466 S.W.2d 41 (Tex.Civ.App.

Docket Nº:14917.
Citation:466 S.W.2d 41
Party Name:L---G---, Individually and as Next Friend of Z---G---, Appellant, v. F---O. P---, Appellee.
Case Date:March 10, 1971
Court:Court of Appeals of Texas, Court of Civil Appeals of Texas
 
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Page 41

466 S.W.2d 41 (Tex.Civ.App. —San Antonio 1971)

L---G---, Individually and as Next Friend of Z---G---,

Appellant,

v.

F---O. P---, Appellee.

No. 14917.

Court of Civil Appeals of Texas, San Antonio

March 10, 1971

Rehearing Denied April 7, 1971.

Harry B. Adams, III, Royal K. Griffin, John L. Sanders, San Antonio, Tex., for appellant.

KLINGEMAN, Justice.

This is an appeal from a judgment declaring appellee to be the father of Z G , a minor child born out of wedlock, but decreeing that there is no civil liability on the part of appellee to support such child.

The only testimony in the record was by the mother of such child, who testified that she was unmarried when she met appellee at a party and had subsequently dated him; that as a result of this dating, a child had been born; that there is no doubt in her mind that appellee is the father of the child; that appellee is a married man, but that at the time of such dating, she did not know this. Appellee had legal representation in the early proceedings, and an answer was filed on his behalf, consisting of a general denial, and a plea in abatement asserting that no cause of action exists either by statutory or common law in Texas for the support of a minor child born out of wedlock. 1 Appellee's attorney was given leave to withdraw as counsel prior to the trial of said cause, and appellee did not appear in said trial, either personally or by attorney.

Appellant asserts that such judgment denying such child the support of her father constitutes a denial of equal protection of law under the Fourteenth Amendment of the United States Constitution, and Article 1, Section 3 of the Texas Constitution, Vernon's Ann.St., and is an unconstitutional discrimination contrary to law.

At common law, the father is under no legal obligation for the support and maintenance of his illegitimate children. Lane v. Philips, 69 Tex. 240, 6 S.W. 610 (1887); Beaver v. State, 96 Tex.Cr.R. 179, 256 S.W. 929 (1923); 10 Am.Jur.2d Bastards § 68; 10 C .J.S. Bastards § 18, page 86. The majority of the courts in this country have

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held that without legislation on the subject, the father of an illegitimate child cannot be required to provide for its support. 30 A.L.R.Anno.--Illegitimate--Duty to Support 1069; 10 Am.Jur.2d § 68, supra; 10 C.J.S. § 18, supra.

At the present time there is no Texas statute imposing on the father the duty to support and maintain an illegitimate child. We do not consider it the purpose of this opinion to debate the various sociological reasons for or against such legislation. Sufficient to say, the Family Law Section of the State Bar of Texas has recommended such legislation to both the 61st and 62nd Legislatures of the State of Texas. At the present time all but two states have such legislation. It must be recognized, however, that a dominant feature of any type of legitimation statutes is the provision for proper standards and safeguards for determining the paternity of an illegitimate child.

The Texas Courts have uniformly held that a father is not under a common law or statutory duty to support his illegitimate child. See Lane v. Philips, supra; Beaver v. State, supra; 8 Tex.Jur.2d Bastardy § 13. The Supreme Court in Home of Holy Infancy v. Kaska, 397 S.W.2d 208 (Tex.1965), has recently reconsidered at length the rights and standing of the father of an illegitimate child. It was there said: 'There are no similar statutes (legitimation) in Texas, and here a father is not under a common law or statutory duty to support his illegitimate child.' In the face of this positive holding by our Supreme Court, the cases from other jurisdiction have little, if any, application. However, such holdings must be considered in the light of whether or not such jurisdiction has enacted some type of legitimation statute.

The trial court properly held that there was no cause of action in this State to impose civil liability on the part of appellee to support such illegitimate child. The judgment of the trial court is affirmed.

CADENA, Justice (dissenting).

Appellant's sole complaint is that the Texas rule which consistently with the general governmental policy of condemning children born out of wedlock to a second class way of life, deprives an illegitimate child of the right to paternal support which is accorded to legitimate children, violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution . The majority opinion notes appellant's contention and then proceeds to ignore it by applying, without effort to defend, the very rule of laws which appellant assails as unconstitutional.

Perhaps there was a time when the contention here made by appellant could be relegated to that class of arguments which courts consider too frivolous to merit discussion. But, at least during the past decade, there has been an increased concern with the validity, under the Equal Protection Clause, of governmental policies which discriminate against bastards. 1 Consideration

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of the problem increased after the May 20, 1968, decisions by the Supreme Court of the United States in Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436, and Glona v. American Guarantee and Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441, invalidating classifications based on illegitimacy found in a wrongful death statute. 2 Neither Levy nor Glona is mentioned by the majority.

Levy struck down the provisions of the Louisiana wrongful death statute which denied to a child born out of wedlock recovery for the wrongful death of his mother. In Glona, the Court invalidated a provision of the same statute which deprived a woman of the right to recover for the wrongful death of her illegitimate child.

Admittedly, the actual holdings in Levy and Glona do no more than equalize the position of legitimate and illegitimate children vis-a-vis their mother insofar as wrongful death claims against tortfeasors are concerned. The extension of the Levy and Glona decisions to eliminate all distinctions between legitimate and illegitimate children in their relation with their mother is difficult to avoid and would work no significant alteration of the Texas Law. 3

However, the extension of Levy 4 to the relationship between an illegitimate child and his father would bring about profound changes in the status of the out-of-wedlock child, since most of the legal disadvantages under which such a child labors result from his legal relations, or, more precisely, the lack of such relations, with his father. But we are not here concerned with the validity of all rules regulating the relationship between a father and his illegitimate child. We need consider only the right to paternal...

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