












 
 
 
 
 
 
                             NUMBER
13-04-066-CV
 
                         COURT
OF APPEALS
 
               THIRTEENTH
DISTRICT OF TEXAS
 
                  CORPUS
CHRISTI - EDINBURG
___________________________________________________________________
 
              IN THE INTEREST OF J. I. Z., A MINOR CHILD

___________________________________________________________________
 
                  On
appeal from the 107th District Court
                          of
Cameron County, Texas.
____________ 
______________________________________________________
 
                              O
P I N I O N
 
       Before
Chief Justice Valdez and Justices Hinojosa and Rodriguez
                                Opinion
by Justice Rodriguez
 
Appellant, the Attorney General of Texas, appeals
the trial court's order granting a motion to reduce the child support payments
of appellee, the legal father of J.I.Z., a minor child.  Because the child support rights were
assigned to the State, the Attorney General intervened.  By four issues, appellant generally contends
that until the parent-child relationship is severed, appellee remains the
child's legal father and owes a duty of support that cannot now be modified on
the basis that he is not the child's biological father.  We reverse and render.




I.  Background
A 1996 paternity adjudication established the
parent-child relationship between appellee and the child.  Among other things, the order identified
appellee as the biological father of the child and ordered that he pay regular
child support in the amount of $123.00 a month beginning July 1996.  Appellee did not appeal this judgment.  In 2002, after falling behind on child
support payments, appellee obtained DNA test results which he contends excluded
him as the child's father.  Based on the
results of this DNA test, appellee filed a motion to modify his child support
payments.  Appellee attached the DNA test
results to his pleading but did not offer or admit the results into evidence at
the hearing on his motion to modify. 
After the hearing, at which no evidence was offered, the trial court
granted appellee's motion and reduced his child support payments to zero, thus
relieving appellee of his duty to pay child support.  This appeal ensued.
II.  Analysis
By four issues, appellant contends that the trial
court abused its discretion in granting appellee's motion to modify his child
support because (1) appellee cannot use a motion for modification to circumvent
the requirements of a bill of review, (2) there is no evidence to support a
finding that a material and substantial change in the financial situation of
either appellee or the child has occurred, (3) there is no evidence to support
a finding that there has been any change of circumstances since the previous
judgment, and (4) there is no evidence that the court's order is in the best
interest of the child.




A.  Standard
of Review
We review a trial court's decision to deny or grant
a motion to modify a child support order for an abuse of discretion.  See Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (per curiam).  The
test for abuse of discretion is whether the trial court acted without reference
to any guiding rules or principles and therefore acted arbitrarily or
unreasonably.  Id.  A trial court's failure to analyze or apply
the law correctly constitutes an abuse of discretion. Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992); see Worford, 801 S.W.2d at 109.
In determining whether an abuse of discretion has
occurred, we view the evidence in a light most favorable to the court's
decision and indulge every legal presumption in favor of its judgment.  Holley v. Holley, 864 S.W.2d 703, 706
(Tex. App.BHouston [1st Dist.] 1993, writ denied).  Courts consider sufficiency of the evidence
as one factor when determining whether the trial court abused its
discretion.  Zorilla v. Wahid, 83
S.W.3d 247, 252 n.1 (Tex. App.BCorpus Christi 2002, no pet.).  If findings of fact or conclusions of law are
neither filed nor requested, the judgment of the trial court implies all
necessary findings of fact to support it. 
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.
1992).  When a reporter's record is
brought forward, the legal and factual sufficiency of the implied findings may
be challenged on appeal.  Id. at
84.
B.  Motion to
Modify Support




By its first issue, appellant contends that it is
not legally permissible to use a support modification action to circumvent the
requirements of a bill of review, requirements that must be established in
order to fully address the issue of parentage. 
See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751‑52
(Tex. 2003) (setting out that a "bill of review petitioner must ordinarily
plead and prove (1) a meritorious defense to the cause of action alleged to
support the judgment, (2) that the petitioner was prevented from making a
meritorious claim or defense by the fraud, accident or wrongful act of his or
her opponent, and (3) the petitioner was not negligent") (citing
Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950)).  Appellant contends that until this
parent-child relationship is determined by a bill of review proceeding or
severed by termination,[1]
appellee remains the child's legal father and continues to owe a duty of
support commensurate with his financial ability and the child's needs.  Appellant asserts that appellee cannot avoid
his duty to provide support simply by filing a motion to decrease his payments
to zero, especially when the motion is based on a DNA report that purports to
exclude his biological parenthood.  We
agree.




After the time for an appeal expires, a bill of
review is the only method available to overturn a judgment.  Middleton v. Murff, 689 S.W.2d 212,
213 (Tex. 1985) (per curiam). 
Accordingly, a bill of review is the only means by which a party may
overturn a paternity judgment after the time for an appeal has expired.  See Spears v. Haas, 718 S.W.2d 756,
758 (Tex. App.BCorpus Christi 1986, orig. proceeding) (hearing bill
of review two years after judgment); see also Layton v. Nationsbanc Mortg.
Corp., 141 S.W.3d 760, 763 (Tex. App.BCorpus Christi 2004, no pet.) (setting out that the
only exception to the four-year limitation for a bill of review is when the
petitioner proves extrinsic fraud); Amanda v. Montgomery, 877 S.W.2d
482, 488 (Tex. App.BHouston [1st Dist.] 1994, no writ) (Hedges, J.,
concurring) (concluding alleged fraudulent acts pertaining to paternity, an
issue involved in the original action, are allegations of intrinsic fraud, not
extrinsic fraud).  The Uniform Parentage
Act also provides that "[a] party to an adjudication of paternity may
challenge the adjudication only under the laws of this state relating to
appeal, the vacating of judgments, or other judicial review."  See Tex.
Fam. Code Ann. _ 160.637(e) (Vernon 2002).




Moreover, while a court may modify child support
payments, an adjudicated father's discovery that he is not the biological
father of the child is not an event that provides the basis for termination of
his duty of support.  See id. _ 154.006 (providing, unless otherwise agreed in
writing or expressly provided in the order, termination of the duty of support
occurs when the child marries, has disabilities removed, or dies, or the father
(obligor) and mother (obligee) remarry); In re T.S.S., a Child,
61 S.W.3d 481, 485 (Tex. App.BSan Antonio 2001, pet. denied)  (setting out that "Texas courts are not
free to adopt a rule that an adjudicated father may be relieved of his support
obligations anytime he comes forward with DNA evidence post-decree that tends
to exclude him as the biological father."); Thompson v. Thompson,
572 S.W.2d 761, 763-65 (Tex. Civ. App.BTyler 1978, no writ) (holding that "appellant
will not be permitted, at this later [support modification] hearing, to raise
for the first time the contention that he is not the father of the
child").  Additionally, the Uniform
Interstate Family Support Act provides that "[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 this chapter."  Tex.
Fam. Code Ann. _ 159.315 (Vernon 2002); see id. ' 160.607(b) (Vernon Supp. 2004-05) (setting out that
a proceeding seeking to disprove the father-child relationship between a child
and the child's presumed father may be maintained only if the court determines
the presumed father never treated the child as his own and the presumed father
and the child's mother never lived together or engaged in intercourse during
the probable time of conception); id. _ 160.608 (authorizing the trial court to deny a
motion for an order for genetic testing filed by a presumed father).




Thus, because the time for an appeal has expired,
appellee may only vacate the judgment of paternity through a bill of review,
although, in this case, he may not satisfy the requirements for a bill of
review.  See Amanda, 877
S.W.2d at 488 (explaining that mother's alleged fraud (concealing her knowledge
of the identity of the child's real biological father) was not extrinsic
because it was not "collateral" to the matter that was tried, but
rather directly related to paternity, a subject actually an issue in the
initial proceeding).  Appellee should
not, however, be allowed to avert his duty of support by filing a motion to
decrease his support payments to zero on the basis of DNA results without first
overturning the parentage judgment or terminating his parentage.[2]  We, therefore, conclude that the trial court
abused its discretion when it arbitrarily granted appellee's motion and reduced
his child support payments to zero. 
Appellant's first issue is sustained.
C. 
Evidentiary Challenges
By its remaining issues, appellant generally
contends that the evidence is legally insufficient to establish that a material
and substantial change of circumstances has occurred since the previous
judgment or to establish that a reduction of support to zero would be in the
best interest of the child.  See Tex. Fam. Code Ann. ' 156.401 (Vernon Supp. 2004-05) (providing that a
court may modify a child support order if the circumstances have materially and
substantially changed since the date of the order's rendition); id. ' 154.122 (Vernon 2002) (providing that application
of support guidelines is rebuttably presumed to be in the best interest of the
child); id. ' 154.123 (setting out factors to consider if the
evidence rebuts the presumption that application of the guidelines set out in
the family code is in the best interest of the child); MacCallum v.
MacCallum, 801 S.W.2d 579, 582 (Tex. App.BCorpus
Christi 1990, writ denied) (concluding that the best interest of the child
shall always be the trial court's primary consideration in determining
questions of child support).  We agree.




Appellee has provided no evidence to establish a
material and substantial change in any circumstances to warrant a modification
of support payments to zero or that such a modification was in the best
interests of the child.  Appellee
attached DNA test results to his motion to modify but failed to introduce the
results or any other evidence at the hearing. 
Like our sister court in San Antonio set out in In re T.S.S., we
are not free to adopt a rule that would allow an adjudicated father to be
relieved of his support obligations simply by coming forward with DNA evidence
post-decree that tends to exclude him as the biological father.  See In re T.S.S., 61 S.W.3d at
485.  Therefore, even if we were to
conclude that appellee properly pursued the reduction of his support payment
through a motion to modify, he has provided no evidence to support the
reduction or to establish that the reduction was in the best interest of the
child.  It was an abuse of discretion for
the trial court to modify appellee's child support payments to zero on this
basis.  Appellant's second, third, and
fourth issues are sustained.
III.  Conclusion
Because we have
concluded that there is no legal basis for the trial court to reduce appellee's
child support payments to zero, appellee remains legally obligated to
financially support the child.  See
Tex. Fam. Code Ann. _ 151.001(a) (setting
out rights and duties of parent).  Accordingly, we reverse the trial court's
judgment and render judgment that appellee's motion to decrease his child
support be denied.                                                                                     
NELDA V. RODRIGUEZ
Justice
 
Opinion delivered and
filed
this 18th day of
August, 2005.  




[1]We note that at the hearing on the
motion to modify, appellee's counsel informed the court that appellee
"wishes to file a termination on this matter; but at this point . . . he
has filed a motion to modify to reduce the child support payments to zero. . .
."


[2]We also note that because appellee
remains the child's legal father, appellant cannot pursue the enforcement of
child support duties against the child's biological father.
 


