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

C O N C U R R I N G O P I N I O N

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
2

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.
3

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 
4

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. 
5

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 
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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.
7

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, 
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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.