L.P.D. v. R.C.

• Decision Date: 29 January 1998
• Docket Number: No. 03-97-00008-CV,03-97-00008-CV
• Citation: 959 S.W.2d 728
• Parties: L.P.D., Appellant, v. R.C., Appellee.
• Court: Texas Court of Appeals

Page 728

959 S.W.2d 728

L.P.D., Appellant, v. R.C., Appellee.

No. 03-97-00008-CV.

Court of Appeals of Texas Austin.

Jan. 29, 1998.

Rehearing Overruled Feb. 26, 1998.

Kristin K. Proctor, Law Offices of Edwin J. (Ted) Terry, Austin, for Appellant.

Brad Wiewel, James A. Vaught, Zelle & Larson, L.L.P., Austin, for Appellee.

Before POWERS, ABOUSSIE and B.A. SMITH. JJ.

BEA ANN SMITH, Justice.

At issue in this appeal is whether the trial court abused its discretion in failing to appoint an attorney ad litem to represent the child's interests in this voluntary paternity action resolved by a default judgment. Concluding that it did, we will reverse the trial-court judgment.

THE DISPUTE

While living in Texas, L.P.D. bore a child, J.A.C., out of wedlock. She then moved to Philadelphia with J.A.C. when the child was two and one-half years old. Five months later, R.C. filed a voluntary paternity action. See Tex. Fam.Code Ann. § 160.201 (West 1996). The trial court rendered a default judgment in favor of R.C. after L.P.D. failed to appear in court. The child was not present at the proceeding. The judgment declares that R.C. is J.A.C.'s father and appoints L.P.D. and R.C. as joint managing conservators of the child. L.P.D. appeals by five points of error, alleging in four points that the trial court erred by signing the decree of paternity without naming an attorney ad litem to represent the child because such failure was an abuse of discretion under the Family Code, or in the alternative because the Family Code's failure to require such representation violates the equal protection and due process guarantees of the federal and state constitutions. In a fifth point of error, appellant claims the trial court erred in naming R.C. a joint managing conservator under the circumstances of this case without any evidence concerning the child's best interest.

DISCUSSION

Procedural Posture

L.P.D. appeals by writ of error. ¹ To appeal by writ of error, she must demonstrate that (1) she is a party to the suit, (2) she filed her petition for writ of error within six months of judgment; (3) she did not participate at trial; and (4) error is apparent on the face of the record. See Brown v. McLennan County Children's Protective Servs., 627 S.W.2d 390, 392 (Tex.1982); Jaramillo v. Liberty Mut. Fire Ins. Co., 694 S.W.2d 585, 587 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.).

The only requirement at issue in this appeal is whether error is apparent on the face of the record. The record consists of all papers filed with the trial court, including the clerk's record and the reporter's record. See DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551 (Tex.1991).

Analysis of the Merits

By point of error four, L.P.D. complains that the trial court abused its discretion by failing to appoint an attorney ad litem to represent J.A.C.'s interest.

A child's interest in determining his parentage includes obtaining support, legitimacy, and possible inheritance rights. See R.M.H. v. Messick, 828 S.W.2d 226, 230 (Tex.App.--Fort Worth 1992, no writ). A child's interest in determining his parentage is not necessarily coextensive with his parent's. See id.

In a paternity proceeding the child is not a necessary party, and in a trial on the merits it is rebuttably presumed that the interests of the child will be adequately represented by the party bringing suit to determine parentage. Tex. Fam.Code Ann. § 160.003(a), (b); see R.M.H., 828 S.W.2d at 228-29. However, if the court finds that the child's interests will not be adequately represented by a party to the suit or that the child's interests may be adverse to that party's interests, the court shall appoint an attorney ad litem to represent the child. Tex. Fam.Code Ann. § 160.003(b) (emphasis added).

Section 160.003(c) states that a "child shall be represented in a settlement agreement, dismissal, or nonsuit by a guardian ad litem or an attorney ad litem unless the court finds on the record that the interests of the child will be adequately represented by a party to the suit." Id. § 160.003(c). Although the present case involves a default judgment rather than a settlement agreement, dismissal, or nonsuit, the section demonstrates a preference for ad litem representation for the child in situations in which the child's parentage will be resolved other than by a trial on the merits. In any circumstance, both subsections (b) and (c) contain the same underlying concern: that the interests of the child be adequately represented. Id. § 160.003(b), (c). Moreover, the Family Code generally mandates the appointment of an attorney ad litem for any party in a case in which the court deems representation necessary to protect the interests of the child who is the subject matter of the suit. Tex. Fam.Code Ann. § 107.011(b).

A trial court exercises its discretion in deciding whether to appoint an ad litem in paternity proceedings. In re J.D.G., 940 S.W.2d 246, 248-49 (Tex.App.--San Antonio 1997, no writ); cf. McGough v. First Court of Appeals, 842 S.W.2d 637, 640 (Tex.1992) (appointment of new guardian ad litem in personal injury litigation was not abuse of discretion). Its decision is reviewed for an abuse of discretion. Id. The issue is whether circumstances exist which would cause a prudent trial judge to believe that the appointment of an attorney was necessary to adequately represent and protect the child's interest. Cf. Swearingen v. Swearingen, 578 S.W.2d 829, 831 (Tex.Civ.App.--Houston [1st Dist.] 1979, writ dism'd w.o.j.) (no need to appoint ad litem in divorce action if no circumstances indicate need for one).

The petition reveals that at the time R.C. filed the voluntary statement of paternity, he was fifty-three years old, L.P.D. was twenty-one years old, and J.A.C. had just turned three years old. The petition states that L.P.D. and J.A.C. had moved to Pennsylvania five months previously.

The reporter's record is exceedingly slim: only nine pages, the bulk of which merely recites R.C.'s request for standard possession. R.C.'s affidavit shows that J.A.C. did not reside with him at any time. All in all, the sparse record does not demonstrate that R.C. ever had any contact or any relationship with J.A.C. There is no evidence that any attempt was made by R.C. to establish a relationship with J.A.C. nor any evidence that such an attempt was thwarted by L.P.D. Nor does the record include any evidence of R.C.'s employment, lifestyle, or affection for J.A.C. The record does show that R.C. and L.P.D. were never married, but that L.P.D. has since married another. R.C. admitted that L.P.D. and the child no longer live in Texas, and that the paternity suit was brought five months after mother and child moved to Pennsylvania. The default judgment was granted only thirty-three days after L.P.D. was served. In addition to declaring R.C. the father of J.A.C., the order also appoints R.C. and L.P.D. joint managing conservators of the child and requires this three-year-old to fly back and forth to Texas once a month with an escort and expenses to be split between the parties. There were no blood tests or any other evidence in the record establishing the parent-child relationship between R.C. and J.A.C. other than R.C.'s sworn statement that he is the biological father of this child.

When there is no person before the court who has had care and custody of the child, or understands the child's interests through another relationship, or even professes to have met the child, we hold the presumption that the party bringing suit will adequately represent the child's interest has been rebutted as a matter of law. ² There was simply no party present at this...