Bjorgo v. Bjorgo

Decision Date03 May 1965
Docket NumberNo. 7462,7462
PartiesDonald BJORGO, Appellant, v. Marie BJORGO, Appellee.
CourtTexas Court of Appeals

Wayne B. Barfield, Amarillo, for appellant.

Dee Miller, Dist. Atty., B. G. Compton and John B. Reese, Asst. Dist. Attys., Amarillo, for appellee.

CHAPMAN, Justice.

This is an appeal from a summary judgment granted Marie Bjorgo against Don Bjorgo brought under the Texas Enforcement of Support act, Article 2328b-1 et seq., Vernon's Ann.Civ.Tex.St.

On May 26, 1954, in the State of Kentucky, a judgment was awarded for Marie Bjorgo against Don Bjorgo finding him to be the father of an illegitimate child born to her and requiring him to contribute $10.00 each week to the support of said child for sixteen years.

All parties by brief appear to agree that the State of Kentucky has a statute known as the Bastardy Act, which requires a father to support an illegitimate child. The judgment mentioned in the preceding paragraph was rendered under such statute and appellee brought suit in the trial court of this state to have the Kentucky bastardy judgment enforced under our Enforcement of Support act, Article 2328b-1 et seq., V.A.T.S. Both sides filed motions for summary judgment. The trial court overruled Don Bjorgo's motion for summary judgment, refused him a trial on the merits, and granted the motion of Marie Bjorgo, awarding her a judgment requiring Don Bjorgo to contribute $10.00 per week to the support of the illegitimate child until she reaches the age of eighteen years.

Though this appears to be a first impression case in Texas under a Bastardy Act of another state brought under the Enforcement of Support act of Texas, we do not believe it to be a first impression case under the rules of law applicable.

At common law the father was under no legal obligation for the support and maintenance of his illegitimate children. In Lane v. Phillips, 69 Tex. 240, 6 S.W. 610, our Supreme Court has said:

* * * while they are his children in fact, the rules of the common law refuse to recognize them as his children, to impose upon him the duties and obligations which the lawful father cannot avoid, or to confer upon them the right to support and paternal care which the child begotten in wedlock has.'

The common law has not been altered in this respect by Article 602 of the Penal Code of Texas, V.A.T.S., which punishes for the neglect or refusal to provide for the support and maintenance of a child, since that provision applies only to legitimate children. Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929.

The adoption of the Texas Probate Code 1 did not change the common law because Section 3(b) of that Act provides: 'Child' * * * 'unless expressly so stated herein, does not include an unrecognized, illegitimate child of the father.' We find no place where the act expressly so states otherwise and appellant herein has denied by pleadings that he is the father of the child for whom support is sought.

In a similar situation, so far as support to an indigent parent is concerned, our Supreme Court has written upon the obligation of a son living in Texas to support his mother under a California statute so requiring, 2 the court saying: 'We concur in the holding of the Court of Civil Appeals that no recovery can be had for support furnished after respondent removed to and became domiciled in this state.' The court further held as follows:

'We are aware of no rule of law that would make the obligation a continuing one after removal from California even though it attached to him while a resident of that state. Citizens of a state equally share the burdens and privileges of citizenship regardless of when or how that status is attained. To say that the support statute compelled liability for that period of time after the respondent moved to Texas would seem to deny to him equality with other citizens of the state.' (All italics herein are ours.)

Though the Court did not cite the 14th Amendment to the Constitution of the United States for the statement just quoted, we would assume the 'equality with other citizens' clause in the opinion had reference to that amendment wherein it says: 'No State shall make or enforce any law which shall * * * deny to any person within its jurisdiction the equal protection of the laws.' If appellant, a citizen of Texas, should be required to support a child under a Bastardy Act of another state, he would not have equal protection with the other citizens of Texas who fathered an illegitimate child in Texas because there is no legal obligation for support under such circumstances in our state and our legislative enactments have apparently carefully avoided changing the common law rule stated by our Supreme Court in Lane v. Phillips, supra.

It is true that in the Copus case we had a divided court but so far as the rule of stare decisis obligates that court, they are found by the majority opinion regardless of change in personnel on the court. It is also true that petitioner in that case did not bring its suit under the provisions of our Enforcement of Support act. However, the dissenting opinion stated: '* * * all that is required to have been done or which could have been done by the certifying court in California under the Support Act has been directly accomplished and proved in the Texas district court. * * * So here, in my opinion, we have the substance of the Uniform Support Act * * *.' The dissenting opinion also confirmed that the majority held that to require Copus to contribute to the support of his mother would be to deny him the equal protection of the laws. The dissent also stated: 'Both Texas and California have statutes authorizing the court to require support of parents. 3 Moreover, if the Uniform Support Act had been invoked and followed here, and a recovery allowed under it, that Constitutional point would be the same.' Thus, most of the dissent reasons given in Copus would not be applicable to the instant case.

The dissenting opinion in Copus also stated: 'Texas should not become a haven for deserting provides who would ignore or repudiate their duty to support.' We agree. To alleviate that problem, so far as the requirement of a citizen of this state to support an illegitimate child in another state is concerned, all that would be necessary to change such haven would be for the legislature of Texas to pass a law requiring such support.

Section 7 of our Texas Enforcement of Support act, heretofore cited, provides in part that duties of support enforceable under such act are those imposed or imposable under the laws of any state where the alleged obligor was present during the period for which support is sought or where the obligee was present when the failure to support commenced, at the election of the obligee.

The obligee here selected the initiating state but did not seek to enforce those payments which had become absolute, final and vested. Section 13 of the act provides: 'If the court of the responding state finds a duty of support, it may order the defendant to furnish support or reimbursement therefor and subject the property of the defendant to such order.' Had appellee proceeded under the last clause of Section 13 requiring reimbursement for accumulated payments, the question would be more serious if proof had been made that the Bastardy Act of Kentucky does not operate retrospectively, as we shall later see.

We believe it cannot be denied that Section 7 and the first clause of Section 13 of our Enforcement of Support act are repugnant to the protection of the equal rights clause of the 14th Amendment to the Constitution of the United States from the manner in which it is sought to be imposed in the instant case. We thus are presented with the question of whether a state law may be given precedence over the Constitution of the United States. We believe that question was settled in 1803 in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L.Ed. 60. That court speaking through Chief Justice Marshall said:

'It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

'Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

'So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

'If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

'Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.'

It is true we are faced with the full faith and credit clause of Article 4 of the Constitution of the United States. Our Supreme Court in Guercia v. Guercia, 150 Tex. 418, 241 S.W.2d 297, refrained from passing on whether that clause applies in cases under the Reciprocal Support Act.

It appears to be settled law that in enforcing foreign judgments the full faith and credit clause applies only where the right sought to be imposed has become absolute and vested. Criteser v. Gaffey, Com.App., 222 S.W. 193. It becomes absolute, final and vested...

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5 cases
  • Mills v. Habluetzel
    • United States
    • U.S. Supreme Court
    • April 5, 1982
    ...See Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965); Lane v. Phillips, 69 Tex. 240, 6 S.W. 610 (1887); Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex.Civ.App.1965). A natural father could even assert illegitimacy as a defense to prosecution for criminal nonsupport. See Curtin v. State, ......
  • S. v. D.
    • United States
    • U.S. District Court — Northern District of Texas
    • November 1, 1971
    ...2d 187 (1950); L___ G___ v. F___ O. P___, 466 S.W.2d 41 (Tex.Civ.App.— San Antonio 1971, writ ref'd n. r. e.); Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex. Civ.App.—Amarillo 1965). 3 Munn v. Munn, 450 P.2d 68 (Colo. 1969); Storm v. None, 57 Misc.2d 342, 291 N.Y.S.2d 515 4 Strahan v. Strahan, 304 ......
  • Gomez v. Perez
    • United States
    • U.S. Supreme Court
    • January 17, 1973
    ...also Home of the Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965); Lane v. Phillips, supra, at 243, 6 S.W., at 611; Bjorgo v. Bjorgo, 391 S.W.2d 528 (Tex.Civ.App.1965). It is also true that fathers may set up illegitimacy as a defense to prosecutions for criminal nonsupport of their childre......
  • Bjorgo v. Bjorgo, A--10906
    • United States
    • Texas Supreme Court
    • April 13, 1966
    ...the defendant's motion for summary judgment should have been granted and judgment rendered that the plaintiff take nothing by her suit. 391 S.W.2d 528. We reverse the judgment of the Court of Civil Appeals and affirm the judgment of the trial The admitted or uncontroverted facts established......
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