Marvin Henderson v. Karen Lou Wietzikoski--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-91-173-CV

MARVIN HENDERSON,

Appellant

v.

KAREN LOU WIETZIKOSKI,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # T-114-A

O P I N I O N

The question presented is whether a person claiming to be the natural father of a child who has a "presumed father" can maintain a suit to establish his paternity. We will follow the decision of the Beaumont Court of Appeals in holding that section 11.03(a)(7) of the Family Code violates the due-course-of-law clause of article I, section 19, of the Texas Constitution. See Tex. Const. art. I, 19; Tex. Fam. Code Ann. 11.03(a)(7) (Vernon Supp. 1992); Gibson v. In the Interest of J.W.T, 815 S.W.2d 863, 869 (Tex. App. Beaumont 1991, writ granted). We also determine that section 11.03(a)(7) of the Family Code violates the Texas Equal Rights Amendment, article I, section 3a, of the Texas Constitution, but does not violate the Open Courts provision of article I, section 13. See Tex. Const. art. I, 3a, 13. Accordingly, we will reverse the judgment and remand the cause for trial.

PROCEDURAL BACKGROUND

Marvin Henderson filed a petition to establish a parent-child relationship alleging among other things that: (1) he is the biological father of J.R.W. and has standing to bring the suit under section 11.03(a)(7) of the Family Code; (2) he has standing under section 11.03(b) of the Family Code because of substantial past contact with the child; (3) the "presumed father of the child is Kenneth Wietzikoski, the husband of Karen Wietzikoski," the child's mother; (4) he is a "presumed father pursuant to [section] 12.02 of the Texas Family Code"; (5) because of section 12.01(b) of the Family Code, the legal presumption that Kenneth is the father of J.R.W. may be rebutted by a decree establishing Henderson's paternity of J.R.W.; (6) appointment of a managing conservator is necessary; and (7) a denial of his right to maintain the suit would violate his rights to due process under the state and federal constitutions. He also filed a "Statement of Paternity," in which he acknowledged that he is the biological father of J.R.W. Karen filed special exceptions alleging that Henderson could not maintain the action because the child has a presumed father, Kenneth. She also denied that Henderson is the biological father of J.R.W., that a managing conservator is necessary, and that the best interest of the child would be served by appointing Henderson. The court sustained the special exceptions and ordered that all of Henderson's allegations of paternity be stricken from his pleadings but reserved a ruling on his allegations that he should be appointed as a managing conservator of J.R.W. The court then severed Henderson's cause of action regarding paternity from his cause of action seeking conservatorship of the child, making the order sustaining the special exceptions final. After his motion for a new trial was denied, Henderson perfected this appeal.

THE CONTENTIONS ON APPEAL

Henderson asserts in five points that his right to bring the suit is constitutionally protected, that a denial of his right to maintain the suit violates the "open courts" provision of the state constitution, that the court's order granting the special exceptions misinterprets the Family Code, that the order "results in gross injustice and inequity and violates public policy," and that the court failed to consider the best interest of the child. Under point one, he asserts that section 11.03(a)(7) of the Family Code violates both the due-process and equality-under-the-law provisions of the Texas Bill of Rights.

THE STATUTE

Section 11.03 of the Family Code provides:

11.03 Who May Bring Suit

(a) An original suit affecting the parent-child relationship may be brought at any time by:

(1) a parent of the child;

(2) the child (through a representative authorized by the court);

. . .

(7) a man alleging himself to be the biological father of a child who has no presumed father filing in accordance with Chapter 13 of this code, but not otherwise;

Tex. Fam. Code Ann. 11.03 (emphasis added). In a 1989 amendment, the words "a man . . . alleging himself to be the biological father of a child who has no presumed father" replaced the words "the alleged or probable father of an illegitimate child." Act of May 29, 1989, 71st Leg., R.S., ch. 375, 2, 1989 Tex. Gen. Laws 1477, 1477-78.

DUE COURSE OF LAW

The facts of this case are substantially the same as the facts of Gibson. See Gibson, 815 S.W.2d at 864-65. In each case, a man not married to the child's mother is attempting to establish a parent-child relationship with a child who has a presumed father. In each case, the man asserts that the provisions of the Family Code precluding such an action violate the due-course-of-law provision of the state constitution. In each case, the trial court has summarily denied the man the right to attempt to establish a parent-child relationship with the child. Consequently, we will follow the decision in Gibson holding that section 11.03(a)(7) of the Family Code violates article I, section 19, of the Constitution of the State of Texas. See id.

TEXAS EQUAL RIGHTS AMENDMENT

Henderson asserts that section 11.03(a)(7) of the Family Code violates the Texas Equal Rights Amendment. // Since 1972, the Texas Constitution has guaranteed that equality shall not be denied because of sex. Tex. Const. art. I, 3a. Section 3a of article I provides:

Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin. This amendment is self-operative.

Id. Because no federal counterpart of the Equal Rights Amendment exists, federal precedent cannot control. In Interest of McLean, 725 S.W.2d 696, 697 (Tex. 1987). Thus, our decision rests on independent state grounds under the Texas Constitution. See Michigan v. Long, 463 U.S. 1032, 1041, 103 S. Ct. 3469, 3476, 77 L. Ed. 2d 1201 (1983).

In assessing Henderson's equal-rights assertion, we will follow the analysis used by the Supreme Court in McLean. See McLean, 725 S.W.2d at 697-98. Billy Dean Wise was the undisputed father of a child born to an unwed mother. Id. at 696. Although married to another woman, he sought to be named managing conservator of the child after the mother placed the child for adoption. Id. The trial court denied Wise's suit for legitimation and appointed the Child Welfare Unit as managing conservator of the child. Id. On appeal, he contended that sections 13.21(b) and (c) of the Family Code violated the Texas Equal Rights Amendment. Id. at 697. The Supreme Court agreed, holding that a father seeking a decree of legitimation should not, when the mother has not consented to the decree, be required to prove that such a decree is in the best interest of the child a higher standard of proof solely because he is a male. Id. at 698.

The first step in a case invoking the Texas Equal Rights Amendment is to determine whether equality "under the law" has been denied. Id. at 697. Any discrimination that occurred in denying Henderson's suit to establish paternity is clearly "under the law" because it is mandated by a state statute. See id. Our next inquiry is whether equality was denied because of a person's membership in a protected class of sex, race, color, creed, or national origin. Our task is to examine the Family Code to see if it treats Henderson differently because he is a male. See id.

When a child is born, its mother automatically exercises all of the rights, duties, and privileges of a parent in the parent-child relationship. Tex. Fam. Code Ann. 12.04 (Vernon Supp. 1992); McLean, 725 S.W.2d at 697. Circumstances are different for the father of a child born to a woman who is married to someone else. Section 11.03(a)(7) of the Family Code stands as a complete bar to such a father who nevertheless wants to step forward and shoulder the responsibilities of a parent. Tex. Fam. Code Ann. 11.03(a)(7). It does so by denying that father the right to bring a suit to establish his paternity. Id. The mother, however, can bring such a suit to establish that relationship. Id. 11.03(a)(1). This is a gender-based distinction because only men such as Henderson and those who are similarly situated are denied the right to bring a suit to establish the parent-child relationship. Whereas McLean involved only a higher burden of proof, Henderson is confronted with a statute that denies him the right to even present proof. See McLean, 725 S.W.2d at 697.

Because the challenged statute discriminates on the basis of gender, we must determine whether such discrimination is prohibited by the Equal Rights Amendment. See id. The Equal Rights Amendment is more extensive and provides more specific protection than both the United States and Texas due-process and equal-protection guarantees. Id. at 698. The standard of review recognizes that the Amendment does not yield except to compelling state interests. Id. Equality based on sex is afforded maximum constitutional protection. Id. Even the loftiest goal does not justify sex-based discrimination in light of this clear constitutional prohibition. Id. Discrimination is allowed only when its proponent can prove that there is no other manner to protect the state's compelling interest. Id.

We recognize that the State has an interest in preserving the unity of a marriage. The State also has an interest in the welfare of children, an interest that it exercises by regulating the parent-child relationship and defining the rights, privileges, duties, and powers of parents. // Tex. Fam. Code Ann. 12.04. Under the circumstances of this case, these interests compete. Lord Mansfield's rule, proclaimed in 1777, declared as a policy that "a couple, after the birth of a child in wedlock, would not be heard to say that they have had no connection and their offspring is spurious." Barnett v. Barnett, 451 S.W.2d 939, 940 (Tex. Civ. App. Beaumont 1970, writ dism'd) (quoting Clark v. State of Maryland, 208 Md. 316, 118 A.2d 366, 368 (Maryland Ct. App. 1955)). Although criticized for two centuries, the rule survived because it found support in the difficulty of proving conclusively that a particular man was the father of a particular child. The alleged father might or might not admit paternity or even access. The mother might or might not make such admissions. The mother's husband might or might not claim non-access or paternity. Even if all parties told the truth, the circumstances might be such that a trier of fact would be left to guess about which man was the biological father. It is understandable that the courts would resist being called upon to adjudicate such controversies.

People of all ages are interested in knowing who their parents are. Adults, after being raised by adoptive parents, seek ways and means of ascertaining the identities of their biological parents in spite of the legal obstacles imposed through the adoption process. With advances in technology, independent scientific tests such as blood typing and DNA testing are available to the parties and to the courts to prove almost conclusively the biological relationship between a father and a child. Indeed, in Gibson the DNA tests showed a 99.41% probability that Gibson was the biological father. Gibson, 815 S.W.2d at 865. We believe that the State's interest in protecting the marriage relationship after a child is conceived by a man and a woman married to another is not as compelling as its demonstrated interest in promoting the welfare of children by allowing paternity to be established through litigation when necessary. See Tex. Fam. Code Ann. 13.01-13.44 (Vernon 1986 & Vernon Supp. 1992). Thus, we believe that the goal of protecting marital harmony does not justify sex-based discrimination against fathers who desire to be recognized as a parent the only biological parents denied that right in light of the clear constitutional prohibition of the Texas Equal Rights Amendment. Id.

"OPEN COURTS"

In point two, Henderson asserts that a denial of standing to an entire group or classification of individuals based solely on that classification violates the open courts doctrine. See Tex. Const. art. I, 13. The essence of the due-process guarantee of section 13 of the Texas Constitution (usually called the "Open Courts" provision), when a legislative act is alleged to deny a citizen access to the courts, is: Does the litigant's right of redress outweigh the legislative basis for the ordinance and statute? Sax v. Votteler, 648 S.W.2d 661, 665 (Tex. 1983). In Sax, the Supreme Court said that, in analyzing a litigant's right to redress, two criteria must be satisfied: "First, it must be shown that the litigant has a cognizable common-law cause of action that is being restricted. Second, the litigant must show that the restriction is unreasonable or arbitrary when balanced against the purpose and basis of the statute." Id. at 666. Because of Lord Mansfield's Rule, Henderson did not have a cognizable common-law cause of action that has been restricted by legislation. Thus, he cannot meet the first test of Sax. See id. at 665.

CONCLUSION

We overrule point of error number two. However, we sustain point of error number one and reverse the judgment and remand the cause to the trial court for a trial on the merits of Henderson's suit to establish his paternity of J.R.W. Because of this disposition, we do not reach Henderson's remaining points.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Reversed and remanded

Chief Justice Thomas concurring and dissenting

Opinion delivered and filed October 30, 1992

Publish