Perry v. Merritte

• Decision Date: 24 November 1982
• Docket Number: No. C3026,C3026
• Citation: 643 S.W.2d 496
• Parties: Verna Lee PERRY, Appellant, v. John Drake MERRITTE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 496

643 S.W.2d 496

Verna Lee PERRY, Appellant, v. John Drake MERRITTE, Appellee.

No. C3026.

Court of Appeals of Texas,

Houston (14th Dist.).

Nov. 24, 1982.

Carnegie H. Mims, Jr., Jefferson, Sherman & Mims, Houston, for appellant.

Ramona John, Houston, for appellee.

Before MILLER, MORSE and JAMES, JJ.

MORSE, Justice.

This is an appeal from a judgment of the trial court, wherein the court granted appellee's Motion for Summary Judgment, which was based on the assertion that the action to establish paternity and for support of an illegitimate child was barred by the four-year limitation statute, Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958). The issue is whether that four-year statute of limitations is tolled during the minority of the child by Tex.Rev.Civ.Stat.Ann. art. 5535 (Vernon Supp.1982-1983).

Appellant, Verna Lee Perry, filed this action on behalf of her natural daughter, Danielle Armetra Jackson, to establish that appellee, John Drake Merritte, is the father of the child and to obtain child support from him. The child was born July 12, 1975. Appellant did not file this action until November 8, 1979, over four years from the child's date of birth. Appellee pled both "Texas Family Code Title 2, Section 13.01" and the general four-year statute of limitations under Art. 5529 in bar of the action, but moved for summary judgment only on the latter basis. ¹ The trial court sustained the motion and dismissed the action. Verna Lee Perry has duly perfected an appeal from that judgment to this Court.

Appellant comes before this court with two points of error. In her first point of error, appellant contends that the trial court erred in granting appellee's Motion for Summary Judgment because only the four-year limitation statute, Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958), (and not Sec. 13.01--as originally passed or as amended in 1981) is applicable in this case and is tolled during the minority of the child by Tex.Rev.Civ.Stat.Ann. art. 5535. We agree.

Appellant's second point of error is that the trial court erred in granting appellee's Motion for Summary Judgment, because the four-year limitation statute, as the trial court applied it, deprives the child of equal protection of the law as guaranteed under Tex.Const. art. I, Sec. 19, and U.S.Const.Amend., 14. Because we are sustaining appellant's first point of error it is not necessary to discuss the merits of the second point of error.

With regard to her first point of error, we agree with appellant that the four-year limitations statute applies in this case and is tolled during the minority of the child by the tolling provisions of art. 5535. ² The child which is the subject of this action was born on July 12, 1975. Section 13.01 of the Family Code became effective on September 1, 1975 and established a statutory procedure for involuntary paternity actions in lieu of the common law remedy which was found in Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973), to be the constitutional entitlement of illegitimate children, as well as of legitimate children as previously recognized. However, Sec. 13.01 of the Family Code is inapplicable in this case, because it is not applied retroactively. Therefore, Sec. 13.01 applies only to those suits to establish paternity of children born out of wedlock after September 1, 1975, the effective date of the statute. Alvarado v. Gonzales, 552 S.W.2d 539 (Tex.Civ.App.--Corpus Christi 1977, no writ); Catchings v. Hamm, 560 S.W.2d 194 (Tex.Civ.App.--Waco 1977, no writ); State Dept. of Public Welfare v. Martin, 562 S.W.2d 9 (Tex.Civ.App.--Eastland 1978, no writ); Prejean v. Prejean, 592 S.W.2d 660 (Tex.Civ.App.--Beaumont 1979, no writ).

Originally Sec. 13.01 required paternity suits to be filed before the child reached one year of age. After that short time limit was held unconstitutional by In Re Miller, 605 S.W.2d 332 (Tex.Civ.App.--Fort Worth 1980), aff'd, 631 S.W.2d 730 (Tex.1982), the Texas Act was amended effective September 1, 1981, to allow suit to be brought until age four years, but not thereafter. Under the reasoning of Alvarado v. Gonzales, supra, the statute as amended is also inapplicable herein, the amending act not having been expressly effective retroactively.

In Texas Dept. of Human Resources v. Delley, 581 S.W.2d 519 (Tex.Civ.App.--Dallas 1979, writ ref'd n.r.e.) the Court of Civil Appeals agreed and also held that the general four-year limitations statute under Art. 5529 was applicable to such a paternity suit on behalf of an illegitimate child, but was tolled during the minority of the child by Art. 5535. Appellee in his brief attempts to distinguish the Delley case from the present case, in that in the former case the father admitted paternity of the child and in the latter the father is denying paternity of the child. This distinction does not alter the outcome of this suit because establishment of paternity by judgment in a suit is a prerequisite to obtaining child support for an illegitimate child. In the Delley case the matter of establishing paternity of the child before child support could be sought was merely hastened by the father's admission that he was in fact the father of the child; regardless of how proved, the suit was required to be filed in order to obtain a paternity adjudication and was held not barred.

The appellee argues that it would be illogical and a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution to toll during minority the four-year limitations statute as to...