In the Interest of J.D.J., A Minor Child--Appeal from 407th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-02-00577-CV

IN THE INTEREST OF J.D.J.

From the 407th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-PA-00073

Honorable David Peeples, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: May 14, 2003

AFFIRMED

This is an appeal from the trial court's judgment dismissing appellant's suit to determine parentage of the minor child, J.D.J. Because appellant's suit was time-barred, we affirm.

BACKGROUND

From the summer of 1989 through January 2001, appellant, Richard Martin, and appellee, Simmone Johns, engaged in a sexual relationship. During this time, Simmone was married to appellee, Ron Johns. In January 1995, Simmone told Richard she was pregnant. The child, J.D.J., was born on September 26, 1995. In November 2001, Simmone told Ron that J.D.J. was not his son. A "Paternity Parentage Test" dated January 1, 2002 revealed, with 99.998% certainty, that Richard was J.D.J.'s biological father. On January 15, 2002, Richard filed an Original Petition for Acknowledgment of Paternity of A Child, in which he asked the trial court to adjudge him as J.D.J.'s father pursuant to Family Code section 160.110. On February 1, 2002, the Johns answered, raised the affirmative defense of limitations, and asked that Ron be adjudicated J.D.J.'s father. On that same date, the Johns also filed a motion for summary judgment, in which they asserted section 160.110 had been repealed, Richard's suit was time-barred under Family Code section 160.607, and the paternity parentage test was inadmissible under Family Code 160.621(c)(1). On February 25, 2002, Richard filed a first amended petition, deleting any reference to a specific Family Code provision. On February 26, 2002, Richard responded to the Johns' motion for summary judgment, asserting a fact issue existed as to whether Simmone lived with Ron or engaged in sexual intercourse with Ron during the probable time of J.D.J.'s conception. On March 6, 2002, the trial court recessed the hearing on the motion for summary judgment to allow for depositions, following which Richard was ordered to file a supplemental response to the motion for summary judgment on the issue of whether Ron ever treated J.D.J. as his own child. On April 4, 2002, Richard filed a second amended petition, in which he argued that Family Code section 160.607 had no application to this case. On June 13, 2002, the trial court found that Richard's suit was time-barred, found that the paternity test was inadmissible, dismissed the suit, and adjudged Ron as J.D.J.'s father. In his motion for new trial, Richard alleged the application of section 160.607 was not in effect when J.D.J. was born and its application here was an unconstitutional retroactive application of the law. The record does not contain a ruling on the motion for new trial. This appeal by Richard ensued.

DISCUSSION

On appeal, Richard challenges the summary judgment on a single ground: the retroactive application of the statute of limitations set forth in section 160.607 violates the Fourteenth Amendment to the United States Constitution and the protections afforded under the Texas Constitution, including equal rights, equal protection, and the open courts provision.

Richard contends his cause of action accrued on the date of J.D.J.'s birth, September 26, 1995. He asserts that the limitations period contained in former Family Code Title 2, Chapter 13, section 13.01 should have been applied because it was in effect on September 26, 1995. Former section 13.01 provided that a suit to establish paternity "must be brought on or before the second anniversary of the day the child becomes an adult, or the suit is barred." (1) However, effective April 20, 1995, Title 2 of the Family Code as it existed before April 20, 1995 was repealed. (2) Effective April 20, 1995, former Family Code section 160.110 was enacted, and this section set forth certain presumptions and the burden of proof carried by a party denying a presumed father's paternity of a child; (3) however, it did not contain a statute of limitations period. Effective September 1, 1995, section 160.110 was amended to add subsection (f), which provided as follows:

The court shall dismiss a suit contesting a presumption of paternity filed by a man who is not the presumed father, but alleges himself to be the biological father of a child, if:

(1) the suit is filed after the second anniversary of the later of:

(A) the date of the birth of the child; or

(B) the time the presumption of paternity came into existence after the child was born; and

(2) the presumed father:

(A) has resided in the same household as the child in a father-child relationship or has established a father-child relationship with the child through is own actions; and

(B) requests an order designating him as the father of the child. (4)

Thus, contrary to Richard's assertions on appeal, former section 160.110(f) was in effect on the date of J.D.J.'s birth.

Effective June 14, 2001, former section 160.110 was deleted from the Family Code and current section 160.607 was added. (5) Section 160.607 provides as follows:

(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.

(b) A proceeding seeking to disprove the father-child relationship between a child and the child's presumed father may be maintained at any time if the court determines that:

(1) the presumed father and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception; and (2) the presumed father never openly treated the child as his own.

Tex. Fam. Code Ann. 160.607 (Vernon 2002).

Richard commenced his suit on January 15, 2002. Accepting his contention that his cause of action accrued on September 26, 1995, under former section 160.110 the limitations period ran in September 1997, and under current section 160.607 the limitations period ran in September 1999. Accordingly, we need not reach the issue of whether application of the limitations period contained in section 160.607 violated Richard's constitutional rights because even under the statute in effect on the date of J.D.J.'s birth, Richard's suit was time-barred.

Also, a parentage proceeding may be brought at any time if the presumed father and the child's mother did not engage in sexual intercourse with each other during the probable time of conception, and the presumed father never openly treated the child as his own. Tex. Fam. Code Ann. 160.607(b). The trial court recessed the hearing on the Johns' motion for summary judgment and allowed Richard to depose certain individuals to establish whether Ron had ever treated J.D.J. as his own child. Richard did not take any depositions or file a supplemental response to the motion for summary judgment; instead, he merely filed a second amended petition. Thus, although Richard had the opportunity to defeat the Johns' entitlement to summary judgment on their limitations defense, he did not do so.

CONCLUSION

We overrule Richard's issue on appeal and affirm the trial court's judgment.

Sandee Bryan Marion, Justice

1. Former Tex. Fam. Code Ann. 13.01, Act of 1993, 73rd Leg., R.S., ch. 730, 4, 1993 Tex. Gen. Laws 2863, 2864.

2. Act of April 20, 1995, 74th Leg., R.S., ch. 20, 1, 1995 Tex. Gen. Laws 113, 282.

3. Act of April 20, 1995, 74th Leg., R.S., ch. 20, 1, 1995 Tex. Gen. Laws 113, 211.

4. Act of Sept. 1, 1995, 74th Leg., R.S., ch. 751, 63, 1995 Tex. Gen. Laws 3888, 3909-3910.

5. Act of June 14, 2001, 77th Leg., R.S., ch. 821, 1.01, 2001 Tex. Gen. Laws 1610, 1621-1630.