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                                              OPINION

                                         No. 04-09-00641-CV

                                            Irma GOMEZ,
                                               Appellant

                                                   v.

                                        Luis Antonio GOMEZ,
                                               Appellee

                      From the 150th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-09255
                              Honorable Gloria Saldaña, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 26, 2010

REVERSED AND REMANDED

           Irma Gomez appeals from a final decree of divorce dissolving the marriage of Irma and Luis

Antonio Gomez and dividing the property of the community estate. On appeal Irma contends the

trial court erred when it found that I.G., a minor child born during the marriage of Irma and Luis, is

not the child of Luis. In accord with this finding, the trial court also applied an offset in the property

division for “back child support” previously paid by Luis in the form of expenses of raising I.G. as

his child for thirteen years. Irma challenges this property division, as well as the trial court’s failure
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to address whether Luis converted approximately $50,000 in community property. We reverse the

portions of the trial court’s judgment that: (1) find that I.G. is not a child of the marriage; and (2)

divide the property. We render judgment that I.G. is a child of the marriage; however, we remand

the cause to the trial court to reconsider the division of property and to consider issues relating to

child support and visitation.

                                          PATERNITY OF I.G.

        Irma raises several complaints relating to the trial court’s finding that I.G. is not Luis’s child.

Irma contends Luis was precluded from disproving the father-child relationship because he failed

to prove the statutory exception to the four-year limitations bar. Irma further contends the trial court

erred in admitting DNA test results in the absence of expert testimony to authenticate the test results.

        A presumption of paternity exists if a man is married to the mother of the child and the

child is born during the marriage. TEX . FAM . CODE ANN . § 160.204(a) (Vernon 2008). This

presumption legally establishes the father-child relationship between the man and the child. Id. at

§ 160.201(b)(1). In this case, the evidence is undisputed that Irma and Luis were married on June

16, 1973, and separated in 2007. I.G. was born on January 23, 1996, during the marriage.

Accordingly, Luis is presumed to be I.G.’s father.

        When a child has a presumed father, a proceeding to adjudicate the parentage of that child

must be commenced not later than the fourth anniversary of the date of the birth of the child. TEX .

FAM . CODE ANN . § 160.607(a) (Vernon 2008). In this case, the divorce proceeding giving rise to

the parentage challenge was filed in June of 2007, more than four years after I.G. was born. A

statutory exception to the four-year limitations bar, however, permits a proceeding seeking to




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disprove the father-child relationship between a child and a child’s presumed father to be maintained

at any time if the court determines that:

        (1)     the presumed father and the mother of the child did not live together or
                engage in sexual intercourse with each other during the probable time of
                conception; and

        (2)     the presumed father never represented to others that the child was his own.

Id. at § 160.607(b). Luis had the burden to prove the two requirements necessary to establish this

exception to the limitations bar. See In re Rodriguez, 248 S.W.3d 444, 451-52 (Tex. App.—Dallas

2008, orig. proceeding).

        In the divorce decree, the trial court expressly found the following:

                Pursuant to Texas Family Code Section 160.607, the Court finds that the
        parties did not engage in sexual intercourse with each other during the probable time
        of conception. The Court finds that the child, [I.G.], is not the child of Respondent,
        Luis Antonio Gomez.
                The Court further finds that there was no bonding between the child and the
        Respondent, Luis Antonio Gomez, as testified to by the Petitioner, Irma Gomez. The
        Court further finds that Petitioner did not want to grant Respondent any possession
        and access to the child as testified to by Petitioner, Irma Gomez.

Even assuming the evidence is sufficient to support the trial court’s finding that Luis and Irma did

not engage in sexual intercourse during the time of I.G.’s conception, the trial court did not find that

Luis never represented to others that I.G. was his own. Finding that no bond existed between I.G.

and Luis does not equate to such a finding. Moreover, such a finding would have been unsupported

by the evidence because the evidence established that Luis was listed as I.G.’s father on I.G.’s birth

certificate, in school records, and in tax returns. See In re R.O., No. 03-04-00506-CV, 2005 WL

910231, at *3 (Tex. App.—Austin Apr. 21, 2005, no pet.) (relying on presumed father’s name on

child’s birth certificate as some evidence that presumed father treated child as his own) (mem. op.).



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Therefore, the evidence is legally insufficient to prove the exception to the four year limitations bar.

As a result, Luis was barred from seeking to adjudicate I.G.’s parentage, and the trial court erred in

finding I.G. is not a child of the marriage.1 Accordingly, the provisions of the divorce decree relating

to the child of the marriage, including the failure to award child support and visitation, are reversed.

We do not address Irma’s issue pertaining to the admission of the DNA test results because its

resolution is not necessary to the disposition of this appeal. See TEX . R. APP . P. 47.1.

                                                 PROPERTY DIVISION

         With regard to the trial court’s division of property, Irma contends that the trial court

improperly awarded an offset in the property division for “back child support” based on its erroneous

finding that I.G. is not Luis’s child. In addition, Irma contends the trial court erroneously failed to

address her contention that Luis converted approximately $50,000 of community funds.

         In reviewing a trial court’s division of property, we must consider whether the evidence in

the record demonstrates that the division was so unjust and unfair as to constitute an abuse of

discretion. Lifshutz v. Lifshutz, 199 S.W.3d 9, 18 (Tex. App.—San Antonio 2006, pet. denied);

Pletcher v. Goetz, 9 S.W.3d 442, 446 (Tex. App.—Fort Worth 1999, pet. denied). The test for

whether the trial court abused its discretion is whether the court acted arbitrarily or unreasonably.

Lifshutz, 199 S.W.3d at 18; Pletcher, 9 S.W.3d at 446.




         1
           … In his brief, Luis refers to equitable estoppel as a defense to the limitations bar. Equitable estoppel, however,
is an affirmative defense that must be pled or it is waived. See In re G.T.S., No. 01-09-00212-CV, 2009 W L 3248199,
at *4 n.9 (Tex. App.— Houston [1st Dist.] Oct. 8, 2009, no pet.) (mem. op.); Daniel v. Falcon Int. Realty Corp., 190
S.W .3d 177, 188 (Tex. App.— Houston [1st Dist.] 2005, no pet.); City of Univ. Park v. Van Doren, 65 S.W .3d 240, 251
(Tex. App.— Dallas 2001, pet. denied). T he clerk’s record contains no pleading filed by Luis that refers to equitable
estoppel. In fact, the last pleading filed by Luis before trial, his first amended original counterpetition for divorce, asserts
that Irma and Luis are I.G.’s parents and requests that they be appointed as joint managing conservators. Therefore, Luis
has waived any argument based on equitable estoppel.

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        A trial court does not abuse its discretion if there is some evidence of a substantive and

probative character to support its decision. Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San

Antonio 2006, no pet.). Because in family law cases the abuse of discretion standard of review

overlaps the traditional sufficiency standards of review, legal and factual insufficiency are not

independent grounds of reversible error; instead, they constitute factors relevant to our assessment

of whether the trial court abused its discretion. Id. Therefore, in considering whether the trial court

abused its discretion because the evidence is legally or factually insufficient, we apply a two-prong

test: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did

the trial court err in its application of that discretion? Id.

        With regard to the offset for “back child support,” evidence was introduced at trial that during

the marriage, Luis purchased a 170 acre tract of property in Frio County with his brothers. Luis used

community funds to pay his portion of the purchase price. With regard to the division of the Frio

County property, the trial court stated:

        This was at the very beginning of the testimony and that was the impression I had:
        That she was aware that this had been bought by Mr. Gomez and his brothers.
        However, of course, the money [Luis] paid was community funds. So I’m going to
        award the property to him, and I’m not going to require reimbursement of the
        $26,500, or whatever it was that was paid. But I’m also not going to require Ms.
        Gomez to reimburse him for the child support that’s been paid to date. I’m going to
        count that as a wash.

Because we hold the trial court erred in finding that I.G. is not Luis’s child, this offset also was

erroneous.

        Once reversible error affecting the “just and right” division of the community estate is found,

the court of appeals must remand the entire community estate for a new division. Jacobs v. Jacobs,

687 S.W.2d 731, 733 (Tex. 1985); In re Marriage of Taylor, 992 S.W.2d 616, 621 (Tex.


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App.—Texarkana 1999, no pet.). Because the “back child support” offset was erroneous, we must

remand the case for a new property division; therefore, we do not address Irma’s issue regarding

Luis’s alleged conversion of $50,000 of community funds. See TEX . R. APP . P. 47.1 (noting opinions

should only address issues necessary to final disposition of the appeal).

                                           CONCLUSION

       The provisions of the divorce decree relating to the child of the marriage and the division of

property are reversed. Judgment is rendered that I.G. is a child of the marriage. The cause is

remanded to the trial court to reconsider the property division and to consider issues pertaining to

the child of the marriage such as child support and visitation.

                                                       Catherine Stone, Chief Justice




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