Treto v. Treto

• Decision Date: 23 January 2020
• Docket Number: NUMBER 13-18-00219-CV
• Citation: 622 S.W.3d 397
• Parties: Jennifer Marie TRETO, Appellant, v. Sandra Lilibeth Ortega TRETO, Appellee.
• Court: Texas Court of Appeals

622 S.W.3d 397

Jennifer Marie TRETO, Appellant,

v.Sandra Lilibeth Ortega TRETO, Appellee.

NUMBER 13-18-00219-CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed January 23, 2020

Lawrence J. Rabb, for Appellee.

Alberto Garcia, for Appellant.

Before Chief Justice Contreras and Justices Benavides and Longoria

Opinion by Justice Benavides

Appellant Jennifer Marie Treto appeals from a final divorce decree from appellee Sandra Lilibeth Ortega Treto that established Jennifer as a parental conservator and ordered her to pay child support. By a single issue, Jennifer argues that the trial court erred by so ruling when she has no biological relationship to the child. We affirm.

I. BACKGROUND

Jennifer and Sandra were married in New Mexico in August 2014, after about a year of dating. They were divorced on October 16, 2017, in an uncontested proceeding after Jennifer signed a waiver of service. Jennifer filed a motion for new trial. After the trial court granted the motion for new trial, a contested hearing was held in March 2018 from which this appeal is taken.

Both Jennifer and Sandra testified at trial, as did Cesar Gomez. At the time Jennifer and Sandra were married, Jennifer had a one-year-old child unrelated to their relationship. Before they married, they discussed having a child together. Sandra was very interested in having a child, according to Jennifer's testimony. At first, they discussed Sandra continuing to be sexually active with her former boyfriend to get pregnant. After they married, Gomez, one of their friends, volunteered to donate sperm to help them. They met with Gomez and reached an oral agreement that he would be a sperm donor. They agreed to pay Gomez $200 for each sperm donation.

Sandra and Jennifer agreed that Sandra would carry the child. They bought an ovulation kit and began tracking Sandra's menstruation and ovulation. Sandra also began taking prenatal vitamins

. In October 2014, they contacted Gomez and asked him to come to their apartment for a sperm donation because Sandra was ovulating. He used their bathroom and ejaculated into a sterile cup the women provided. Gomez gave the cup to Jennifer who injected the sperm to inseminate Sandra. Two weeks later, Jennifer bought home pregnancy tests and Sandra got a positive test result.

During Sandra's pregnancy, Jennifer accompanied her to nearly all of her doctor visits and went to both sonogram

appointments. Friends held a baby shower for the two of them in May 2015. Jennifer was at the hospital when the baby was born by cesarean section. Both women took family leave from work to be home with the baby in July 2015. In January 2016, Jennifer moved out and Sandra later filed for divorce.

II. PARENTAL RIGHTS

Jennifer argues that the Texas Family Code defines "parents" in terms of a mother and a father and those definitions preclude the trial court's ruling declaring her a parent conservator and ordering child support. See TEX. FAM. CODE ANN. §§ 101.024, 102.003(a)(9) (limiting standing for nonparents to seek conservatorship when they have had actual care and control of a child). On the other hand, Sandra argues that the Texas Family Code must be read in accord with the United States' Supreme Court's recognition of same-sex marriage in Obergefell v. Hodges , 576 U.S. 644, 135 S.Ct. 2584, 2607–08, 192 L.Ed.2d 609 (2015), and its recognition that a host of other benefits are attached to marital status that may not be denied to same sex couples. See Pavan v. Smith , ––– U.S. ––––, 137 S.Ct. 2075, 2078–79, 198 L.Ed.2d 636 (2017) (holding that an Arkansas statute that treated children of same-sex married couples differently than married heterosexual couples was unconstitutional).

A. Standard of Review

We review a trial court's orders arising out of divorce proceedings, child custody, child support, and visitation for an abuse of discretion. Iliff v. Iliff , 339 S.W.3d 74, 78 (Tex. 2011) ; MacCallum v. MacCallum , 801 S.W.2d 579, 582 (Tex. App.—Corpus Christi–Edinburg 1990, writ denied). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court also abuses its discretion by failing to analyze or apply the law correctly. Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

When Texas law conflicts with federal constitutional rights as set forth by the United States Supreme Court, the constitutional rights as declared become the law of the land. See Avery v. Midland County , 390 U.S. 474, 485–86, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968) (declaring that apportionment of Midland County Commissioners' districts violated the equal protection clause); McKinney v. Blankenship , 154 Tex. 632, 282 S.W.2d 691, 695 (1955) (recognizing the overruling of Texas constitutional and statutory provisions by Brown v. Board of Education of Topeka , 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) ).

B. Texas Statutory Law Relating to Children of a Marriage

By her single issue, Jennifer argues that the trial judge erred as a matter of law by ruling that she is a parent and ordering her to pay child support for the child born by Sandra during their marriage. To understand Jennifer's argument, we must first review the Texas Family Code.

Under the family code, a "parent" is defined to be: "the mother, a man presumed to be the father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive mother or father." TEX. FAM. CODE ANN. § 101.024(a). A suit affecting the parent-child relationship may be filed at any time by: a parent of the child, a custodian or person having the right of visitation with or access to the child appointed by an order of a court; a child's guardian; a man alleging himself to be the child's father in accord with Chapter 160; a person who has had actual care, control and possession of the child for at least six months ending not longer than ninety days before suit was filed; and other persons specified in § 102.003. See id. § 102.003.

In 2000, the Texas Legislature adopted the Uniform Parentage Act (UPA). See Act of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610. Chapter 160 of the family code defines parentage. See TEX. FAM. CODE ANN. ch. 160. Under the family code, the mother-child relationship is established between a woman and child by: giving birth, adjudication of maternity, or adoption. See id. § 160.201(a). The father-child relationship is established between a man and a child by: an unrebutted presumption of paternity pursuant to § 160.204; an effective acknowledgement of paternity; an adjudication of paternity; adoption; or the man's consent to assisted reproduction by his wife under Subchapter H that resulted in the birth of the child. Id. §§ 160.201(b), 160.703. A man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage. See id. § 160.204(a)(1). Section 160.106 also provides that "[t]he provisions of this chapter relating to the determination of paternity apply to a determination of maternity." Id. § 160.106.

C. Analysis

Jennifer's argument that she is not a parent of the child is two-pronged: (1) she is not related to the child biologically, and (2) the family code does not recognize her as a parent. However, Jennifer ignores the portions of the family code that do not require a biological relationship to qualify as a parent, and specifically § 160.106 which provides that maternity may be established in the same way as paternity under the family code. See TEX. FAM. CODE ANN. §§ 101.024(a), 160.106, 160.204.

Jennifer cites In re P.S. which stands for the proposition that self-help artificial insemination (not performed by a physician) enables the man who donated sperm to be named as a father to the child produced by insemination. See 505 S.W.3d 106, 110 (Tex. App.—Fort Worth 2016, no pet.) (construing TEX. FAM. CODE ANN. § 160.102(6) ). However, in this case, that argument is inapposite because the trial court did not find that Gomez, the sperm donor, was the father and Gomez did not seek to be named the father unlike M.S., the biological father of P.S. Id. at 110. Here, the issue is whether the same-sex spouse of a woman who conceived a child using self-help artificial insemination with the intention of having a child of the marriage is a parent of that child and thereby entitled to all of the liabilities and benefits of parenthood under the Texas Family Code.¹

The facts testified to by both parties reveal that they do not fit within the statutory definitions which contemplate traditional gender roles and marriage between a man and a woman. If gender was not an issue, Jennifer would constitute a presumed "father" because she was married to Sandra at the time Sandra became pregnant and the child was born of the marriage. See TEX. FAM. CODE ANN. § 160.204(a)(1).

1. Section 160.106

There was a common-law presumption that a child born to a married woman during marriage was a child of the marriage. See In re Shockley , 123 S.W.3d 642, 648–49 (Tex. App.—El Paso 2003, no pet.) (discussing history of marital presumption). That presumption was later codified in Texas law. See TEX. FAM. CODE ANN. § 160.204(a)(1). Although that presumption was once based upon concerns about illegitimacy and ensuring inheritance, the presumption also promoted family stability. See In re J.W.T. , 872 S.W.2d 189, 195 (Tex. 1994) (discussing history of marital presumption). Section 160.106 states that: "The provisions of this chapter relating to the determination of paternity apply to a determination of maternity." Id. § 160.106.

Other state courts that have adopted the UPA have concluded that the marital presumption applies to non-gestational mothers in same-sex relationships....