                                     In The

                              Court of Appeals
                   Ninth District of Texas at Beaumont
                            _________________
                             NO. 09-14-00164-CV
                            _________________


                    IN RE STEPHANIE DEATHERAGE

________________________________________________________________________

                              Original Proceeding
________________________________________________________________________

                         MEMORANDUM OPINION

      In a petition for writ of mandamus, Stephanie Deatherage contends a 2011

paternity judgment of the 418th District Court of Montgomery County is void

because a divorce action was pending in another court on the date of judgment. We

deny mandamus relief.

      In 2009, the Attorney General’s Office filed a suit to establish the parent-

child relationship between Charles William Allen and two children who were born

to Stephanie Deatherage during her marriage to Ronnie Dean Deatherage. The

paternity suit was consolidated with the Deatherage divorce case previously filed

in the 418th District Court in Montgomery County, Texas. Charles personally

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intervened, admitted paternity, and requested joint managing conservatorship. The

Attorney General moved to sever the Deatherage divorce case and the paternity

suit after court-ordered genetic testing revealed that Charles was the biological

father of two of Stephanie’s children. Stephanie and Charles reached a mediated

agreement and on April 19, 2011, the trial court signed agreed temporary orders

naming Charles and Stephanie as the parents and joint managing conservators.

Stephanie filed a notice of non-suit of the Deatherage divorce case and the trial

court dismissed the Deatherage divorce case on June 6, 2011.

      In the paternity suit, Charles filed a motion to enforce the temporary orders

and the trial court set a hearing for August 30, 2011. On August 17, 2011,

Stephanie petitioned this Court for mandamus relief from the paternity suit hearing

on the enforcement motion in No. 09-11-00456-CV. In her mandamus petition in

cause No. 09-11-00456-CV, Stephanie argued, among other things, that the trial

court abused its discretion in ordering genetic testing for children who had a

presumed father. Without any record documentation, she alleged the 418th District

Court lost jurisdiction over Charles’s paternity suit because another suit for divorce

had been filed in Ronnie’s state of residence, Oregon. We denied the petition for

mandamus in that action. See In re Deatherage, No. 09-11-00456-CV, 2011 WL




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3947513, at *1 (Tex. App.—Beaumont Aug. 18, 2011, orig. proceeding [mand.

denied]) (mem. op.).

      On August 29, 2011, Stephanie then filed another petition for divorce and

custody in San Jacinto County and that suit was assigned to the 258th District

Court. In her San Jacinto County divorce petition, Stephanie stated that there were

no orders in effect for any of the children, even though two of her children had

been determined to be Charles’s and were still subject to the temporary orders in

the paternity suit in Montgomery County. In an affidavit filed with her San Jacinto

County divorce petition, she swore she did not know of another person who has

physical custody of the children or claims the right to legal or physical custody or

visitation with them, which again disregarded Charles’s paternity and request for

custody in the paternity suit. On the same day she filed her San Jacinto Petition for

Divorce and Custody, Stephanie filed a motion to transfer with the Montgomery

County District Clerk seeking to have the 418th District Court transfer the

paternity suit to the San Jacinto County action. A copy of an unsigned notice of

hearing appears in the record.

      On September 12, 2011, the 418th District Court signed an Order

Establishing the Parent-Child Relationship in the paternity suit. The Order recites

that Stephanie was duly notified of the hearing but failed to appear for trial and

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was defaulted. The order also states that Ronnie was duly notified but failed to

appear at the trial and was defaulted. The Order named Charles as the sole

managing conservator of both children. Stephanie did not file an appeal of the

Order.

       On July 25, 2012, Stephanie filed a bill of review in which she alleged that

she had not been served with the Attorney General’s petition in the paternity suit,

and she asked the court to set aside the Order entered in the paternity suit. See In re

L.E.A., No. 14-12-00911-CV, 2013 WL 1619395, at *1 (Tex. App.—Houston

[14th Dist.] Apr. 16, 2013, no pet.) (mem. op.). At the bill of review hearing,

Stephanie “admitted she filed an answer to the [paternity] suit, she was informed of

the trial setting, she did not appear on the scheduled trial date, and did not file a

motion for new trial.” Id. The trial court denied her bill of review and Stephanie

filed an appeal. The Houston Fourteenth Court of Appeals affirmed the denial of

the bill of review. Id. at *2.

       In the mandamus proceeding now before us, Stephanie argues the Order

rendered in the paternity suit is void because she contends the 418th District Court

lacked subject matter jurisdiction when the Order was issued. She argues that the

418th District Court had a ministerial duty to transfer the paternity suit to San

Jacinto County pursuant to section 6.407 of the Texas Family Code and that the

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418th District Court therefore lacked any jurisdiction to perform any action other

than to transfer the paternity suit to the 258th District Court. See Tex. Fam. Code

Ann. § 6.407 (West Supp. 2013) (“If a suit affecting the parent-child relationship

is pending at the time the suit for dissolution of a marriage is filed, the suit

affecting the parent-child relationship shall be transferred . . . to the court in which

the suit for dissolution is filed.”). We disagree.

      At the time the Order was entered by the 418th District Court, L.E.A. and

V.C.A. were no longer “children of the marriage” of Stephanie and Ronnie.

“Parent” includes “a man presumed to be the father, a man legally determined to be

the father, a man who has been adjudicated to be the father by a court of competent

jurisdiction, [or] a man who has acknowledged his paternity under applicable

law[.]” Tex. Fam. Code Ann. § 101.024(a) (West 2014). The temporary orders in

the paternity suit adjudicated that Charles was the children’s father. See In re

Morales, 968 S.W.2d 508, 511-12 (Tex. App.—Corpus Christi 1998, no pet.).

Because a child can have only one legal father, “a person adjudicated to be the

biological father becomes the parent of a child to the exclusion of a man previously

presumed to be the biological father.” Id. Once Charles was adjudicated to be their

father, Ronnie was no longer the presumed father and L.E.A. and V.C.A. were no

longer “children of the marriage” of Stephanie and Ronnie. Id. Accordingly, the

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mandatory transfer provision of section 6.407 of the Texas Family Code did not

control the paternity suit.

       Moreover, a party may be estopped from asserting a motion to transfer a

SAPCR to the divorce court. See Garza v. Tex. Dep’t of Human Servs., 757 S.W.2d

44, 47 (Tex. App.—San Antonio 1988, writ denied); Grimes v. Harris, 695 S.W.2d

648, 651 (Tex. App.—Dallas 1985, orig. proceeding) (The general rule of

dominant jurisdiction does not apply when a party is guilty of conduct justifying

estoppel.). In Garza, the appellant non-suited the divorce, then re-filed in another

court and moved to transfer the case. 757 S.W.2d at 47. The court of appeals

reasoned that the trial court could refuse to allow the parents to assert their

manipulatively-filed motion to transfer. Id. Likewise, the 418th District Court

would have been justified here in refusing to allow Stephanie to assert a transfer

right, if any.

       We further note that nowhere in her mandamus petition does Stephanie

argue nor does the record establish that she presented her collateral attack on the

Order in the paternity suit to the trial court, and there is nothing in the record

indicating that she ever asked the trial court to vacate the Order before she filed

this petition for writ of mandamus. See In re Blakeney, 254 S.W.3d 659, 662 (Tex.

App.—Texarkana 2008, orig. proceeding) (A party who complains that the trial

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court refused to act must prove the matter was brought to the trial court’s

attention.). Therefore, she has not shown that the trial court failed to perform a

ministerial act.

      Having reviewed the mandamus petition and record in this matter, as well as

the pleadings filed in No. 09-11-00456-CV, we conclude that Stephanie has failed

to establish that she is entitled to mandamus relief. The petition for writ of

mandamus is denied.

      PETITION DENIED.

                                                  PER CURIAM


Opinion Delivered May 15, 2014

Before Kreger, Horton, and Johnson, JJ.




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