                                    DISSENTING OPINION

                                         No. 04-09-00362-CV

                                    IN THE INTEREST OF B.R.

                      From the 224th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-09727
                             Honorable Antonia Arteaga, Judge Presiding

Opinion by: Karen Angelini, Justice
Dissenting Opinion by: Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Steven C. Hilbig, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 26, 2010

           I respectfully dissent from part A of the majority opinion because the majority fails to

properly interpret section 154.131(c) of the Family Code.

           When interpreting statutes, our primary concern is the Legislature’s intent as expressed by

the language of the statute. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009);

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). We construe the statute’s words according to

their plain and common meaning unless a contrary intention is apparent from the context or unless

such a construction leads to nonsensical or absurd results. FKM P’ship, Ltd. v. Bd. of Regents of

Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008); see also Fleming Foods of Tex., Inc. v.

Rylander, 6 S.W.3d 278, 284 (Tex. 1999). When we interpret a code enacted by the legislature, we

read words and phrases in context and construe them according to the rules of grammar and common

usage. TEX . GOV ’T CODE ANN . § 311.011(a) (Vernon 2005); Jones v. State, 175 S.W.3d 927, 930

(Tex. App—Dallas 2005, no pet.). Even when a statute is not ambiguous on its face, the Code

Construction Act allows a reviewing court to consider other matters in ascertaining legislative intent,
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including the objective of the law, the legislative history, and the consequences of a particular

construction. TEX . GOV ’T CODE ANN . § 311.023 (Vernon 2006); Helena Chem. Co. v. Wilkins, 47

S.W.3d 486, 493 (Tex. 2001); Shumake, 199 S.W.3d at 284. We must examine the legislature’s

words in context of the statute as a whole. Harris Co. Hosp. Dist. v. Tomball Reg’l Hosp., 283

S.W.3d 838, 842 (Tex. 2009).

        Section 160.636 of the Texas Family Code authorizes the trial court to order retroactive child

support as provided by Chapter 154 of the Family Code. TEX . FAM . CODE ANN . § 160.636(g)

(Vernon Supp. 2009). Chapter 154 subsections c and d provide:

        (c)     It 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.

        (d)     The presumption created under this section 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 (Vernon 2008).

        Construing the amendment to Chapter 154 according to the plain and common meaning of

its words, subsection (c) creates a presumption that retroactive child support representing an amount

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. Perforce, if the trial court orders an amount that

is more than what would have been due for the preceding four years, the order is not reasonable and

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Dissenting Opinion                                                                     04-09-00362-CV



not in the child’s best interest. Thus, the legislature added subsection (d), which allows the trial

court to order an amount of retroactive child support that exceeds what would have been due in the

previous four years if the obligor knew or should have known that he was the father of the child and

avoided the establishment of the support obligation. This procedure serves public policy concerns

of what is in the best interest of the child and what is reasonable for both the mother and father. The

presumption addresses both the situation where a mother keeps knowledge of the child’s existence

from the biological father or when a father actively avoids the establishment of a child support.

        The legislative history supports my interpretation of the statute. Subsections (c), (d),

and (e) were added to the Family Code by way of H.B. 899 of the 77th Regular Session of the Texas

Legislature.     The Honorable Senfronia Thompson was the author of the bill and

testified about the intent of the bill during a committee hearing on March 6, 2001.                See

testimony of Representative Thompson on H.B. 899, 77th R.S. (2001), available at

http://www.house.state.tx.us/committees/audio77/340.htm (archived broadcasts March 6, 2001). In

her testimony, Representative Thompson told the committee that the purpose of the bill was to limit

an award of retroactive child support to no more than what would have been due for the preceding

four years unless the presumption contained in the bill was rebutted. Id. Representative Thompson

explained the impetus of the bill was a study that found men who are saddled with a large amount

of retroactive child support are less likely to meet current child support obligations. Id.; see also

John J. Sampson et. al., Sampson & Tindall’s Texas Family Code Ann., Title 5, subtitle B, chap.

154, pg 614 cmt. (Thomson West 2009) (“In effect, [subsection (c)] creates an estoppel by laches




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Dissenting Opinion                                                                        04-09-00362-CV



defense with the burden of refutation falling upon the obligee or the state, as the case may be.”). The

majority errs in holding subsections (c) and (d) inapplicable to this case.

        Applying the presumption, I would reverse and remand the trial court’s retroactive child

support award. Here, there is insufficient evidence to rebut the presumption. Although Luis has

acknowledged he is B.R.’s father, Amber’s only evidence to rebut the second prong of the

presumption is that Luis provided some irregular support for B.R., that such support fell

“embarrassingly” short of the support he should have paid, and Luis knew he had a duty to support

B.R. but failed to take steps to establish a formal support obligation. This evidence does not directly

or by inference show that Luis sought to avoid the establishment of a support obligation. Because

there is no evidence rebutting the second prong of the presumption, the retroactive child support

award must be limited to an amount not to exceed the total amount that would have been due for the

four years preceding the date the petition seeking support was filed. TEX . FAM . CODE ANN .

§ 154.131(c)(d)(Vernon 2008).

        I respectfully dissent to the majority’s resolution of the retroactive child support issue. This

court should hold the trial court abused its discretion, reverse the part of the trial court judgment that

awards $67,943.78 for retroactive child support, and remand the case for a new determination of

retroactive child support. I join in all other aspects of the majority opinion.



                                                                 Steven C. Hilbig, Justice




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