In the Interest of B.C.C., A Child--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION

No. 04-05-00220-CV

IN THE INTEREST OF B.C.C.

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 01-0589-CV

Honorable W.C. Kirkendall, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 2, 2005

AFFIRMED

The Texas Attorney General ( the A.G. ) brought suit to establish appellant Mark E. Cahill s paternity of B.C.C. and appropriate support. Following a hearing, the trial court signed an order establishing Cahill as B.C.C. s father and rendering a retroactive support judgment against Cahill in the amount of $70,000. This is an appeal from that order. On appeal, Cahill challenges the court s jurisdiction over him, the A.G. s standing to bring the suit, and the award of retroactive child support. We affirm.

JURISDICTION

Cahill, who is a resident of Montana, asserts the trial court lacked personal jurisdiction over him because he did not have minimum contacts with the State of Texas.

At a special appearance hearing, the defendant bears the burden of negating all bases for jurisdiction. See Siskind v. Villa Found. for Educ., Inc., 642 S.W.2d 434, 438 (Tex. 1982). At the hearing on Cahill s special appearance, Cahill s attorney stated, The only issue here is just the issue of whether or not he had sexual intercourse as far as jurisdiction is concerned. See Tex. Fam. Code Ann. 102.011(b)(6) (Vernon 2002) (court may exercise personal jurisdiction over a person on whom service of citation is required if the person engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse); 159.201(a)(6) (Vernon Supp. 2004-05) (a tribunal may exercise personal jurisdiction over a non-resident if the individual engaged in sexual intercourse in Texas and the child may have been conceived by that act of intercourse). Therefore, the only jurisdictional basis challenged was whether Cahill and B.C.C. s mother, Kateri Chauret Guzman, engaged in sexual intercourse in Texas and B.C.C. may have been conceived by that act of intercourse.

The evidence before the court included Guzman s and Cahill s affidavits. In her affidavit, Guzman alleged B.C.C. was born in Bexar County, Texas, and they currently reside in Guadalupe County, Texas. Guzman stated she had sexual intercourse with Cahill during the period of May 30, 1981 through July of 1981, while Cahill was present in San Antonio, Texas playing football. B.C.C. was born on March 8, 1982. These allegations satisfy the jurisdictional requirements set forth in the Family Code.

In his affidavit, Cahill admitted to being in Texas during the relevant time period, but denied he had sexual intercourse with Guzman. On appeal, for the first time, Cahill asserts the trial court did not have jurisdiction over him because he did not have continuous contacts with this state. However, because Cahill did not raise this challenge before the trial court, he failed to carry his burden to negate this basis of personal jurisdiction. Therefore, the trial court did not abuse its discretion in denying his special appearance.

STANDING

In his second issue, Cahill asserts the A.G. did not have standing to bring a suit to determine parentage because B.C.C. turned eighteen years old before the suit was filed. Cahill relies on the current version of Family Code section 160.602, which provides that [a]fter the date a child having no presumed, acknowledged, or adjudicated father becomes an adult, a proceeding to adjudicate the parentage of the adult child may only be maintained by the adult child. Tex. Fam. Code Ann. 160.602(b) (Vernon Supp. 2004-05). However, section 160.602 was not enacted until June 14, 2001. See Act of 2001, 77th Leg., R.S., ch. 821, 1.01, effective June 14, 2001. The limitation contained in subsection (b) of section 160.602 was not enacted until September 1, 2003. See Act of 2003, 78th Leg., R.S., ch. 1248, 3, effective September 1, 2003. In April 2001, when this suit was filed, an original suit could be filed by a governmental entity or authorized agency; the A.G. had standing to file a child support action; and the A.G. was authorized to seek a paternity determination. See Tex. Fam. Code Ann. 102.003(a)(5-6), 102.007, 231.101(a)(2) (Vernon 2002). Because the Family Code did not limit, in 2001, the prosecution of parentage cases to the adult child after the child becomes an adult, the A.G. had standing to file the underlying suit.

RETROACTIVE CHILD SUPPORT

In his third issue, Cahill asserts the trial court abused its discretion in awarding retroactive child support in excess of the parameters established by the Family Code.

A trial court is vested with discretion to determine whether to award retroactive child support and the amount of that support. See In re M.M., 980 S.W.2d 699, 700 (Tex. App. San Antonio 1998, no pet.). Whether a trial court properly exercised its discretion depends upon not only whether it acted with reference to guiding rules and principles, In re Hamer, 906 S.W.2d 263, 265 (Tex. App. Amarillo 1995, no writ), but also whether the decision enjoys evidentiary support. See id. at 265 n. 1 (holding that while the existence of evidence supporting the trial court s decision is not an independent ground of attack, it is nonetheless an indicia to consider when determining if the trial court abused its discretion). Moreover, we are obligated to view the evidence in the light most favorable to the trial court s decision and indulge in every presumption favoring the judgment. Tucker, 96 S.W.3d at 665.

Should the trial court decide to award retroactive support, it is then free to turn to the child support guidelines found in Family Code Chapter 154 for guidance in ascertaining the amount of the award. See Tex. Fam. Code Ann. 154.131(a) (Vernon 2002). Although compliance with these guidelines is not mandatory, In re Valadez, 980 S.W.2d 910, 913 (Tex. App. Corpus Christi 1998, no pet.), the trial court must nonetheless consider the net resources of the father during the relevant time period. Tex. Fam. Code Ann. 154.131(b). In the absence of evidence regarding the obligor s resources, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week. Id. 154.068. The court next must determine the percentage of net resources, based on the number of children before the court that the non-custodial parent would pay under the guidelines, and then consider whether any additional factors would justify varying from the guidelines. In re M.M., 980 S.W.2d 699, 700 (Tex. App. San Antonio 1998, no pet.); see Tex. Fam. Code Ann. 154.123, 154.125. The court also must consider whether 1) the mother of the child had made any previous attempts to notify the father of his paternity, 2) the father had knowledge of his paternity, 3) the order of retroactive child support will impose an undue financial hardship on the father or his family, and 4) the father provided actual support or other necessaries before the filing of the action. Tex. Fam. Code Ann. 154.131(b).

At the paternity hearing, Guzman testified she told Cahill about the pregnancy when she learned she was pregnant in 1981. She lost track of him after he left San Antonio, and it was not until 1995 that she discovered he was living in New Mexico, at which time she filed suit. A 1995 paternity test excluded ninety-nine percent of the male population from the possibility of being B.C.C. s biological father. The test showed a 99.970% probability that Cahill was B.C.C. s biological father. Due to lack of prosecution, the New Mexico suit was dismissed in February 2001. Cahill eventually moved to Montana. In April 2001, the A.G. filed the underlying suit in Guadalupe County, Texas. Guzman said Cahill has provided her with no support for B.C.C., she has spent over $16,000 between 1990 and 2000 in medical expenses for B.C.C., and she estimated the average yearly cost of raising B.C.C. to be $10,000. Guzman testified that, in 1981, Cahill had a construction company in Houston, Texas and played football in San Antonio. As to his current employment, Guzman could only state, I did call somebody up there [in Montana] in a construction place, and they had heard of him and they knew that he did some kind of work. B.C.C. testified Cahill told him he did [c]onstruction, here and there. B.C.C. said Cahill talked about going cross-country skiing, fly fishing and mountain biking, and that Cahill would sometimes stay home to take care of an old Land Cruiser or something. Cahill, acting pro se, was not present at the hearing and submitted no evidence on his behalf. At the close of testimony, the A.G. asked for an amount [a]nywhere between 50 and - - and $100,000 . . . $70,000 . . . .

The trial court made the following findings of fact regarding the issue of retroactive child support:

The Court finds [Guzman] has made previous attempts to notify [Cahill] of his paternity of the child. The Court finds that despite a DNA test showing 99.97% probability of paternity, [Cahill] has continued to deny paternity and not provided any actual support or other necessities for the child. The Court finds that [Cahill] has had knowledge of his probable paternity since the child was born, and knowledge of the DNA test since approximately June 22, 1995. The Court finds that [Cahill] knew or should have known that he was the father of the child, and that he sought to avoid the establishment of a support obligation to the child. The Court finds this order of retroactive support will not impose an undue financial hardship on [Cahill] or his family. The Court finds that retroactive child support should be ordered in the amount of $70,000.00 as of 1-20-2005.

On appeal, Cahill challenges the legal sufficiency of the evidence supporting the trial court s findings. In support of his argument that the trial court abused its discretion because the amount awarded exceeds the range recommended under the guidelines, Cahill relies on Family Code section 154.131(c), which provides that [i]t is presumed that a court order limiting the amount of retroactive child support to an amount that does not exceed the total amount of support that would have been due for the four years preceding the date the petition seeking support was filed is reasonable and in the best interest of the child. Tex. Fam. Code Ann. 154.131(c). However, the presumption created by subsection (c) may be rebutted by evidence that the obligor . . . (1) knew or should have known that the obligor was the father of the child for whom support is sought; and (2) sought to avoid the establishment of a support obligation to the child. Id. 154.131(d). The evidence establishes that Cahill knew or should have known he was B.C.C. s father as early as 1981 and no later than 1995, and that he sought to avoid the establishment of a support obligation to B.C.C. in 1995. Because the evidence rebutted the presumption, the trial court had the discretion to award retroactive child support from the date of B.C.C. s birth.

Because no evidence was adduced regarding Cahill s financial resources, the court was authorized to presume Cahill earned the federal minimum wage, which at the time of trial was $5.15. See 29 U.S.C.A. 206. If Cahill earned this amount, his gross annual income would equal $10,712. See Tex. Fam. Code Ann. 154.061(a) (Vernon 2004-05). His gross monthly wage would be approximately $892.67, with a net monthly income of $801.36. See id. 154.061(a), (b). With one child, Cahill s monthly child support obligation would equal $178.53. See id. 154.125(b) (Vernon 2002). Therefore, over an eighteen-year period, Cahill would owe retroactive child support in the amount of $38,562.48. However, the court awarded $70,000.

A court may order periodic child support payments in an amount other than that established by the guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. See id. 154.123(a). Section 154.123 lists a variety of factors the court may consider in determining whether application of the guidelines would be unjust or inappropriate under the circumstances. See id. 154.123(b). Here, the court heard testimony that Guzman spent $10,000 per year to raise B.C.C., and approximately $16,000 in medical expenses; and she received no support from Cahill. See id. 154.123(b)(1), (12). Both Guzman and B.C.C. attested to Cahill s ability to work in the construction industry. See id. 154.123(b)(5). This evidence is sufficient to rebut the presumption that application of the guidelines was in B.C.C. s best interest and justified a variance from the guidelines.

While it would be the better practice for the A.G. to present the trial court with some evidence of financial resources rather than merely suggest a vague range on support, on this record we cannot say the trial court abused its discretion in ordering Cahill to pay retroactive child support in the amount of $70,000.

DUE PROCESS

In his fourth issue, Cahill raises a variety of complaints, including that the trial judge aligned himself with the State s DNA expert ; the court improperly refused to take judicial notice of federal law, Montana law, and Travis County Local Rules; the court denied him his right to attend the hearing and to cross-examine the witnesses, and allowed hearsay into evidence. An issue on appeal addressing more than one specific ground of error is multifarious. Bell v. Texas Dep t of Criminal Justice-Institutional Div., 962 S.W.2d 156, 157 n. 1 (Tex. App. Houston [14th Dist.] 1998, pet. denied); City of San Antonio v. Rodriguez, 856 S.W.2d 552, 555 n. 2 (Tex. App. San Antonio 1993, writ denied). If a court concludes that an issue is multifarious, it may refuse to review it or it may consider the issue if it can determine, with reasonable certainty, the error about which complaint is made. Bell, 962 S.W.2d at 157 n. 1. Cahill s fourth issue is multifarious and we are unable to discern all of his complaints. However, in the interest of justice we will address the error that we can reasonably construe, which is whether the trial court erred in not granting a continuance. See id.

In a pre-trial motion, Cahill requested a continuance of the paternity hearing, alleging that telephone records and an electronic recording requested in his request for production were material, he had amended his special appearance, and a pretrial motion requesting Judicial Notice of Laws remained pending before the court. At the paternity hearing, the trial court denied the motion. A denial of a motion for continuance is subject to review for abuse of discretion. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). An abuse of discretion in denying a motion for continuance can occur when a party must attend a trial or hearing but is unable to submit critical evidence. See Union Carbide Corp. v. Moye, 798 S.W.2d 792, 793 (Tex. 1990) (orig. proceeding). The Supreme Court has identified several nonexclusive factors to be considered when deciding whether a trial court abuses its discretion in denying a pretrial continuance motion premised on a need for additional time to conduct discovery: the length of time the case has been on file, the materiality and purpose of the discovery sought, and whether the party seeking the continuance has exercised due diligence to obtain the discovery sought. Joe v. Two Thirty Nine J.V., 145 S.W.3d 145, 161 (Tex. 2004).

After Guzman s suit in New Mexico was dismissed, the A.G. filed its Petition to Establish the Parent-Child Relationship on April 23, 2001 in Guadalupe County, Texas. The special appearance hearing occurred two years later on March 1, 2002, and Cahill was represented by counsel at this hearing. In March 2004, Cahill s attorney was allowed to withdraw and Cahill proceeded pro se. Cahill filed his third request for production on December 21, 2004. The paternity hearing was held on January 20, 2005, almost three years after the special appearance hearing. In his motion for continuance, Cahill does not explain the content of the telephone records or the electronic recording, nor does he explain their materiality and purpose. As to his other reasons for a continuance, Cahill did not indicate the nature of the laws on which he sought judicial notice or their significance to the paternity hearing. We conclude the trial court did not abuse its discretion in proceeding with the paternity hearing in Cahill s absence.

OTHER COMPLAINTS

In his fifth issue, Cahill again raises a variety of complaints about issues ranging from the evidence to standing and jurisdiction. For example, he asserts that Guzman s unverified claim of expenses is not credible; the 1995 paternity test is inconclusive and poorly done ; he was not contacted until 1995; he did not own a construction company; he and Guzman did not engage in sexual intercourse; and Montana will not enforce a child support order issued in Texas. We have already held the trial court had in personam jurisdiction and the A.G. had standing to file suit. As to his other complaints, they are multifarious and present nothing for our review.

CONCLUSION

We overrule Cahill s issues on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice