In re S.T.

• Decision Date: 12 June 2015
• Docket Number: NO. 02–15–00014–CV,02–15–00014–CV
• Citation: 467 S.W.3d 720
• Parties: In re S.T.
• Court: Texas Court of Appeals

467 S.W.3d 720

In re S.T.

NO. 02–15–00014–CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: June 12, 2015

Thomas M. Michel, Griffith, Jay & Michel, LLP, Janice A. Schattman, Janice Schattman, P.C., Fort Worth, TX, Attorneys for Relator.

Georganna L. Simpson, Georganna L. Simpson, P.C., Dallas, TX, Vaughn L. Bailey, Law Office of Vaughn L. Bailey, Fort Worth, TX, Attorney for Real Party in Interest (Husband).

Bryan Ballew, Beal Law Firm, Southlake, TX, Attorney for Real Party in Interest (Wife).

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

OPINION

TERRIE LIVINGSTON, CHIEF JUSTICE

S.T., relator, filed a petition for writ of mandamus in this court seeking relief from a trial court order allowing a suit to adjudicate his paternity of a child to continue in an action joined with a pending divorce and suit affecting parent-child relationship (SAPCR) between real parties in interest, referred to in this opinion as Husband and Wife. The primary issue is whether S.T. has a vested right to rely on the statute of limitations in effect at the child's birth in February 2002 and when the child turned four years old, or whether an exception to the statute of limitations—which the legislature did not codify until after the former four-year statute of limitations had run—applies. Based on the particular facts and circumstances of this case, we grant relief.

Background

Husband filed for divorce from Wife in March 2014. In the petition, Husband denied his paternity of the only child born during the marriage and alleged that he had been precluded from challenging paternity before the statute of limitations ran because Wife's misrepresentations about the child's conception resulted in his mistaken belief that he was the child's father. Husband also sought genetic testing of the child and named an unknown father as respondent. Wife countersued for divorce and alleged that Husband's requested relief was barred on statute of limitations grounds.¹ See Tex. Fam. Code Ann. § 160.607 (West 2014).

Husband subsequently filed a third party petition against S.T., the man Husband alleged to be the child's biological father,² seeking money damages in “an amount equivalent to what [S.T.'s] child support obligation would have been if he had been established as the father ... from the time of ... birth.” Husband also filed a motion seeking genetic testing of S.T.

In the meantime, Husband and Wife entered into a rule 11 agreement, in which they agreed (1) to sever the divorce from the SAPCR, (2) that in the final decree Husband would “be adjudicated to not be the father [of the child] and to have no rights and no duties, including the duty of support,” and (3) that if Wife recovered any child support from S.T., she would reimburse Husband for “1/3 of any amount recovered ... if, as, and when received.” S.T. filed an objection to the rule 11 agreement; he argued that the issues in the divorce and SAPCR were so intertwined that they could not be severed and that adjudicating Husband to not be the child's father in the decree violates public policy. The trial court suspended operation of the rule 11 agreement.

S.T. filed a third party counterclaim for declaratory judgment, seeking to have the trial court find that any attempt to adjudicate him as the father of the child was barred by the four-year statute of limitations in family code section 160.607 and that Husband is the child's presumed father. Id. §§ 160.102(13), 160.204(a)(1), 160.607 (West 2014). S.T. moved for summary judgment on his declaratory judgment claim and on Husband's paternity claims against him. In addition to arguing that Husband's paternity claims were precluded by operation of the applicable statute of limitations, S.T. also claimed that Husband could not sue him for back child support owed to the community.

In October 2014, the trial court granted an agreed partial summary judgment finding that Husband was the child's presumed father “unless he successfully rebuts that presumption” and that Husband would take nothing on his claim for money damages because “there is no cause of action recognized in Texas by a presumed father to recover retroactive child support against a biological father or to recover damages based on fraud and conspiracy with respect to the child's conception.” But the trial court denied S.T.'s motion for summary judgment on the limitations issue.

On January 9, 2015, the trial court signed an agreed “Order for Stipulation of Facts,” stating that “IT IS ADJUDICATED, ORDERED AND DECREED that no genuine issue exists with respect to the following facts, which are deemed conclusively proven without need of further evidence for proof thereof, in connection with the trial of this cause”: (1) Husband is not the father or biological father of the child; and (2) “[f]acts exist that conclusively establish [Husband's] right to the relief of being able to challenge his paternity of [the child], pursuant to Texas Family Code Section 160.607(b)(2).” Accordingly, the trial court ordered that in the final decree, “it shall be adjudicated that [Husband] is not the father of [the child] and that [Husband] shall have no rights and no duties, including the duty of support, regarding [the child] and as such, no provisions for the right[s] or duties will be included in the final decree.”

Although Husband contended in his response to S.T.'s motion for summary judgment that the fraudulent concealment exception to the four-year statute of limitations passed by the legislature in 2011 applied to allow him to avoid limitations, his response to relator's petition for writ of mandamus does not contend that this statutory exception is available to him in avoidance of S.T.'s statute of limitations defense. Instead, he argues here that the common law discovery rule applies and that the 2011 amendment merely incorporated that already-existing common law exception.³

Applicable Law

When the child was born in February 2002, section 160.607 read as follows:

(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.

(b) A proceeding seeking to disprove the relationship between a child and the child's presumed father may be maintained at any time if the court determines that:

(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; and

(2) the presumed father never openly treated the child as his own.

Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610, 1621–22. In 2003, the legislature amended section (b)(2) to read, “the presumed father never represented to others that the child was his own.” Act of May 28, 2003, 78th Leg., R.S., ch. 1248, § 4, 2003 Tex. Gen. Laws 3537, 3538. The child turned four in February 2006. No party has contended that either of the exceptions listed in (b)(2) applied then or apply now.

In the 2011 session, the legislature changed sections (b)(1) and (b)(2) of section 160.607 so that the current version of section 160.607(b) provides as follows:

(b) A proceeding seeking to adjudicate the parentage of a child having a presumed father may be maintained at any time if the court determines that:

(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; or

(2) the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the time prescribed by Subsection (a) because of the mistaken belief that he was the child's biological father based on misrepresentations that led him to that conclusion.

Act of May 27, 2011, 82nd Leg., R.S., ch. 1221, § 8, 2011 Tex. Sess. Law Serv. 3255, 3257–58 (West) (emphasis added). Husband contends that although the exception in (b)(2) was not in effect when the child was born or when the child turned four years old, he can nevertheless rely on it to defeat the statute of limitations in section 160.607(a).

The enacting legislation for the amendment in (b)(2) states that “[t]he changes in law made by this Act with respect to a proceeding to adjudicate parentage apply only to a proceeding that is commenced on or after the effective date of this Act.” Id. § 11(b). But relator contends that to apply the 2011 exception to this case impermissibly impairs his vested right to rely on the limitations statute as it existed when the child was born. Whether a law unconstitutionally “impairs vested rights” is decided by whether “it takes away what should not be taken away.” Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126, 143 (Tex.2010). In determining whether a statute violates the prohibition against retroactive laws in article I, section 16 of the Texas Constitution, courts must consider three factors in light of the prohibition's dual objectives: the nature and strength of the public interest served by the statute as evidenced by the legislature's factual findings, the nature of the prior right impaired by the statute, and the extent of the impairment. Id. at 145. The Texas Supreme Court has held in three cases involving statutes of limitations that had become vested that to apply an extended or expanded limitations period to allow the plaintiff's claim to go forward would be constitutionally impermissible. Baker Hughes, Inc. v. Keco R. & D., Inc., 12 S.W.3d 1, 5 (Tex.1999) ; Wilson v. Work, 122 Tex. 545, 62 S.W.2d 490, 490–91 (Tex.1933) (orig. proceeding); Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249, 253 (Tex.1887) ; see Robinson, 335 S.W.3d at 146 (“This Court has invalidated statutes as prohibitively retroactive in only three cases, all involving extensions of statutes of limitations.”); In re K.N.P., 179 S.W.3d 717, 720 n.5 (Tex.App.—Fort...