O.G.M., In re

Citation988 S.W.2d 473
Decision Date08 April 1999
Docket NumberNo. 01-98-0496-CV,01-98-0496-CV
PartiesIn the Interest of O.G. M., a Child. (1st Dist.)
CourtCourt of Appeals of Texas

Reginald Hirsch, Earle S. Lilly, Lynne Liberato, Patrice Pujol, Alene Ross Levy, Houston, for Appellant.

Roy W. Moore, Pamela E. George, Houston, for Appellee.

Panel consists of Justices MIRABAL, WILSON, and ANDELL.

O P I N I O N

ERIC ANDELL, Justice.

The trial court rendered summary judgment for the appellee, Donald McGill, on the issue of paternity of a child born through in vitro fertilization. In three points of error, the appellant, Mildred McGill Schmit, complains the trial court erred by denying her summary judgment motion, granting McGill's motion, and refusing to grant her attorney's fees. We affirm.

Facts

Donald McGill (McGill) married Mildred McGill Schmit (Schmit) in 1976. After having three children, Schmit underwent tubal ligation. In 1994, Schmit and McGill sought the services of an assisted reproduction clinic in an effort to create another child through in vitro fertilization (IVF). This process involves the aspiration of ova or oocytes from the follicles of a woman's ovaries and fertilization of these ova in a laboratory procedure using the husband or donor's sperm. The resulting pre-embryos are transferred to the uterus of the potential mother, whereupon a viable pregnancy may occur. Because the IVF procedure frequently produces more pre-embryos than safely may be transferred at one time, the extra pre-embryos may be frozen for future use through a process called cryopreservation.

During the couple's marriage, Schmit unsuccessfully attempted the IVF procedure several times using her ova and McGill's sperm. The couple executed an informed consent form wherein they agreed that in the event of divorce, they would dispose of the pre-embryos according to both of their wishes. When Schmit and McGill were divorced in 1996, the clinic was storing four of their frozen pre-embryos. Their divorce decree did not address the disposition of the pre-embryos. Three months post-divorce, McGill accompanied Schmit to the assisted reproduction clinic where Schmit attempted the IVF procedure again. The parties claim they orally agreed as to McGill's rights to any child resulting from the procedure. However, Schmit claims McGill donated the pre-embryos to her, while McGill claims they agreed he would be the father.

Because the IVF procedure was successful this time, Schmit gave birth to baby O.G.M. in June 1997. Three months later, McGill filed a paternity suit and Schmit answered. Both parties then moved for summary judgment on the issue of paternity. The trial court granted McGill's motion and denied Schmit's. After a six day trial, a jury appointed Schmit O.G.M.'s sole managing conservator and McGill O.G.M.'s possessory conservator. McGill is also possessory conservator of the parties' other minor child.

I. Discussion

This is a case of first impression without any statutory or precedential guidance. Because of the complexity of potential legal issues arising from the in vitro fertilization procedure, we will give deference to the Texas Legislature to enact legislation deciding the rights of parties involved in the in vitro fertilization process. Accordingly, we will frame our issue as narrowly as possible.

We are deciding whether a biological father should be denied paternity to a child born through in vitro fertilization from a frozen pre-embryo conceived during marriage but implanted into the biological mother after divorce.

II. Summary Judgment Motions

In points of error one and two, Schmit complains the trial court erred by granting McGill's summary judgment motion, and by denying Schmit's summary judgment motion.

In reviewing a summary judgment, we take the evidence favorable to the non-movant as true and indulge every reasonable inference in the non-movant's favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. A party may not appeal denial of its motion for summary judgment unless both parties have moved for summary judgment, and one motion is granted while the other is overruled. Jones v. Strauss, 745 S.W.2d 898, 900 (Tex.1988). We consider a denial if the appellant complains of both the granting of the appellee's motion and the denial of its own. Id. We may then resolve the entire case, including rendering appropriate judgment. Utica Nat'l Ins. Co. v. Fidelity & Cas. Co., 812 S.W.2d 656, 658-59 (Tex.App.--Dallas 1991, writ denied). Because Schmit complains of both summary judgment motions, we are permitted to consider the merits of McGill and Schmit's summary judgment motions.

A. Did the Trial Court Err in Rendering Summary Judgment on a Ground Not Presented in McGill's Motion?

Schmit contends the trial court erred in rendering summary judgment on a ground McGill did not raise in his motion. The order rendering summary judgment states:

After reviewing the pleadings, supporting evidence, and arguments of counsel, the court is of the opinion that [McGill's] motion should be GRANTED and that [Schmit's] motion should be DENIED.

It is, therefore, ORDERED, ADJUDGED and DECREED:

THAT [McGill] is the biological father of [O.G.M.] as a result of TEX. FAM.CODE ANN. § 151.101; 1 and

THAT [Schmit's] motion for summary judgment is DENIED.

Schmit argues that because McGill did not move for summary judgment on the basis of section 151.101, the rendition of summary judgment in his favor must be reversed. We disagree. The order does not state the summary judgment motion is granted on the basis of section 151.101, but rather makes a statement that McGill is O.G.M.'s biological father as a result of section 151.001; it has never been controverted by any party that McGill is O.G.M.'s biological father. The trial court did not specifically rule on all of the grounds of McGill's summary judgment motion; therefore, we will consider each of the grounds. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

B. Was the Evidence Sufficient to Support McGill's Summary Judgment?

Schmit contends the evidence was insufficient to support the judgment.

1. McGill is Named O.G.M.'s Father on Her Birth Certificate.

In his summary judgment motion, McGill argued that as a result of being named O.G.M.'s father on her birth certificate, he is presumed to be her father. McGill relies on the Texas Family Code, which provides:

The parent-child relationship may be established between a child and the biological father of the child as provided by this code; and

A man is presumed to be the biological father of a child if without attempting to marry the mother, he consents in writing to be named as the child's father on the child's birth certificate.

TEX. FAM.CODE ANN. § 151.001-.002 (Vernon Supp.1999). In support, McGill attached O.G.M.'s birth certificate, which names McGill as O.G.M.'s father. McGill also attached the birth certificate worksheet from Columbia Women's Hospital, which names him as O.G.M.'s father. McGill did not sign the birth certificate.

2. McGill Files a Statement of Paternity.

In his motion, McGill also cites Texas Family Code section 160.203, which provides that a statement of paternity executed as provided by this subchapter is prima facie evidence that the child is the child of the person executing the statement, and the person has an obligation to support the child. TEX. FAM.CODE ANN. § 160.203 (Vernon Supp.1999).

Section 160.202 entitled "Statement of Paternity" requires the following:

(a) The statement of paternity to be used by this subchapter must:

(1) be in writing;

(2) be signed by the man alleging himself to be the father of the child;

(3) state whether the man alleging himself to be the father is a minor; and

(4) clearly state that the man signing the statement acknowledges the child as his biological child.

* * * *

(c) The statement must be executed before a person authorized to administer oaths under the laws of this state.

* * * *

(e) The statement must include the social security number of the father.

TEX. FAM.CODE ANN. § 160.203 (Vernon 1995). In support, McGill attached the following:

a. A sworn affidavit entitled "Statement of Paternity" which states:

"I acknowledge that I am the biological father of [O.G.M.], a female child born to [Schmit] in Harris County, Texas, on June 25, 1997. I was not married to the mother of this child at the time of the birth of the child or at any subsequent time. The child is not the biological child of another man. I consented in writing to be named, and am named, as the child's father on the child's birth certificate."

b. McGill's petition for voluntary paternity, filed September 17, 1997, which requested that his paternity of O.G.M. be adjudicated.

3. Schmit's Response and Counter-Motion for Summary Judgment

Schmit's response to McGill's summary judgment motion stated:

a. McGill is not the presumed father because O.G.M. was born over 300 days after Schmit and McGill were divorced on June 25, 1997 b. McGill is not the presumed father because even though he is listed as O.G.M.'s father on her birth certificate, McGill did not consent in writing.

c. Even if a presumption of paternity exists that McGill is O.G.M.'s father, sections 160.110, 2 151.101, 3 151.102, 4 and 151.103 5 set out ways to rebut a presumption that McGill is O.G.M.'s father.

d. Because section 101.024 defines parent as a man presumed to be the biological father, McGill is not O.G.M.'s parent. See TEX. FAM.CODE ANN. § 160.110 (Vernon 1995)

e. O.G.M.'s parentage is determined by section 151.101(b), 6 not chapter 160. 7

f. The cryopreservation agreement is not a parenting...

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