Zimmerman v. Zimmerman, 697

• Decision Date: 22 November 1972
• Docket Number: No. 697,697
• Citation: 488 S.W.2d 184
• Parties: William T. ZIMMERMAN, Appellant, v. Sherry Lynn ZIMMERMAN (Jones), Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 184

488 S.W.2d 184

William T. ZIMMERMAN, Appellant, v. Sherry Lynn ZIMMERMAN (Jones), Appellee.

No. 697.

Court of Civil Appeals of Texas,

Houston (14th Dist.).

Nov. 22, 1972.

Hollis Cordray, Walter H. Horne, Law Office of J. Edwin Smith, Houston, for appellant.

Joe Hegar, Bill Richards, Houston, for appellee.

SAM D. JOHNSON, Justice.

This is a suit brought by appellee Sherry Lynn Zimmerman against her former husband, appellant William Thomas Zimmerman, for the custody and support of their minor child. The suit is based on the provisions of Vernon's Tex.Rev.Civ.Stat.Ann. art. 4639c, sec. 1 (1959) which reads as follows:

'When the marriage relation no longer exists as a result of divorce action in a foreign jurisdiction, in which the court granting the decree was silent as to custody and support of a child or children under eighteen (18) years of age, a suit for the custody and support of such child or children may be brought in the district court against any parent who fails to provide for the support and maintenance of his or her child or children under eighteen (18) years of age. Such suit may be brought by either parent and shall be brought in the county where the said children actually reside.'

The parties were married on August 5, 1966. They lived together as husband and wife, except for a short period of separation, until August, 1968. Although the exact date of appellant's departure from Harris County was in controversy, it is undisputed that appellant moved to Clark County, Nevada, sometime during August, 1968, where he established his residence and obtained a decree of divorce from the appellee on November 22, 1968. The child, whose custody and support appellee seeks in this cause, was born on May 18, 1969, or almost six months subsequent to the date of the divorce decree. Appellant, in his answer, specifically denies that he is the father of the child. However, the trial court judgment, drawing the appropriate legal conclusion from the jury's findings, declares that the appellant is the child's legal father. The two jury findings are that the child was conceived during the marriage of the parties and that the appellant had access to the appellee, access being defined as such access as affords an opportunity for sexual intercourse. See Burtis v. Weiser, 195 S.W.2d 841 (Tex.Civ.App.--Beaumont 1946, writ ref'd). It should be noted that an affirmative finding of access was unnecessary as only an affirmative finding of non-access (or impotence) would overcome the presumption that the child was the legitimate issue of the lawful marriage during which it was conceived. Esparza v. Esparza, 382 S.W.2d 162 (Tex.Civ.App.--Corpus Christi 1964, no writ).

The trial court granted custody of the child to appellee and ordered appellant to make monthly payments for the child's support.

In his first point of error appellant contends that the trial court was without jurisdiction of the subject matter in this cause. He bases this contention on two alternative grounds. First he argues that this suit is one to establish paternity and that the statute which created the Court of Domestic Relations No. 2 for Harris County, Texas does not grant jurisdiction over such litigation. We disagree. This is not primarily a paternity suit but rather a suit brought pursuant to Tex.Rev.Civ.Stat.Ann. art. 4639c (1959) for support and maintenance of a minor child. The determination of paternity is simply a collateral matter and not the ultimate purpose of the suit. The statute which created the Court of Domestic Relations No. 2 for Harris County, Texas, Tex.Rev.Civ.Stat.Ann. art. 2338--11 (1959) is amply broad to encompass the subject matter of the suit, including collateral issues such as paternity. The statute provides in Section 3, the pertinent part thereof, that:

'The Court of Domestic Relations No. 2 for Harris County . . . shall have the jurisdiction concurrent with the District Courts in Harris County . . . of all divorce and marriage annulment cases, including the adjustment of property rights and custody and support of minor children involved therein . . . and any and every other matter incident to divorce or annulment proceedings as well As independent actions involving child custody or support of minors . . . and all other cases involving justiciable controversies and differences between spouses, or between parents . . . which are or may hereafter be, within the jurisdiction of the District or County Courts . . ..' (Emphasis added.)

As an alternative attack on the jurisdiction of the trial court, appellant argues that the Nevada court which granted the parties' divorce still retains jurisdiction of the question whether there were any children born of this union. This is based on the contention that the Nevada court affirmatively found that there were no children born of the marriage and consequently appellee could obtain child support only by seeking modification of the divorce decree in the Nevada court. Appellant argues that full faith and credit must be given to the foreign judgment.

Upon examination of the record, we find among the exhibits certified copies of the papers filed in the Nevada proceedings. In the Complaint for Divorce it is alleged that 'There are no minor children the issue of said marriage.' In the Decree of Divorce the Nevada Court finds 'that all of the allegations of Plaintiff's Complaint are true.' Also among the papers is the Reporter's Transcript of the testimony heard by the Nevada Court. At no time was there any mention whatsoever of children of the marriage. Particularly, there was no mention of expectancy of issue of this marriage which...