In re Interest of C. M. V.

• Decision Date: 13 May 2015
• Docket Number: No. 08–13–00146–CV,08–13–00146–CV
• Citation: 479 S.W.3d 352
• Parties: In the Interest of C. M. V., a Child
• Court: Texas Court of Appeals

479 S.W.3d 352

In the Interest of C. M. V., a Child

No. 08–13–00146–CV

Court of Appeals of Texas, El Paso.

May 13, 2015

John P. Mobbs, Attorney at Law, El Paso, TX, for Appellant.

Gino Estrada, El Paso, TX, for Appellee.

Before McClure, C.J., Rodriguez, J., and Barajas, C.J. (Senior Judge)

OPINION

ANN CRAWFORD McCLURE, Chief Justice

Frances Yepez appeals from a judgment establishing Luis A. Castelo, Jr. as the father of C.M.V., voiding a prior judgment changing the child's name, and awarding damages in the amount of $50,000 to Castelo on his claim for fraud. We reverse and render in part and affirm in part.

FACTUAL SUMMARY

Yepez and Castelo, who never formally married, lived together from 1996 until 1998 and have one son, C.M.V., who was born in 1997. Castelo initially denied paternity and his name is not listed on the child's birth certificate. Yepez filed a petition for divorce from Castelo on July 5, 2000, alleging that the parties had entered into a common law relationship around May 1996 and ceased to live together around April 1998. The divorce petition included a suit affecting the parent child relationship (SAPCR), identifying C.M.V. as a child of the marriage and Yepez sought managing conservatorship. Castelo, represented by counsel, filed an answer on April 2, 2001. He denied paternity but sought no affirmative relief. Meanwhile, on August 30, 2001, while the divorce action was still pending in the 65th District Court, Yepez—represented by different counsel—filed a petition in the 383rd District Court to change C.M.V.'s surname to her maiden name, which we reference herein only as "V." She did not serve the petition on Castelo because she feared for her safety after a prior domestic violence incident.¹ The court entered a name-change order on September 28, 2001. Yepez subsequently filed a motion to dismiss on the grounds that she was "of the opinion that a common law marriage never existed" and she believed that Castelo was still legally married to his estranged wife.² The divorce action was dismissed in October 2001.

According to Yepez, after the assault hearing in November 2000, Castelo had no contact with her or their son and she raised C.M.V. alone. Castelo claimed that he tried to find Yepez and C.M.V. but he did not know where they were. He alleged that Yepez had created an environment "where [he] could not locate [C.M.V.]" He did not seek counsel, nor did he go to the police or to the Attorney General to ask for help in establishing his paternity. He did not even look in a phone book to see whether Yepez was listed. Castelo eventually stopped looking for Yepez and C.M.V. because he did not know how to find them and did not "analyze [his] resources" to figure out a way to find them beyond asking mutual friends if they knew where he could find Yepez. Yepez contradicted Castelo's assertion that she hid the child from him. From 1999 to 2002, she lived at an address known to Castelo, and after she moved from that residence, her address was listed in the phone book and on property tax records.

Fast forward ten years. On June 14, 2011, the Texas Attorney General filed a Title IV–D petition to establish the parent-child relationship and for current and retroactive child support from Castelo.³ Castelo filed an answer and only after DNA testing did he finally admit paternity. He alleged as a defense to the request for retroactive child support that Yepez had hidden the child from him. Castelo also sought a declaratory judgment that he and Yepez had a common law marriage. Castelo asked the court, after establishing paternity, to confirm the child's surname as Castelo and order a name change. Castelo then alleged claims against Yepez for common law fraud and intentional infliction of emotional distress stemming from her failure to notify him of C.M.V.'s location and legal status, her interference "with the right for the father to communicate with his child," and her failure to inform him of "the probability of his paternity ...."

Following a hearing, the trial court, on February 11, 2013, issued a judgment which:

1. established paternity;

2. found that presentment of the name change petition in cause number 2001CM1629 constituted fraud upon Castelo, the child and the court;

3. found that the judgment entered in cause number 2001CM1629 changing C.M.V.'s surname was void because Castelo had not been served with citation;

4. confirmed C.M.V.'s surname to be "Castelo;"

5. appointed Yepez and Castelo to be joint managing conservators and ordered Castelo to pay monthly child support in the amount of $592.00 per month;

6. found the retroactive child support to be $16,972.22 and ordered Castelo to pay $500.00 per month toward the retroactive child support;

7. ordered Castelo to provide medical insurance for C.M.V.;

8. found certain facts relevant to the determination of whether a common-law marriage existed, but failed to declare that one existed;

9. found that Yepez committed "actual and deliberate fraud" which "resulted in harm to the child" and resulted in a misrepresentation of the child's legal status and name for more than 10 years; and

10. awarded damages to Castelo in the sum of $50,000 and ordered Yepez to pay Castelo's attorney's fees in the sum of $3,200.

The trial court denied all relief not expressly granted in its judgment. Yepez filed a motion for new trial which was overruled by operation of law.

SETTING ASIDE THE NAME–CHANGE ORDER

In her first two issues, Yepez challenges the trial court's decision to set aside the 2001 judgment changing C.M.V.'s surname. In Issue One, she complains that the trial court acted outside of its jurisdiction by setting aside the name-change because it was a valid final order and Castelo did not file a bill of review to set it aside. In Issue Two, she further maintains that even had he filed such pleadings, the evidence is legally and factually insufficient to establish that the name-change was procured by fraud.

The name-change order was signed by a district judge on September 28, 2001. Rule 329b(f) provides:

On expiration of the time within which the trial court has plenary power, a judgment cannot be set aside by the trial court except by bill of review for sufficient cause, filed within the time allowed by law; provided that the court may at any time correct a clerical error in the record of a judgment and render judgment nunc pro tunc under Rule 316, and may also sign an order declaring a previous judgment or order to be void because signed after the court's plenary power had expired.

TEX. R. CIV. P.329b(f). When the time for appeal has expired, a bill of review proceeding is the exclusive means to set aside a judgment. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex.1985). A party seeking to challenge a final judgment must utilize the bill of review procedure even in a case where the judgment is void or voidable. Id. The only exception to the Rule 329b(f) requirement of a bill of review is a case where the court rendering the judgment had no jurisdictional power to do so. See Middleton, 689 S.W.2d at 213. The Supreme Court defined "jurisdictional power" to mean "jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs." Id., quoting Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974).

Castelo argues that the 383rd District Court lacked jurisdiction to change the child's name because the 65th District Court was the court of continuing, exclusive jurisdiction as a result of the pending divorce action. Yepez filed the name-change petition pursuant to Sections 45.001–.005 of the Texas Family Code. See TEX. FAM. CODE ANN. §§ 45.001 –.005 (West 2014). Section 45.002(a)(4) requires the verified petition to state whether the child is subject to the continuing, exclusive jurisdiction of a court under Chapter 155. TEX. FAM. CODE ANN. § 45.002(a)(4). Section 155.001 of the Family Code provides that: "Except as otherwise provided by this section, a court acquires continuing, exclusive jurisdiction over the matters provided for by this title in connection with a child on the rendition of a final order." TEX. FAM. CODE ANN. § 155.001(a) (West 2014). The 65th District Court did not enter a final order and dismissed the divorce action less than two weeks after the name change. Consequently it never became the court of continuing, exclusive jurisdiction. See TEX. FAM. CODE ANN. § 155.001(b)(l) (providing that a voluntary or involuntary dismissal of a suit affecting the parent-child relationship does not create continuing, exclusive jurisdiction).

There is also a question whether the name-change suit should have been transferred to the 65th District Court⁴ but it is unnecessary to finally resolve that question because the 383rd District Court had jurisdictional power, as that phrase is used in Middleton v. Murff to hear and determine a petition seeking a name change. See TEX. CONST. art. V, § 8 ; TEX. GOV'T CODE ANN. § 24.007 (West Supp.2014). Thus, the exception in Rule 329b(f) does not apply and Castelo was required to attack the name change by means of a bill of review. Castelo did not file a bill of review and his pleadings filed in the instant case did not ask the trial court to set aside the name change. In fact, his pleadings do not refer to the 2001 judgment at all. His petition merely asked the trial court to "confirm" that C.M.V.'s surname is Castelo and to change C.M.V.'s last name if necessary. Consequently, we conclude that the trial court lacked jurisdiction to set aside the name-change judgment.⁵ We sustain Issue One. Because we have sustained the first issue, it is unnecessary to address Issue Two.

CHANGING THE CHILD'S SURNAME

In Issue Three, Yepez challenges the legal and factual sufficiency of the evidence supporting the trial court's implied finding that changing C.M.V.'s surname is in his best interest.

Standard of Review and Relevant Law

A trial court's ruling on a request to change the name of a child is reviewed for an...