B.I.V., In Interest of

• Decision Date: 07 May 1992
• Docket Number: No. 13-91-080-CV,13-91-080-CV
• Citation: 843 S.W.2d 58
• Parties: In the Interest of B.I.V., a Minor.
• Court: Texas Court of Appeals

Page 58

843 S.W.2d 58

In the Interest of B.I.V., a Minor.

No. 13-91-080-CV.

Court of Appeals of Texas Corpus Christi.

May 7, 1992.

Opinion on Denial of Rehearing Nov. 6, 1992.

Dolores E. Valadez, Mission, Kevin T. O'Hanlon, Charles G. Childress, Asst. Atty. Gen., Child Support Enforcement, Austin, George Barnes, Asst. Atty. Gen., Child

Support Enforcement, Brownsville, Gregory R. Wettman, Wettman & Wettman, Houston, for appellant.

John E. Lewis, Lewis, Pettitt & Hinojosa, McAllen, for appellee.

Before GILBERTO HINOJOSA, KENNEDY, and DORSEY, JJ.

OPINION

GILBERTO HINOJOSA, Justice.

This is an appeal from the entry of summary judgment in a paternity suit. Appellant, Dolores Valadez, brings two points of error claiming that a fact issue exists regarding paternity, and that the trial court erred in failing to sanction appellee, Raul Longoria. We affirm.

The summary judgment evidence showed that B.I.V. was born to appellant on March 9, 1978. She married Adolfo Valadez on September 5, 1960. They remained married until at least 1985, and lived together until 1982. Thus, at the time of the child's conception and birth she was married to Adolfo Valadez. ¹ In an affidavit filed with appellant's response to the motion for summary judgment appellant claims that appellee is the child's father.

Appellee filed a motion for summary judgment asserting that the instant paternity suit was improperly filed because the child had a presumed father, and that this bars a paternity action involving the child. Attached to the motion was the child's birth certificate and a transcript of a sanctions hearing in this case in which appellant testified.

Appellant filed a response to the motion for summary judgment arguing that a question of fact existed regarding whether appellee was the biological father of the child. Additional summary judgment proof which allegedly supported this response was inadmissible because it was not attached to the response or timely filed prior to the judgment. ² In support of her response she argues that appellee's failure to take the paternity test raises a presumption of paternity, or shifts the burden of proof to him to disprove his paternity. This presumption or shifting of the burden of proof, she alleges, is what creates a question of fact making summary judgment inappropriate.

This decision is controlled by two sections of the Family Code, § 13.01(a) and § 12.01(a)(1). Section 13.01(a) provides:

§ 13.01 Parties: Time Limitation of Suit

(a) A suit to establish the parent-child relationship between a child who has no presumed father and the child's biological father may be brought by the mother, by a man claiming to be or possibly to be the father, or by any other person or governmental entity having standing to sue under Section 11.03 of this code. A suit to establish paternity may be brought before the birth of the child, but must be brought on or before the second anniversary of the day the child becomes an adult, or the suit is barred. (Emphasis added). ³

TEX.FAM.CODE ANN. § 13.01(a) (Vernon 1989). This provision specifically limits the filing of a paternity action to those situations in which the child involved has "no presumed father."

The Family Code raises a presumption that the husband of the child's mother is the child's biological father if the child is born during the marriage. Section 12.01(a)(1) of the Family Code provides:

A man is presumed to be the biological father of a child if:

(1) he and the child's biological mother are or have been married and the child is born during the marriage ...

TEX.FAM.CODE ANN. § 12.02(a)(1) (Vernon 1989).

In State v. Lavan, 802 S.W.2d 73, 74-77 (Tex.App.--Austin 1990, writ granted), the Austin Court interpreted these provisions of the Family Code and held that the existence of a presumed father under § 12.01(a)(1) conclusively barred a paternity suit against an alleged father who was not the husband of the child's mother. The Court wrote:

The State alleged in its petition that Lavan was the "biological father" of X, [the child] but the State also alleged that John Doe was X's "presumptive legal father ... because he was married to the mother ... at the time the child was conceived and/or born...." Under this pleading and § 13.01(a), the statutory cause of action can not be established as a matter of law, for the statutory action is only available "to establish the parent-child relationship between a child who has no presumed father and the child's biological father...."

Id. at 76. See also In the Interest of M.R.M., 807 S.W.2d 779, 782 (Tex.App.--Houston [1st Dist.] 1991, no writ); Jack v. Jack, 796 S.W.2d 543, 548 (Tex.App.--Dallas 1990, no writ); Collier v. Wichita County Child Welfare Unit, 722 S.W.2d 198, 200-01 (Tex.App.--Fort Worth 1986, no writ).

In the instant case, the evidence conclusively showed that B.I.V. was born during a valid marriage between Dolores and Adolfo Valadez. The presumptive parent-child relationship between B.I.V. and Adolfo Valadez has not been terminated. Thus, appellant can not bring a paternity action under § 13.01(a) so long as Adolfo Valadez is the child's presumed father. Lavan, 802 S.W.2d at 76; TEX.FAM.CODE ANN. § 13.01(a).

Appellant argues that appellee failed in his burden to conclusively prove he is not the biological father, thus summary judgment should be reversed. She supports her argument with summary judgment proof stating that she did not sleep with her husband at the time B.I.V. was conceived and that appellee was B.I.V.'s biological father. She also relies upon the fact that appellee failed to take the court-ordered paternity test. In this regard, she argues that § 13.06(d) of the Family Code places the burden of proof on the issue of paternity upon an alleged father who fails to take a court-ordered paternity test. Section 13.06(d) provides:

(d) A party who refuses to submit to paternity testing has the burden of proving that the alleged father is not the father of the child.

TEX.FAM.CODE ANN. § 13.06(d) (Vernon 1990).

These facts and § 13.06(d) are relevant to determine paternity in a properly filed paternity suit under Chapter 13 of the Family Code. The instant case, however, is not a properly filed action to establish paternity under Chapter 13 because a presumed father exists. Therefore the trial court correctly determined that evidence of paternity and § 13.06(d) were not relevant to this summary judgment.

Appellant also argues that § 13.01(a) does not mean what it says because § 12.02 indicates a legislative intent to permit rebuttal of the § 12.01(a)(1) presumption of the husband's biological fatherhood prior to its termination by court decree. Section 12.02(b) provides:

(b) A presumption under this section may be rebutted only by clear and convincing evidence. If two or more presumptions arise that conflict, the presumption that is founded on the weightier considerations of policy and logic controls. The presumption is rebutted by a court decree establishing paternity of the child by another man. (Emphasis added)

TEX.FAM.CODE ANN. § 12.02(b) (Vernon 1989).

Much of appellant's reasoning is predicated on the assumption that the legislature did not intend to require termination of the presumed father's rights before a Chapter 13 paternity action may be filed. However, the best evidence of a statute's meaning is its language. The Supreme Court of Texas recently wrote: "Where language in a statute is unambiguous, this court must seek the intent of the legislature as found in the plain and common meaning of the words and terms used." Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990). The statutory language in § 13.01(a) is unambiguous. ⁴ The Lavan Court agrees. Lavan, 802 S.W.2d at 76. Thus, the most fundamental problem with appellant's position in this Court is "[w]hen the Legislature has spoken on a subject, its determination is binding upon the courts unless the Legislature has exceeded its constitutional authority." Public Util. Com'n, v. Cofer, 754 S.W.2d 121, 124 (Tex.1988). ⁵

When construing a statute, we also follow the Code Construction Act, which specifically states that a "just and reasonable result is intended," and "public interest is favored over any private interest." TEX.GOV.CODE ANN. § 311.021(3) and (5) (Vernon 1985). The just and reasonable result specified by the legislature is that appellant must exclude the possibility that her former husband is the biological father of the child. The public interest involved is the interest of the vast majority of children and families potentially involved in paternity actions. The private interest asserted here is appellant's request for us to ignore the plain language of the statute so this improperly filed lawsuit may proceed. Appellant has articulated no reason why this court should remove important protections provided by the legislature to the public in order to facilitate appellant's private interest in this lawsuit.

In addition, when construing a statute we also consider:

1) [the] object sought to be attained; 2) circumstances under which it was enacted; 3) legislative history; 4) common law or former statutory provisions; [and] 5) [the] consequences of a particular construction; ...

Id. § 311.023(1)-(4) and (5). Based on our analysis of these principles, we disagree with appellant's assumption that the legislature did not intend to require termination of existing parental rights before initiating a paternity action in cases in which a presumed father exists.

Our review of the law in this area reveals that the Supreme Court of Texas has determined that the Legislature's declared public policy favors legitimacy. Home of Holy Infancy v. Kaska, 397 S.W.2d 208, 212 (Tex.1965). Before enactment of statutes governing termination of parental rights between a child and the mother's husband, a child was almost conclusively presumed to be the child of the marriage. ⁶ See Esparza v. Esparza, 382 S.W.2d...