence, a trial court exceeds its authority if it modifies or reforms previous 

orders affecting the custody of a child. See In re Parks, 264 S.W.3d 59, 62 (Tex. App.—

Houston [1st Dist.] 2007, orig. proceeding); In re A.M., 974 S.W.2d 857, 861-62 (Tex. App.—

San Antonio 1998, no pet.); Ex parte Karr, 663 S.W.2d 534, 539 (Tex. App.—Amarillo 1983, 

orig. proceeding).

In her brief, Catherine argues that the pleadings filed in 2006 were pending before the 

court at the May 2010 hearing. As previously noted, however, the fiats relating to those 
04-10-00541-CV

- 4 -

pleadings show that a hearing was held on those pleadings on March 31, 2006. Moreover, the 

documents in the clerk’s record pertaining to the May 2010 hearing support Bassam’s contention 

that only his motion for enforcement was pending before the trial court. Catherine’s argument 

also is contradicted by the language of the order itself which states that Catherine filed a 

“responsive Motion with a prayer for general relief.” The clerk’s record, however, contains no 

document responsive to Bassam’s motion for enforcement. Catherine’s argument is further 

contradicted by the language of the order stating that the court based the modification on “it’s 

[sic] own motion and pursuant to it’s [sic] exclusive continuing jurisdiction,” not the 2006 

pleadings. The trial court did not have the authority, however, to sua sponte modify the prior 

orders. Instead, any modification of the prior orders was required to be supported by proper 

pleadings. See In re Parks, 264 S.W.3d at 62; In re A.M., 974 S.W.2d at 861-62; Ex parte Karr, 

663 S.W.2d at 539; see also In re S.A.A., 279 S.W.3d 853, 856 (Tex. App.—Dallas 2009, no 

pet.) (holding trial court abused its discretion in issuing order on sua sponte basis in family law 

matter). Finally, “trial by consent is a doctrine that is only intended to cover the exceptional case 

in which it clearly appears from the record as a whole that the parties tried the unpled issue.” In 

re A.B.H., 266 S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.). “It is not intended to 

establish a general rule of practice and should be applied with care, and in no event in a doubtful 

situation.” Id.; see also In re A.M., 974 S.W.2d at 862-63 (refusing to apply trial-by-consent

principles in reviewing order modifying custody). In this case, the hearing was never recorded, 

so no record exists to support an argument that the modification issue was tried by consent. 

Moreover, the order itself states the trial court based the modification “on it’s [sic] own motion,” 

not on trial by consent.
04-10-00541-CV

- 5 -

CONCLUSION

Because the trial court’s order was not supported by proper pleadings, the order is 

reversed, and the cause is remanded to the trial court for further proceedings.

Catherine Stone, Justice