In re Shockley

• Decision Date: 20 November 2003
• Docket Number: No. 08-02-00082-CV.,08-02-00082-CV.
• Citation: 123 S.W.3d 642
• Parties: In the Interest of Regan Nicole SHOCKLEY, a Minor Child.
• Court: Texas Court of Appeals

123 S.W.3d 642

In the Interest of Regan Nicole SHOCKLEY, a Minor Child.

No. 08-02-00082-CV.

Court of Appeals of Texas, El Paso.

November 20, 2003.

Terri Harris Motl, San Angelo, for appellant Monica Delphia Smith.

Thomas M. Goff, San Angelo, for appellant Damin Lee Guthrie.

Gayle Shackelford, Smith, Shackelford & Devine, Midland, for appellee Kevin Shockley.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

We address today the legal complexities and competing public policies which arise between a biological father and a psychological daddy. Monica Smith, the mother of Regan Shockley, and Damin Guthrie, the biological father, appeal the trial court's order establishing a parent-child relationship between Regan and Kevin Shockley and appointing Kevin as the sole managing conservator. For the reasons that follow, we affirm the judgment of the trial court.

FACTUAL SUMMARY

Although they never married, Kevin Shockley and Monica Smith engaged in a sexual relationship between 1992 and mid-1996. In late May and early June 1996, Monica was sexually intimate with both Kevin and with Damin Guthrie. Kevin was unaware of Monica's involvement with Damin, but Damin knew about Kevin. Monica learned that she was pregnant in October 1996. Kevin asked her if there were any possibility that the child was not his, but Monica denied having sexual relations with any other men. She never told anyone about her sexual liaison with Damin until March 2001. Regan was born on February 24, 1997, in San Angelo. Kevin attended the birth and signed the necessary documents to be named as the father on the birth certificate. Monica acquiesced in Regan's surname being listed as Shockley. Damin recognized there was a possibility that he was Regan's father and on more than one occasion, he confronted Monica. Damin even asked for genetic testing, but Monica refused his request, persisting in her claim that Kevin was Regan's father. Indeed, as the trial court specifically found, Monica intended for Kevin to assume the rights and duties of fatherhood.¹

Kevin began paying child support soon after Regan was born and visited regularly. After Regan was weaned from breast feeding, Kevin began keeping her one or two nights a week. In July 1998, Kevin married Misti Evans and moved to Midland. Kevin and Monica agreed that Regan would alternate weeks between Midland and San Angelo. Between July 1998 and May 1999, Regan split her time equally between Monica and Kevin. Because Misti was employed as a teacher and was not working during the summer, Regan began to stay in Midland on a continuous basis. Once school began, Misti returned to work and Regan started day care. From June 1999 until this lawsuit was filed, Regan lived with Kevin and Misti in Midland on almost a continuous basis, with Monica seeing Regan on a few occasional weekends. She began seeing her more often around the end of November 1999.

On February 8, 2000, Monica filed a paternity suit in San Angelo alleging Kevin to be Regan's father. The very same day, Kevin filed suit in Midland alleging that he was Regan's biological father and seeking sole managing conservatorship. Monica filed an answer in which she admitted Kevin's paternity. On May 30, 2000, the court in San Angelo entered temporary orders pursuant to which Kevin and Monica alternated weeks of possession. In June, Monica's lawsuit was transferred to Midland and consolidated with Kevin's action. The visitation arrangements continued with Kevin and Misti regularly delivering Regan to Monica and paying for the transportation costs. There were frequent occasions when Monica would call and ask that Kevin and Misti keep Regan an extra week.

On March 20, 2001, without Kevin's knowledge and without the benefit of a court order, Monica, Damin, and Regan obtained parentage testing. The results revealed Damin could not be excluded as the biological father and a 99.8 percent probability² that Damin was the biological father. This disclosure marked the first time that Kevin became aware that he may not be Regan's father. On April 9, Damin filed a petition in intervention seeking to establish his parentage, to be named as a joint managing conservator, to change Regan's surname to Guthrie, and to recover attorney's fees. On April 27, Monica amended her pleadings, alleging for the first time that Damin was Regan's father and joining Damin as an additional respondent to the suit. On May 21, she again amended her petition, requesting an order that would terminate or restrict Kevin's relationship with the child. In furtherance of this goal, Monica told four-year-old Regan that Kevin was not her father. On May 30, Damin filed "Intervenor/Cross-Respondent's Original Answer," the contents of which we recite verbatim:

DAMIN LEE GUTHRIE, Intervenor/Cross-Respondent, files his Original Answer to MONICA DELPHIA SMITH's Original Cross-Petition in Suit Affecting the Parent-Child Relationship and shows:

1. Affirmation

Intervenor/Cross-Respondent affirms the pleadings of MONICA DELPHIA SMITH and affirms that he is the biological father of the child REGAN NICOLE SHOCKLEY.

2. Prayer

Intervenor/Cross-Respondent prays that the relief requested in MONICA DELPHIA SMITH'S Original Cross-Petition in Suit Affecting the Parent-Child Relationship be granted and that DAMIN LEE GUTHRIE be named as the biological father of the child REGAN NICOLE SHOCKLEY, and that Respondent be granted all relief requested in this Original Answer.

Intervenor/Cross-Respondent prays for general relief.

In response to Kevin's motion for summary judgment based upon the statute of limitations, Damin nonsuited his intervention.³ The motion, filed on June 21, 2000, was granted by the court on June 22. He filed no subsequent pleadings although he remained a respondent to Monica's lawsuit.

Following a bench trial before the Honorable Dean Rucker, the trial court adjudicated Kevin as Regan's father and appointed him as the sole managing conservator. In response to Monica's request for findings of fact and conclusions of law, Judge Rucker found that Kevin is the only father Regan has ever known; that Damin had nonsuited his intervention; that Monica should be estopped from denying Kevin's paternity and from seeking an adjudication that Damin is the child's biological father; that it was impossible for Monica and Kevin to share parental rights and duties; and that it was not in Regan's best interest for Monica and Kevin to be appointed joint managing conservators. Neither Monica nor Damin requested additional or amended findings and both have appealed.

STANDING

Damin has appealed the judgment, complaining that he was not designated as the biological father of Regan, which he clearly is. We inquired at oral argument whether he has standing to appeal inasmuch as he nonsuited his intervention prior to trial and the judgment at issue does not impose any obligations upon him whatsoever. Damin responded that despite the nonsuit, he sought affirmative relief in his original answer and having been denied the relief sought, he has standing to appeal. We disagree for the reasons that follow.

First, the nonsuit was filed after the original answer and thus was the last pleading Damin filed. The intervention sought a finding of parentage, appointment as a joint managing conservator, a name change for Regan, and attorney's fees. The answer asked that Monica be granted the relief she sought and that he be named as Regan's biological father. This is the same relief he sought in his intervention and the very cause of action he nonsuited.

Standing focuses on whether the plaintiff has a sufficient personal stake in a controversy. See Nootsie, Ltd. v. Williamson County Appraisal District, 925 S.W.2d 659, 661 (Tex.1996). The issue of standing is purely a question of law for the court to determine. See Cleaver v. George Staton Co., 908 S.W.2d 468, 472 (Tex.App.-Tyler 1995, writ denied). Rule 162 addresses the right of a litigant to dismiss a case or take a nonsuit. Tex.R.Civ.P. 162. In most instances, the party taking a nonsuit is the plaintiff, but a defendant may nonsuit any counterclaims. Similarly, Rule 162 applies to intervenors. Strawder v. Thomas, 846 S.W.2d 51, 59 (Tex.App.-Corpus Christi 1992, no writ); Boswell, O'Toole, Davis & Pickering v. Townsend, 546 S.W.2d 380, 381 (Tex.Civ.App.-Beaumont 1977, no writ). Not all counterclaims are claims for affirmative relief under Rule 162. Michol O'Connor, O'connor's Texas Rules * Civil Trials 2002, Commentaries § 5.3 at 480 (2002). To qualify as a claim for affirmative relief, a pleading must allege a cause of action on which a party could recover, independent of the plaintiff's claim. Id., citing General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex.1990). A claim that simply mirrors the controlling issues is not a claim for affirmative relief. O'Connor, at 480, citing In re Estate of Kidd, 812 S.W.2d 356, 359 (Tex.App.-Amarillo 1991, writ denied). In our view, Damin's original answer did no more than echo Monica's claims and reassert the fundamental claim contained within his intervention—designation as Regan's biological father. The nonsuit operated to abandon his claims for relief, all of which related to the establishment of parentage. In his letter ruling to counsel announcing his decision, Judge Rucker specifically found that Damin had abandoned his requests for affirmative relief:

Monica is the only party with a petition seeking to have Damin adjudicated as Regan's father. Damin initially filed an intervention seeking to be adjudicated as the biological father of the child. However, he filed a notice of nonsuit that was granted by the Court on June 22, 2001. Monica is the only party affirmatively seeking to have Damin adjudicated as Regan's biological father.... Damin, having sought and obtained a nonsuit on his request for affirmative relief, has no independent claim to establish...