Dreyer v. Greene

• Decision Date: 27 October 1993
• Docket Number: No. D-1183,D-1183
• Citation: 871 S.W.2d 697
• Parties: Kathleen Gresham DREYER, as Next Friend of A.D.D. and A.G.D., Minor Children, Petitioner, v. Philip S. GREENE, Respondent.
• Court: Texas Supreme Court

Page 697

871 S.W.2d 697

Kathleen Gresham DREYER, as Next Friend of A.D.D. and A.G.D., Minor Children, Petitioner, v. Philip S. GREENE, Respondent.

No. D-1183.

Supreme Court of Texas.

Oct. 27, 1993.

Rehearing Overruled March 30, 1994.

Eugene L. Smith, Rita Miller Fason, Houston, for petitioner.

John J. Sampson, Austin, Lewis Dickson, Houston, for respondent.

OPINION

HECHT, Justice.

Section 13.44(a)(1) of the Texas Family Code provides that a paternity suit "is barred if final judgment has been rendered by a court of competent jurisdiction ... adjudicating a named individual to be the biological father of the child...." The issue we address in this case is whether a finding in a divorce decree that the husband and wife are parents of certain children bars a later action by the children to establish that someone else is their biological father. The trial court held that this paternity suit is barred, and the court of appeals affirmed. 809 S.W.2d 262 (1991). We affirm the judgment of the court of appeals.

In her divorce petition, Kathleen Gresham Dreyer alleged under oath that she and her husband, Thorne Webb Dreyer, were the parents of three children "of this marriage". Thorne did not answer the petition, and the trial court rendered judgment by default. No guardian ad litem was appointed to represent the children. In the final decree, the trial court found that Kathleen and Thorne were the parents of three children as Kathleen had alleged, appointed Kathleen their managing conservator and Thorne their possessory conservator, and ordered Thorne to pay Kathleen child support. When Thorne defaulted on his support obligation, Kathleen sought to enforce it by a motion for contempt--later resolved in an agreed order that Thorne pay Kathleen $54,000. This order, signed by both parties, contained a finding that the three children named in the divorce decree were born during Kathleen and Thorne's marriage. Less than two months after the order was signed, Kathleen initiated this proceeding as next friend for two of her children, A.D.D. and A.G.D., twin boys then five years old, to establish that Philip S. Greene, rather than Thorne, is their biological father. Their petition requested that the trial court order blood tests and conduct a hearing. The trial court refused and instead granted Greene's motion to dismiss the action as barred by section 13.44 of the Family Code.

Kathleen contends that the trial court's findings do not bar this action by her twin sons. The finding that Thorne was the parent of the children, she argues, is not an adjudication that he is their biological father because a man can be the parent of a child without being the biological father. While this argument is certainly correct, it ignores the context of the trial court's finding in this case. The court found that Kathleen and Thorne were the "parents" of their children. It is implausible that the court would have chosen this single word to refer, without qualification or explanation, to both the biological relationship between Kathleen and the children and some other relationship involving Thorne. It is even more implausible when the finding was clearly based on Kathleen's sworn allegation that the children were "of the marriage". See Espree v. Guillory, 753 S.W.2d 722, 724 (Tex.App.--Houston [1st Dist.] 1988, no writ) ("[a] finding of fact by the trial court in a divorce judgment that a child was born to the marriage of the parties is equivalent to a finding that the husband is the father of the child...."); Walters v. Walters, 565 S.W.2d 586, 587 (Tex.Civ.App.--Austin 1978, no writ); Thompson v. Thompson, 572 S.W.2d 761, 764-765 (Tex.Civ.App.--Tyler 1978, no writ). We conclude that the trial court's findings constitute an adjudication that Thorne was the biological father of A.D.D. and A.G.D. ¹ Since there is no question that the trial court had jurisdiction to make this determination, it operates as a bar under section 13.44 to the present action. ²

Kathleen argues that such an application of section 13.44 impermissibly infringes upon her sons' rights to due process and equal protection of the law under the United States Constitution. However, Kathleen did not make this argument in the trial court. As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (1959); Walker v. Employees Retirement Sys., 753 S.W.2d 796, 798 (Tex.App.--Austin 1988, writ denied). We follow that rule here and thus do not address Kathleen's constitutional arguments.

The judgment of the court of appeals is

Affirmed.

GAMMAGE, Justice, dissenting.

In an effort to prevent what it purports to be a mother's "recovery" for her own obviously inconsistent statements, the majority today runs roughshod over the rights of the minor children for whose protection the legislature enacted the paternity provisions in question. I would hold that the mother's default recovery in a divorce action is not an "adjudication" of paternity binding on the minor children under section 13.44 of the Family Code. Accordingly, I dissent.

The issue is one of statutory construction. The default decree in the divorce case should not be an "adjudication" under section 13.44 for three reasons. First, the express statutory language and legislative history do not require it. Second, the statute should be given a construction to avoid doubt about its constitutionality. Finally, our policy to preserve the rights of minors, particularly those not represented by attorneys ad litem should require that a mere recitation in an uncontested default divorce is not a binding "adjudication" of paternity as to children unrepresented by counsel.

I

The literal terms of the statute ¹ do not require that a default divorce decree which merely recites the children are "of the marriage" be deemed as "adjudicating ... the biological father." There simply is no litigation of biological paternity in such a divorce decree. Indeed, one court of appeals has already written that the effect of such a recital in a default divorce decree is to leave in place, as between the parties to the divorce, the presumption that the child born during the marriage is that of the husband, and thus does not litigate paternity. Espiricueta v. Vargas, 820 S.W.2d 17, 19 (Tex.App.--Austin 1991, writ denied) [cited with general approval in Attorney General v. Lavan, 833 S.W.2d 952, 955 (Tex.1992) ]. This view is consistent with our statement that lack of actual litigation is a significant factor in addressing such statutory construction questions, and that conjoining standing under section 12.06 with paternity suits under section 13.01 is proper. See Lavan, 833 S.W.2d at 954-55. ²

The legislative history of the section likewise does not suggest such a "boiler plate" recital in a default divorce decree is an adjudication. The statute was adopted in 1987 as Senate Bill 1123, sponsored by Senator Armbrister of the Senate Judiciary Committee. The committee's bill analysis indicates the concern was to "restore[ ] the concept of voluntary legitimation ... in a manner consistent with the substance of the Supreme Court's [In Interest of Baby McLean, 725 S.W.2d 696 (Tex.1985) ] decision," i.e., to insure a constitutional legitimation procedure. SENATE COMM. ON THE JUDICIARY, BILL ANALYSIS, Tex. S.B. 1123, 70th Leg. (1987), at 1. The Baby McLean decision held that the legitimation procedure had to allow the man asserting fatherhood a chance to prove his case and obtain the rights of a parent, even if the mother refused to grant them to him. Id. In short, it was a purpose of the statute to broaden the rights of parties claiming parenthood, to meet constitutional requirements.

The original bill as passed by the Senate did not contain what is now section 13.44. It was added as a committee amendment from the House Judiciary Committee, after the senate bill had been referred to the House of Representatives. The amendment was adopted without objection in the House, adopted without comment by the House-Senate Conference Committee, and adopted by both houses apparently without debate. H.J OF TEX., 70th Leg., Reg.Sess. 3578-79 (1987). The logical conclusion is that a child would have only one legitimated father under the process, since otherwise there was the possibility a child could have two or more legitimated fathers, raising a problem of competing paternal parental rights the Family Code is ill-designed to handle. But the point is that a child would have one legitimation under chapter 13--not that the child would have no right because the child's mother had obtained a default divorce decree that was neither correct as to the biological father nor in the child's best interest. The bare recitation that the children were "of the marriage" is not the statutory finding required by section 13.44, which by its terms is that "a named individual [is] the biological father of the child." (Emphasis added.) I have found nothing in this sparse legislative history of section 13.44 to indicate the purpose of the legislature to make divorce decrees or other proceedings, except those in which paternity is actually litigated and in issue as in chapter 13, binding as an "adjudication" under the section.

II

The second reason for construing these facts as not constituting "adjudication" is deference to constitutional concerns. It may be, as the majority asserts, that petitioners have failed to preserve their constitutional arguments. That does not, however, eliminate all constitutional concerns in construing the statute. It is an established principle of statutory construction that the legislature is presumed to have intended the construction that makes the statute constitutional. TEX.GOV'T CODE ANN. § 311.021(1) (Vernon 1988) (Code Construction Act). The due course of law provision under the Texas Constitution provides protection to certain...