Affirmed as Modified and Majority and Concurring Opinions filed May 22, 2012.




                                          In The


                      Fourteenth Court of Appeals

                                  NO. 14-11-00281-CV




                       IN THE INTEREST OF A.B., A CHILD


                       On Appeal from the 309th District Court
                               Harris County, Texas
                         Trial Court Cause No. 2008-59828



                          CONCURRING OPINION

       In support of his argument that the trial court abused its discretion by ordering
retroactive child support, appellant (“Father”) relies in part on evidence that, against his
wishes, appellee (“Mother”) carried the couple’s unborn child (“A.B.”) to term rather
than abort the child’s life. Father offered evidence that before A.B. was born, Father
asked Mother to get an abortion and that Mother instead chose to continue the pregnancy
and give birth to the child. Both in the trial court and in his appellate brief, Father
suggests that his unsuccessful plea to abort the life of his unborn child should be
considered as evidence that militates against ordering him to pay retroactive support for
the child, who is now a teenager. Father points to his plea to abort as if it were a
legitimate factor to be considered in the retroactive child-support analysis. It is not.

       A father’s plea to abort the life of his unborn child has no legal relevance to the
issue of support for that child. This evidence does not tend to make the existence of any
fact of consequence to the determination of the action more or less probable. See Tex. R.
Evid. 401. Despite Father’s request to terminate A.B.’s life in utero, A.B. was born.
Once a child is born, a parent owes a legal duty of support. See Gully v. Gully, 231 S.W.
97, 98 (Tex. 1921). Thus, regardless of whether Father desired A.B. to be born, as A.B.’s
parent, Father owes A.B. a legal duty of support. See id. In light of this longstanding
tenet of Texas law, it would be unprecedented to conclude that a father’s legal obligation
to support his child should somehow be eliminated or diminished because, before the
child was born, he tried to convince the child’s mother to abort the child’s life.

       Father cites no authority to suggest how his request to abort the unborn child’s life
could or should impact the issue of retroactive child support. It is unclear why he
believes this evidence is helpful to his position or germane to the issue before the court.
Though it is true that had Mother acceded to Father’s request, Father would not be facing
a retroactive child-support obligation in that there would be no child to support, there is
no legal precedent that would support a reduction or elimination of child support on this
basis. The law does not impose any less responsibility on a parent because the parent did
not want the child to be born and took steps to further those wishes. Given settled Texas
law on a parent’s obligation of support, evidence that the father asked the mother to abort
the life of their unborn child simply has no relevance to the father’s obligation to support
that child after the child is born.

       Lack of legal relevance is not the only reason this evidence should not be
considered in the retroactive-child-support analysis. The notion that a father’s plea to
abort the life of his unborn child should be a factor to weigh in his favor in evaluating

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whether to order retroactive child support is repugnant to Texas’s staunch public policies
of protecting children and fostering strong family relationships. Because most children
would find this evidence disturbing, the insensitivity of offering it is made worse by the
prospect that, during the course of the public proceeding or at some future point, the child
might discover this evidence. That prospect is very real when, as in this case, the facts
are made the subject of testimony and exhibits in the trial court, 1 then featured in the
pages of appellant’s brief,2 and repeated again in oral argument before the court of
appeals.3

           A child’s discovery that, before she was born, her father asked her mother to abort
the child’s life could be emotionally devastating, especially when, as in this case, the
child is mature enough to comprehend the evidence. By its very nature, this evidence is
likely to confound, confuse, and distress, particularly when viewed through the eyes of a
child or adolescent, and it is prone to spur feelings of rejection and sadness even into
adulthood. The wounds from this unnecessary disclosure could be deep and leave scars
that have long-lasting, indelible effects on the child and the family. All of the negative
emotions, hurt feelings, and other detrimental consequences that are likely to accompany
this pointless revelation carry the potential to damage, and perhaps destroy, the crucial


1
  In her trial testimony, Mother referred to a letter from Father in which he asked her to seek an abortion
to terminate the pregnancy.
2
    The request to abort is mentioned in at least two sections of Father’s appellate brief.
3
  By the time this case reached the appellate court, the evidence and arguments already were a matter of
record. Nonetheless, this court has taken measures to protect the confidentiality by referring to the parties
by fictitious names and initials. See Tex. Fam. Code Ann. § 109.002(d) (West 2011). Because the
appellant (Father) raised the argument in his appellate briefing, this court has a duty to address it, and the
majority is correct to do so. See Tex. R. App. P. 47.1; West v. Robinson, 180 S.W.3d 575, 576–77 (Tex.
2005) (per curiam). Unfortunately, to the extent the child in this case is not already aware of the evidence
and arguments, the discussion of them in today’s opinions may increase the likelihood that the child will
make this discovery. But, the necessity of addressing the matter also presents the opportunity to bring
about positive change by pointing out the futility and insensitivity of the argument and discouraging
parties from taking this approach in the future.




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ties between parent and child. For these reasons, there is a legitimate and compelling
public policy justification, above and beyond lack of legal relevance, that parties should
not offer and courts should not consider such evidence in a retroactive child-support
analysis.

       Parents, of course, are entitled to offer evidence and present arguments to show
why their child-support obligations should be modified, and courts, of course, should
give due consideration to all such evidence and arguments. But, in the process, we
should not risk injury to a child like A.B., who almost certainly would suffer emotionally
to learn that, before she was born, her father sought to abort her life and then years later
held up proof of the fact in court in an effort to lessen or eliminate his legal obligation.
Courts should not entertain this unseemly and meritless argument or allow litigants to
present evidence supporting it. By doing so, courts will only encourage the practice.

       Because a father’s plea to abort the life of his unborn child is not legally relevant
to the issue of retroactive support for that child, and because there are strong public
policy reasons against admitting such evidence, it should play no role whatsoever in a
court’s determination of retroactive child support.




                                          /s/       Kem Thompson Frost
                                                    Justice


Panel consists of Justices Frost, Seymore, and Jamison. (Seymore, J., majority).




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