In the Interest of Alexis Javier Flores, A Minor Child--Appeal from County Court at Law of Webb County

No. 04-98-00251-CV
IN THE INTEREST OF A.J.F., a Minor Child
From County Court at Law No. 1, Webb County, Texas
Trial Court No. C-95-00881-C1
Honorable Raul R. Vasquez, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: October 28, 1998

AFFIRMED

Jose Luna appeals the trial court's judgment aagainst him in his suit to establish paternity of A.J.F. We affirm.

Factual and Procedural Background

A.J.F. was born to Olga during her marriage to Genaro and was subsequently named in the couple's divorce decree as their child. Later, after Olga and Genaro reconciled and remarried, Jose Luna filed this suit to establish himself as A.J.F.'s biological father. In response, Olga and Genaro alleged Luna's suit is barred because their divorce decree constitutes a prior adjudication of Genaro as A.J.F.'s biological father for purposes of section 160.007(a)(1) of the Texas Family Code, which provides, "[A] suit under this chapter with respect to a child is barred if final judgment has been rendered by a court of competent jurisdiction ... adjudicating a named individual to be the biological father of the child." Tex. Fam. Code Ann. 160.007(a)(1) (Vernon 1996); see Dreyer v. Greene, 871 S.W.2d 697, 697 (Tex. 1993) ("a finding in a [default] divorce decree that the husband and wife are parents of certain children bars a later action by the children to establish that someone else is their biological father").

After blood tests established Luna to be A.J.F.'s biological father, the parties asked for a separate bench trial to determine whether section 160.007(a)(1) bars Luna's action. Following a trial on stipulated facts, the trial court rendered a take-nothing judgment against Luna.

Constitutionality of Section 160.007(a)(1)

In his first point of error, Luna argues that applying section 160.007(a)(1) to bar his paternity action violates article I, section 19 of the Texas Constitution because the statute would require him to have established his paternity at a time when the Texas Family Code denied his right to do so. We disagree.

At the time Olga and Genaro's divorce proceeding was filed, the Texas Family Code presumed Genaro was A.J.F.'s father. See In re J.W.T., 872 S.W.2d 189, 190 (Tex. 1994) (citing Tex. Fam. Code Ann. 12.02(a), 12.06(a), 13.21(a) (Vernon Supp. 1994)). Because A.J.F. had a presumed father, the Code purported to deny Luna standing to file a suit to establish his paternity. Id. (citing Tex. Fam. Code Ann. 11.03(a)(7), 12.06(a) (Vernon Supp. 1994)). However, before the divorce decree was rendered in August 1994, the Texas Supreme Court held "unconstitutional Section 11.03(a)(7) and 12.06(a) to the extent that they wholly deny a putative father's standing to sue with regard to a child who has a presumed father, and prevent the bringing of any suit affecting the parent-child relationship in which a presumption of paternity may be rebutted." Id. at 198. Rather, "standing is constitutionally mandated" if "near the time of the child's birth" a biological father "both 1) acknowledges responsibility for child support or other care and maintenance, and 2) makes serious and continuous efforts to establish a relationship with the child." Id. at 195.

In response to J.W.T., the Texas Legislature amended the Texas Family Code to permit an alleged biological father to file a parentage suit contesting another man's status as a child's presumed father. Tex. Fam. Code Ann. 160.101(a)(3) (Vernon 1996). However, this provision did not become effective until September 1, 1995. See id. (Historical and Statutory Notes). As a result, Luna contends the Texas Family Code denied him standing to file suit to establish his paternity of A.J.F. in 1994 when Olga and Genaro were divorced, but section 160.007(a)(1) now makes the 1994 divorce decree a final determination of Genaro's status as A.J.F.'s biological father.

The central premise of Luna's argument is incorrect. The provisions denying Luna standing were declared unconstitutional on June 30, 1993, the date of the original opinion in J.W.T. Accordingly, from June 30, 1993 until August 17, 1994, the date the divorce decree was rendered--a period of over one year--Luna could have filed a suit challenging Genaro's status as A.J.F.'s presumed father, and to establish himself as A.J.F.'s biological father, if he complied with the conditions in J.W.T. The issue therefore is not whether section 160.007(a)(1) violates Luna's rights under article I, section 19 of the Texas Constitution because it denies him standing. The issue is whether section 160.007(a)(1) violates Luna's rights under article I, section 19 of the Texas Constitution because it limits his standing to the period before Genaro was adjudicated A.J.F.'s biological father.

"A state has the right to impose reasonable parameters on suits to establish paternity" and "a legitimate interest in preserving the finality of final judgments." Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997). Accordingly, a state may provide that "a judgment in a prior paternity action by the mother bars any subsequent [paternity] suit" consistent with due process and equal protection, just as it may constrain an illegitimate child's assertion of inheritance rights with statutes of limitations. Id. (citing Reed v. Campbell, 476 U.S. 852, 855 (1986)).We hold section 160.007(a)(1) represents a reasonable means of promoting the State's legitimate interests in the finality of judgments and the stability of families and is therefore consistent with article I, section 19 of the Texas Constitution. Consequently, we overrule Luna's first point of error.

Notice and Adequate Representation

In his second point of error, Luna argues the divorce decree does not bar his suit because he did not have proper notice of or adequate representation in the prior proceeding. In support of his argument, Luna relies on Attorney General v. Lavan, 833 S.W.2d 952, 955 (Tex. 1992), in which the court held a divorce decree did not bar the State's suit to establish paternity because it was not a party to the divorce proceeding. However, in Lavan, "no order of the court purported to adjudicate the child's paternity or provided for the financial support of the child." Id. at 953. Therefore, because the mother's former husband was merely a "presumed father," "nothing in the Code . . . expressly prohibit[ed] the State from bringing a claim ... to disestablish the paternity of a presumed father." Id. at 954. Here, on the other hand, Genaro is A.J.F.'s adjudicated father, and section 160.007(a)(1) expressly precludes Luna's paternity suit.

Luna also argues he was denied notice and an opportunity to be heard--rights accorded biological fathers in adoption proceedings, Rogers v. Lowry, 546 S.W.2d 881, 882 (Tex. Civ. App.--Houston [1st Dist.] 1977) (orig. proceeding), and recognized by the supreme court in J.W.T. J.W.T., 872 S.W.2d at 195-96. However, the record establishes Luna believed A.J.F. was his biological child at or near the time he was born; he told Olga to tell Genaro; and he had actual knowledge of the divorce proceeding. Accordingly, the record does not support Luna's claim that he was denied notice of and an opportunity to be heard in the divorce proceeding. We therefore overrule Luna's second point of error.

Failure to File Findings and Conclusions

In his third point of error, Luna contends the trial court erred in failing to file findings of fact and conclusions of law. However, Luna waived this complaint by failing to timely file a notice of past due findings and conclusions. See Tex. R. Civ. P. 297; Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984). We therefore overrule his third point of error and affirm the judgment.

Sarah B. Duncan, Justice

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