









Reversed and Remanded and Plurality and Dissenting Opinions filed
October 25, 2005








 
Reversed and Remanded and Plurality and Dissenting
Opinions filed October 25, 2005.
 
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-04-00521-CV
____________
 
IN THE INTEREST OF
R.J.P., A CHILD
 
 

 
On Appeal from the 309th
District Court
Harris County, Texas
Trial Court Cause No. 98-14343
 

 
P L U R A L I T Y   O P I N I O N
The Attorney General of Texas appeals the
trial court=s order modifying a prior order of child
support that decreases the monthly child support obligation owed by appellee,
Roosevelt P., from $420 to zero.  The
Attorney General contends the trial court erred by admitting into evidence and
considering paternity results when it modified Roosevelt=s child support
obligation because: (1) collateral estoppel and res judicata barred the issue
of paternity from being relitigated; (2) the Uniform Parentage Act precluded
Roosevelt from rebutting his presumption of paternity; and (3) the paternity
results failed to meet the admissibility requirements of the Texas Family
Code.  We reverse and remand. 
 




I.  Factual and Procedural Background
Roosevelt married Anita in June of 1988,
and they lived together as husband and wife until they separated on March 12,
1991.  On July 16, 1991, four months
after their separation, Anita gave birth to R.J.P.  Anita and Roosevelt remained separated
without court ordered child support until 1998. 
In April of 1998, in cause number 98-14343, the trial court signed an
agreed child support order finding Roosevelt to be R.J.P.=s biological
father and ordering him to pay monthly support payments of $205.
In January of 2003, as a result of
Roosevelt=s increased earning capacity, the Attorney
General, in cause number 98-14343, sought to modify Roosevelt=s monthly child
support obligation from $205 to $420. 
After receiving notice of the requested modification, Roosevelt secured
a private paternity test for himself and R.J.P. 
On March 18, 2003, Roosevelt received the paternity results which he
claims prove he is not the biological father of R.J.P.  On March 21, 2003, Roosevelt filed an
original petition for divorce with the trial court under cause number 03-14736,
a different cause number than the Attorney General=s motion to
modify.  On May 19, 2003, the trial
court, without receiving a request for a hearing or a response from Roosevelt
to the Attorney General=s motion to modify, increased Roosevelt=s monthly child
support obligations from $205 to $420 in accordance with the Attorney General=s request. 
On June 9, 2003, Roosevelt filed an
amended divorce petition seeking to voluntarily terminate the parent-child
relationship.  Contemporaneously,  Roosevelt filed a motion under cause number
98-14343 seeking to terminate child support and withholding based on his claim
that he is not the biological father of R.J.P. 
On November 5, 2003, the trial court consolidated both cause numbers
into cause number 98-14343.  




At a hearing on the matter, the trial
court took judicial notice of the entire contents of the files in the case,
including the 1998 order establishing Roosevelt=s biological
paternity.  Afterwards, Roosevelt sought
to introduce paternity results establishing he is not the biological father of
R.J.P.  Over the Attorney General=s objections, the
trial court admitted the paternity results into evidence.[1]  Contemporaneously, the trial court ordered
Roosevelt, Anita, and R.J.P. to submit to a court ordered paternity test before
the next hearing.  In support of its
order to obtain genetic testing, the trial court stated:
It think it=s very important that we establish,
without any doubt, for any party, Mom or Dad or your child, who her father
is.  There is [sic] good health reasons
if she ever needs to have any sort of transplant-type stuff for us to have a
bone marrow transplant, it=s so important to know that a whole other family might
exist to be possible donors of, both, of anything that may be needed from a
health standpoint. 
 




At the follow-up hearing, the trial court
learned that Anita and R.J.P. failed to obtain the court ordered genetic test,
and over objection, the trial court re-admitted the privately secured paternity
results into evidence.[2]  On February 20, 2004, the trial court granted
the parties a divorce, eliminated withholding, and decreased Roosevelt=s monthly child
support obligation from $420 to zero without changing Roosevelt=s status as R.J.P.=s father.[3]  To support the modification, the trial court=s amended findings
of fact and conclusions of law state Roosevelt Amay not be the
biological father of the minor child.@
II.  Discussion
On appeal, the Attorney General contends
the trial court erred when it modified Roosevelt=s monthly child
support obligation to R.J.P. from $420 to zero because the determination was
based on inadmissible paternity results. 
Specifically, the Attorney General contends the trial court should not
have considered the paternity results because collateral estoppel and res
judicata bar the issue of parentage from being relitigated because the  paternity results contradict a court order
almost five years earlier.
A.      Standard
of Review




In determining questions of child support,
the trial court=s primary consideration must always be the
best interest of the child.  Clark v.
Jamison, 874 S.W.2d 312, 316 (Tex. App.CHouston [14th
Dist.] 1994, no writ).  Trial judges have
wide discretion with respect to child support. 
Dennis v. Smith, 962 S.W.2d 67, 68 (Tex. App.CHouston [1st
Dist.] 1997, pet. denied).  Questions
concerning the admission and exclusion of evidence are reviewed under an abuse
of discretion standard.  City of
Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).  We will reverse only if the trial court
abused its discretion by acting without reference to any guiding rules or
principals or by acting arbitrarily or unreasonably.  City of San Benito v. Rio Grande Valley Gas
Co., 109 S.W.3d 750, 757 (Tex. 2003); Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990).  A trial court has
no discretion in deciding what law applies or in applying the law to the facts
of the case.  In re Kuntz, 124
S.W.3d 179, 181 (Tex. 2003) (orig. proceeding); accord In re D.S., 76
S.W.3d 512, 516 (Tex. App.CHouston [14th
Dist.] 2002, no pet.) (failing to analyze or construe law correctly constitutes
abuse of discretion).  We will not reverse a trial court for
an erroneous evidentiary ruling unless the error probably caused the rendition
of an improper judgment.  See Tex. R. App. P. 44.1(a)(1); Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).         
B.      Was Biological Paternity Adjudicated in an
Earlier Proceeding?
Paternity, although uncontested, was an
issue addressed and resolved by the trial court in the 1998 Suit Affecting the
Parent Child Relationship.  The agreed
order establishes Roosevelt and Anita as A the biological
parents@ of R.J.P. and
provides for child support, conservatorship, and visitation.  An agreed order Ais accorded the
same degree of finality and binding force as a final judgment rendered at the
conclusion of an adversary proceeding.@  McCray v. McCray, 584 S.W.2d 279, 281
(Tex. 1979); see Tex. Fam. Code
Ann. ' 160.637(a)(2) (Vernon 2002) (stating a
determination of parentage is binding on all parties to an adjudication by a
court acting under circumstances satisfying the jurisdictional requirements of
Texas Family Code section 159.201). 
Thus, the finding within the 1998 order that Roosevelt is the biological
father of R.J.P. has been adjudicated and has the binding effect of a final
judgment rendered at the conclusion of an adversary proceeding. 
C.      Was
the Adjudicated Fact Properly Challenged? 




According to section 160.637(e) of the
Texas Family Code, Roosevelt can only challenge the adjudicated fact of
biological paternity Aunder the laws of this state relating to
appeal, the vacating of judgments, or other judicial review.@  Tex.
Fam. Code Ann. ' 160.637(e) (Vernon 2002).  Roosevelt did not file any motions with the
trial court after the 1998 adjudication, did not challenge the 1998 order on
appeal, and he did not file a bill of review. 
See Tex. R. Civ. P. 329b(d),
(f).  Because Roosevelt did not challenge
the 1998 order adjudicating his biological paternity Aunder the laws of
this state,@ we must determine whether the trial court
was barred from relitigating Roosevelt=s biological
paternity in determining his child support obligation. 
D.      Was
the Trial Court Barred from Relitigating Biological Paternity?
To bar an action on the basis of
collateral estoppel, the movant must prove the following elements: (1) the same
fact issue from the first suit is sought to be litigated in the second suit;
(2) the fact issue was essential to the judgment in the first suit; and (3) the
parties were cast as adversaries in the first suit.  In re T.S.S., 61 S.W.3d 481, 485 (Tex.
App.CSan Antonio 2001,
pet. denied) (citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy,
962 S.W.2d 507, 521 (Tex. 1998)).  
          The doctrine of collateral estoppel bars
relitigation of biological paternity in a subsequent suit.  See Dreyer v. Greene, 871
S.W.2d 697, 697B98 (Tex. 1993) (holding trial court=s adjudication of
biological paternity within a divorce decree barred any subsequent assertion of
parentage to the contrary); In re T.S.S., 61 S.W.3d at 485 (holding
collateral estoppel barred father from relitigating a paternity finding in
divorce decree with DNA results as a defense to paying child support); Byrd
v. Travelers Ins. Co., 275 S.W.2d 861, 863 (Tex. Civ. App.CSan Antonio 1955,
writ ref=d n.r.e.) (holding
parents of deceased worker were barred from relitigating a paternity finding in
divorce decree which found their son had fathered a son during his marriage); see
also Tex. Fam. Code Ann. ' 159.315 (Vernon
2002) (providing that A[a] party whose parentage of a child has
been previously determined by or under law may not plead nonparentage as a
defense to a proceeding under [the Uniform Interstate Family Support Act]@); Baize v.
Baize, 93 S.W.3d 197, 201 (Tex. App.CHouston [14th
Dist.] 2002, pet. denied) (recognizing the principals of res judicata and
collateral estoppel but distinguishing the facts because the issue of paternity
was raised before the trial court signed a final judgment).  Consistent with the aforementioned cases, the
doctrine of collateral estoppel barred Roosevelt from relitigating the finding
that he is the biological father of R.J.P. 




This issue of biological paternity could
have been litigated in 1998.  By his own
admission, Roosevelt harbored doubts about his biological paternity to R.J.P.
in 1997 and could have obtained genetic testing before he signed the 1998
order; however, he chose not to do so. 
Roosevelt did not challenge his adjudication of biological paternity
until eleven years after R.J.P.=s birth and more
than four years after the 1998 original adjudication.  In the aftermath of an increased child
support obligation, Roosevelt sought to relitigate the previously adjudicated
fact issue.  The 1998 judgment at issue
in this case Ashould not be set aside because one of the
individuals involved has become unhappy with the continued existence of it.@  Ince v. Ince, 58 S.W.3d 187, 191 (Tex.
App.CWaco 2001, no
pet.).     
We conclude collateral estoppel barred the
issue of Roosevelt=s biological paternity from being
relitigated in this suit because: (1) Roosevelt=s biological
paternity was litigated in a prior suit; (2) the issue of Roosevelt=s paternity was
essential to the 1998 judgment; and (3) the same parties were cast as
adversaries in the first suit.[4]  Thus, the trial court abused its discretion
when it considered the paternity results in its determination of Roosevelt=s child support
obligation.   
E.      Was
the Trial Court=s Consideration of Paternity Harmful
Error? 
To rebut the child support guidelines
presumed to be in the best interest of the child, pursuant to section 154.123
of the Texas Family Code, the trial court=s amended findings
of fact and conclusions of law considered the following: 




(1)     That the minor child was not residing with
[Anita], but has been residing with her aunt since June, 2003, in the State of
Tennessee and is enrolled in School in Tennessee, while both parents reside in
Houston, Harris County, Texas;
(2)     That [Roosevelt] has been unable to
exercise visitation consistently with the minor child since June of 2003;
(3)     That [Roosevelt] was only furnished the
child=s telephone number after an August
27, 2003, hearing in this matter and had not known the whereabouts of the child
or how to contact the child.  The Court
ordered [Anita] to produce the telephone number of the child; and,
(4)     That Petitioner, [Roosevelt], may not be
the biological father of the minor child . . .      
 
See Tex. Fam. Code Ann. ' 154.123 (Vernon
2002). 
We hold the trial court=s erroneous
consideration of biological paternity in this case was harmful, in that it
probably caused the rendition of an improper judgment.  We can find no basis in the record supporting
the trial court=s determination that modifying Roosevelt=s child support
obligation to zero dollars is in R.J.P.=s best
interest.  See Tex. R. App. P. 44.1(a).  We
sustain appellant=s first issue. 
III.  CONCLUSION
Having found harmful
error, we reverse the portion of the trial court=s
judgment modifying Roosevelt=s
child support obligation to zero and remand for further proceedings.[5]  Because of our disposition of appellant=s first issue, we need
not address appellant=s other issues.                                        
 
 
/s/      John S.
Anderson
Justice
 
 
Judgment
rendered and Plurality and Dissenting Opinions filed October 25, 2005.
Panel
consists of Justices Yates, Anderson, and Hudson (Yates, J. concurs in result
only; Hudson, J. dissents).   




[1]  The Attorney
General did not plead res judicata or collateral estoppel as an affirmative
defense in its answer to Roosevelt=s
petition as required by Texas Rule of Civil Procedure 94.  See Tex.
R. Civ. P. 94 (requiring party to plead affirmative defenses in pleading
to a preceding pleading).  However,
Roosevelt did not object when the Attorney General orally objected to the
introduction of the paternity results at trial based on its prior
adjudication.  Because Roosevelt did not
object, the affirmative defenses of res judicata and collateral estoppel were
tried by consent of the parties.  See Tex. R. Civ. P. 67; Mastin v. Mastin,
70 S.W.3d 148, 154 (Tex. App.CSan Antonio 2001, no pet.) (holding the affirmative
defense of notice was tried by consent where husband did not plead notice as a
defense and wife did not object to lack of pleadings when the defense was
argued at trial); Whitley v. Whitley, 566
S.W.2d 660, 662 (Tex. App.CBeaumont 1978, no writ) (holding the affirmative
defense of res judicata was tried by consent when it was not properly raised in
husband=s pleadings because wife did not object to husband=s oral plea of res judicata as being improperly pled).


[2]  The record
reveals R.J.P. moved to Tennessee at the end of June 2003 to live with Anita=s sister for the summer and the following school year.  The trial court was aware when it issued the
October 2003 genetic testing order that R.J.P. would be available to receive
the genetic testing over the Christmas holidays while she was visiting Houston.


[3]  The divorce
decree conflicts with the trial court=s
amended findings of fact and conclusions of law.  Under the heading ACHILD SUPPORT,@ the divorce decree orders Athat Respondent shall not be required to pay
child support effective from the 9th day of June, 2003.@  (emphasis added).  The first paragraph of the divorce decree
identifies Anita as the Respondent and Roosevelt as the Petitioner.  Therefore, the Afour
corners@ of the divorce decree does not, in fact, reduce
Roosevelt=s monthly child support obligation to zero.  
However, the trial court=s amended findings of fact and conclusions of law
filed after the judgment clearly establish that Roosevelt=s child support obligation is terminated.  Findings of fact and conclusions of law filed
after a judgment are controlling if they conflict with a previous
judgment.  Capital Senior Mgmt. 1, Inc.,
v. Tex. Dep=t of Human Servs.,132 S.W.3d 71, 74 n.3 (Tex. App.CAustin
2004, pet. denied); Dickerson v. DeBarbieris, 964 S.W.2d 680, 684 (Tex.
App.CHouston [14th Dist.] 1998, no pet.).  Therefore, Roosevelt=s monthly child support obligation was modified.                      


[4]  The dissent,
without any authority, contends reliance on collateral estoppel and res
judicata are inappropriate in the context of a parent-child relationship
because, for example, the trial court maintains continuous, exclusive
jurisdiction and has the authority to modify the terms of that relationship as
changing circumstances require.  I
respectfully disagree that litigation of biological paternity is a changing
circumstance.  As discussed herein,
biological paternity could have been litigated in 1998.  Allowing parties to relitigate this issue
would burden the courts and traumatize the child, an outcome this court should
not sanction.  See, e.g., John
G. and Marie Stella Kenedy Mem=l
Found. v. Dewhurst, 90 S.W.3d 268,
288B89 (Tex. 2002) (A[R]es
judicata and collateral estoppel both serve >the
dual purpose of protecting litigants from the burden of relitigating an identical
issue with the same party or his privy and of promoting judicial economy by
preventing needless litigation.=@ (quoting Parklane Hosiery Co., Inc. v. Shore,
439 U.S. 322, 326, 99 S. Ct. 645, 649 (1979))).   


[5]  If the error affects only part, but
not all of the case, a judgment may be reversed only as to the part affected by
the error.  See Tex. R. App. P. 44.1(b); see also
Tex. R. App. P. 61.2. 


