


NUMBER 13-00-382-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI
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IN THE INTEREST OF A. P., A CHILD
____________________________________________________________


On appeal from the 267th District Court


of De Witt County, Texas.


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O P I N I O N

Before Chief Justice Valdez, and Justices Dorsey, and

Rodriguez


Opinion by Chief Justice Valdez

	Appellant Kenneth W. Meadwell(1) appeals a special master's(2)
decision in a paternity suit that he pay back child support for eighteen
years in which he did not support his daughter.  Appellant raises four
issues for our review:  1) that this suit is time-barred under the family
code; 2) that the special master could not retroactively order him to pay
child support; 3) that the special master could not award child support
because of appellant's financial condition; and 4) that the special master
violated appellant's fifth amendment right not to be prosecuted twice
for the same offense by punishing him for being a prison inmate by
making him pay child support.

	By his first issue, appellant contends that his suit was time barred. 
However, a limitations defense must be raised at the trial level to be
preserved for appeal.  Tex. R. Civ. P. 94.  Appellant made no complaint,
objection or motion that would inform the special master that he was
asserting a limitations defense.  Appellant failed to obtain a ruling on
any defense that dealt with the possibility that this case would be time-barred.  Appellant has therefore waived his first issue.  Tex. R. App. P.
33.1(a). 

	In his second issue, appellant argues that the family code allows
a court to order child support only until a child's eighteenth birthday,
and, therefore, the special master's order was improper because his
daughter was over eighteen at the time this suit was filed.  The family
code provides that a suit to collect child support may be brought "on or
before the second anniversary of the date the child becomes an adult." 
Tex. Fam. Code  Ann. § 160.002(a) (Vernon Supp. 2001).  Since
appellant's daughter turned eighteen on November 20, 1998, a suit to
determine her parentage could be brought on or before November 20,
2000.  This suit was filed and appellant was served before November
20, 2000.

	Upon a finding of parentage, a court is explicitly authorized "to
order support retroactive to the time of the birth of the child."  Tex. Fam.
Code Ann. § 160.005(b) (Vernon 1996).  Appellant had known of his
daughter's existence since the time of her birth.  On April 28, 2000, the
trial court entered an order establishing the parent-child relationship. 
Once this relationship was established, it was up to the discretion of
the special master to make the determination of whether to retroactively
award child support back until the time of the child's birth.  In re
S.E.W., 960 S.W.2d 954, 955-56 (Tex. App.--Texarkana 1998, no pet.);
see Tex. Fam. Code Ann. § 154.131(b) (Vernon 1996).  This payment is
due to the parent who supported appellant's child to pay her for what
he did not provide, not to the support of his adult daughter, as appellant
asserts in his brief.  In re B.I.V., 923 S.W.2d 573, 575 (Tex. 1996); see
Tex. Fam. Code Ann. § 160.005 (Vernon 1996).  We overrule appellant's
second issue.

	In his third issue, appellant argues that the special master could
not award child support because of appellant's financial condition.  The
retroactive child support was calculated under the minimum wage
presumption set forth in the family code.  Tex. Fam. Code Ann. §
154.068 (absent evidence of income, court must presume income equal
to the federal minimum wage for a forty hour week).  Appellant asserts
that because he is in prison, he could not have earned even the
minimum wage.  There is no legal presumption that an inmate has no
assets; incarceration alone does not rebut the minimum wage
presumption.  In re M.M., 980 S.W.2d 699, 700-01 (Tex. App.--San
Antonio 1998, no pet.).  The judgment, signed by appellant's counsel,
recites that a record was waived by the parties.  Issues raised for an
appellate court's review "dependent on the state of the evidence cannot
be reviewed absent a complete record."  Dob's Tire and Auto Center v.
Safeway Ins. Agency, 923 S.W.2d 715, 720 (Tex. App.--Houston [1st
Dist.] 1996, writ dism'd w.o.j.).  Appellant therefore cannot establish
any error.  We overrule appellant's third issue.

	In his final issue, appellant argues that the award of retroactive
child support violates the constitutional ban on double jeopardy.  The
retroactive support judgment does not constitute punishment; it is the
payment of a debt for the payment of support of his daughter, which
appellant never paid.  See B.I.V., 923 S.W.2d at 575; see also Creavin
v. Moloney, 773 S.W.2d 698, 703 (Tex. App.--Corpus Christi 1989, writ
denied).  Additionally, the forfeiture of a defendant's property is civil, not
punitive nor criminal, and therefore not subject to double jeopardy
restrictions.  Fant v. State, 931 S.W.2d 299, 309 (Tex. Crim. App.
1996).  We overrule appellant's fourth issue.

	We AFFIRM the judgment of the trial court.							

							__________________________

							ROGELIO VALDEZ

							Chief Justice


Publish.

Tex. R. App. P. 47.3.


Opinion delivered and filed this

the 29th day of March, 2001.


1. Appellant had an attorney at trial.  He is representing himself on appeal.
2. See Tex. Fam. Code  Ann. § 201.001, et. al. (Vernon 1996 & Supp. 2001).  

