in the Interest of E.H.L v.

• Court: Court of Appeals of Texas
• Decided: June 9, 2022
• Docket: 09-20-00191-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00191-CV __________________

IN THE INTEREST OF E.H.L.V. __________________________________________________________________

On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 19-09-13245-CV __________________________________________________________________

MEMORANDUM OPINION

In Texas, a person who signs an acknowledgement of paternity may

challenge the acknowledgement based on fraud, duress, or material

mistake of fact. 1 That said, for acknowledgments signed before

September 1, 2011, the law that applies to suits challenging such

authorizations must be filed within four years of the date the person filed

the acknowledgment with the Texas Bureau of Vital Statistics. 2 In 2019,

E.H.L.V.’s father filed a petition to set aside the acknowledgment of

1SeeTex. Fam. Code Ann. § 160.308(a). 2SeeAct of May 24, 2005, 79th Leg., R.S., ch. 478, § 1, 2005 Tex. Gen. Laws 1337, 1337 (amended 2011) (current version at Tex. Fam. Code Ann. § 160.308). 1 paternity he signed in 2005. The trial court, however, found the petition

untimely after finding that E.H.L.V.’s father failed to file it within four

years of the date the acknowledgment was filed with the Bureau of Vital

Statistics. E.H.L.V.’s father appealed but has not shown that the trial

court applied limitations improperly to his claim to rescind the

authorization, so we affirm the trial court’s order denying his petition

challenging the acknowledgment he executed fourteen years before he

filed suit.

Background

In 2005, E.H.L.V.’s Mother, Elizabeth, gave birth to E.H.L.V.,

whom we will call Aiden. 3 After Aiden’s birth, Aiden’s Father, William,

signed an Acknowledgment of Paternity recognizing that he is Aiden’s

father. 4 In January 2005, Elizabeth and William filed the form with the

Texas Bureau of Vital Statistics.

In September 2019, over fourteen years after signing the

acknowledgment, William asked the trial court to set aside the

acknowledgment. In the petition, William the authorization “should be

3Elizabeth and Aiden are pseudonyms not the mother’s and child’s real names. 4William is also a pseudonym.

2 set aside on the basis of fraud, duress, or material mistake of fact.” Even

so, William never alleged specifics to explain how the fraud, duress or

mistake occurred. When Elizabeth answered, she claimed the statute of

limitations barred William’s petition seeking to rescind the authorization

that he signed in 2005.

In August 2020, the trial court called the case for trial. Elizabeth

neither appeared nor participated in the trial. Only one witness, William,

was called as a witness in the trial. When the trial ended, the trial court

denied William’s petition, finding William’s claim seeking to rescind the

acknowledgment untimely because he filed the petition “more than four

years after the Acknowledgment of Paternity in this matter was filed[.]”

By written order, the trial court denied Father’s challenge and denied all

other relief that William requested.

After signing the order, William filed a motion for a new trial. In

the motion, William alleged that before the trial, Elizabeth had signed

an agreed order to set aside the Acknowledgment of Paternity and that

by doing so, she waived her statute of limitations defense. William also

argued the trial court erred in concluding his claim was barred by the

four-year statute of limitations. The trial court denied William’s motion

for new trial. William filed a timely notice of appeal.

3 Standard of Review

By statute, trial courts must conduct proceedings challenging

acknowledgments of paternity, which includes proceedings to adjudicate

disputes between parties over parentage. 5 An appellate court reviews

findings of fact in proceedings adjudicating parentage for abuse of

discretion. 6 The test for abuse of discretion is whether the record shows

the trial court acted without reference to any guiding rules and

principles. 7 On appeal, William argues the trial court erred in concluding

that the changes the Legislature made to the Family Code in 2011 do not

apply to the Acknowledgment of Paternity that he signed in 2005.

Under Texas law, an abuse of discretion occurs when a trial court

“fails to analyze or apply the law correctly.” 8 As to the trial court’s

resolution of disputed issues of fact, we review the evidence the trial court

considered in the light that favors the trial court’s decision, and we

5See Tex. Fam. Code Ann. § 160.309(d). 6See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2008, no pet.). 7Worford, 801 S.W.2d at 109. 8Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex.

1985) (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding)). 4 indulge every legal presumption that favors the trial court’s judgment. 9

We will uphold the trial court’s ruling as long as there is some evidence

of a substantive and probative character supporting the ruling. 10

Analysis

William raises two issues in his appeal. First, he argues that by

signing an agreed order to set aside the Acknowledgement of Paternity,

Elizabeth waived her statute of limitations defense. We note that William

raised that argument for the first time in his motion for new trial. Second,

William argues the trial court erred in failing to apply the changes the

Legislature made in 2011 to the Family Code retroactively to the

Acknowledgment of Paternity that he signed in 2005. According to

William, the changes the Legislature made gave him the right to file his

petition to rescind the authorization even though he signed it in 2005 and

it was filed with the Bureau of Vital Statistics for more than four years

before he filed suit.

Turning to William’s claim that Elizabeth waived her statute of

limitations defense, we note that William never filed pleadings alleging

9In the Interest of W.J.B., 294 S.W.3d 873, 878 (Tex. App.— Beaumont 2009, no pet.). 10Id.

5 waiver before the trial court conducted the hearing and signed an order

denying William’s petition to rescind the acknowledgment of paternity. 11

During the hearing on the petition, the record reveals that William never

mentioned that Elizabeth had signed an agreed order setting aside the

acknowledgement of paternity. Moreover, the record does not show that

William, before the hearing or during the hearing, ever filed pleadings,

argued, or obtained a ruling on his claim that by signing an agreed order,

Elizabeth had waived her statute of limitations defense.

Under Texas law, waiver is an affirmative defense. 12 When seeking

to raise waiver, a party must plead, prove, and secure findings on the

defense. 13 William, however, first raised his claim of waiver in his motion

for new trial. By waiting to raise his affirmative defense until he moved

for a new trial, William waived his claim that Elizabeth waiver her

statute of limitations defense and failed to preserve it by trying to raise

it for the first time in a motion for new trial. 14 We overrule William’s first

issue.

11Tex. R. Civ. P. 94 (requiring that parties plead waiver as an avoidance to an affirmative defense). 12See id. 13See In re S.A.P., 156 S.W.3d 574, 576-77 (Tex. 2005). 14Hamm v. Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268

(Tex. App.—Houston [1st Dist.] 2005, pet. denied). 6 Turning to William’s second issue, he argues the trial court erred

by failing to apply the changes the Legislature made in 2011 to section

160.308 of the Family Code to the authorization he signed in 2005.

Section 160.308(a), which has been in effect since 2011, provides that

even after the period for rescission ends, a party who signs an

acknowledgement of paternity may challenge the acknowledgement

based on fraud, duress, or material mistake of fact. 15 In 2005, when

Father signed the acknowledgment, the law provided proceedings

challenging an acknowledgment “must be commenced before the fourth

anniversary of the date the acknowledgment . . . is filed with the bureau

of vital statistics unless the signatory was a minor on the date the

signatory executed the acknowledgment[.]” 16 When the Legislature

amended section 160.308 in 2011, it made it clear that as related to

section 160.308(a), the changes it was making to the law applied “only to

an acknowledgment or denial of paternity that [became] effective on or

after the effective date [Sept. 1, 2011] of this Act.” 17 For

Tex. Fam. Code Ann. § 160.308(a). 15See 16See 2005 Tex. Gen. Laws 1337, 1337. 17See Act of May 27, 2011, 82nd Leg., R.S., ch. 1221, § 11(a), 2011

Tex. Gen. Laws 3255, 3258 (codified at Tex. Fam. Code Ann. §§ 160.301 - .315) (Voluntary Acknowledgment of Paternity, addressed in Subchapter D)). 7 acknowledgments signed before the Legislature changed section 160.308

in 2011, the Legislature made it clear the former law “is continued in

effect for that purpose.” 18

On appeal, Father argues the 2011 version of section 160.308

applies to his petition to rescind the authorization rather than the

version that existed in 2005. According to William, the Legislature made

it clear that the changes it made to section 160.308 applied retroactively

to proceedings challenging affidavits of paternity on grounds of fraud,

duress, or mistake. To support his argument, William relies on language

in the statute applicable to proceedings to adjudicate parentage—

proceedings that are Subchapter G claims filed to adjudicate parentage,

not Subchapter D claims challenging authorizations of paternity—to

support his appeal. 19 The enabling language that William relies on and

that applies to proceedings challenging paternity states:

The changes in law made by this Act with respect to a proceeding to adjudicate parentage apply only to a proceeding that is commenced on or after the effective date of this Act. 20

18Id. 19Compare 2011 Tex. Gen. Laws 3255, 3258 (Voluntary Acknowledgment of Paternity, addressed in Subchapter D)), with Act of May 27, 2011, 82nd Leg., R.S., ch. 1221, § 11(b), 2011 Tex. Gen. Laws 3255, 3258 (codified at Tex. Fam. Code Ann. §§ 160.601-.637) (Proceeding to Adjudicate Parentage, addressed in Subchapter G)). 20See 2011 Tex. Gen. Laws 3255, 3258.

8 William argues the 2011 law applies to this proceeding because he filed

the proceeding in 2019.

The trial court, however, interpreted William’s petition claim as a

petition to rescind the authorization of paternity, not as a petition to

adjudicate parentage. At William’s request, the trial court provided

William with findings of fact and law. In them, the trial court made it

clear that the trial court interpreted William’s petition as a claim to

rescind the acknowledgment of paternity that he signed; for example, the

trial court’s findings and conclusion are silent about adjudicating any

parentage claim. In our opinion, the trial court construed William’s

petition narrowly, probably too narrowly since William’s petition when

liberally construed includes a challenge to his paternity. For instance, he

alleges that no protective orders are in effect as to the parties or the child.

A statement such as that is required when a party files a petition to

adjudicate parentage. 21 On top of that, William’s prayer asks that the

trial court “adjudicate the parentage of the child.” Last, we observe that

the trial court, in its final order, denied all other relief. Thus, we infer

21Tex. Fam. Code. Ann. § 160.6035. 9 from the trial court’s broad language that the denial implicitly included

and denied William’s claim to adjudicate parentage of the child.

Yet when William appealed, he failed to assign any error and did

not argue that the trial court misconstrued his petition. In his brief,

William does not cite the Court to any sections in Subchapter G to argue

that the trial court improperly construed his claims. The only time

William used the term parentage in his brief is when he quotes the

enabling language the Legislature used in 2011 when amending section

160.308. Plainly stated, William does nothing in his brief explain to the

Court why the trial court failed to appreciate that his petition included a

claim asking the trial court to adjudicate parentage and a claim to

rescind the authorization too.

It is not the Court’s role to make the arguments that William might

have raised (and briefed) to support his appeal. The Texas Supreme

Court has repeatedly cautioned the courts of appeal against

addressing unassigned error. 22 “Except for fundamental error, appellate

courts are not authorized to consider issues not properly raised by the

22See, e.g., Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Allright, Inc. v. Pearson, 735 S.W.2d 240 (Tex. 1987). 10 parties.” 23 We conclude whether the trial court misconstrued William’s

petition is not a question before us given the issues that William filed and

briefed in his appeal. 24

Turning to the argument William makes, he argues that in

September 2011, the Legislature changed the statute to allow parties to

ask a trial court to rescind an acknowledgement of paternity for fraud,

duress, or mistake of fact even if the party who filed the challenge filed

his petition more than four years the authorization of paternity was filed

with the Bureau of Vital Statistics. We disagree. As to suits challenging

acknowledgment of paternity (as distinguished from proceedings under

Subchapter G to adjudicate parentage) the enabling language of the

statute provides:

The changes in the law made by this Act with respect to an acknowledgment or denial of paternity apply only to an acknowledgment or denial of paternity that become effective on or after the effective date of this Act. 25

So since William signed the acknowledgment at issue in 2005, the change

the Legislature made in 2011 allowing a party more time to challenge

23Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 577 (Tex. 2006) (citing In re B.L.D., 113 S.W.3d 340, 350-52 (Tex. 2003)). 24See Tex. R. App. P. 38.1(f), (h); 44.1. 25See 2011 Tex. Gen. Laws 3255, 3258.

11 affidavits of paternity for fraud, duress, and mistake does not apply to

the claim William filed challenging the authorization he signed in 2005.

Given the trial court’s narrow construction of William’s petition, a

construction that William has not challenged in his appeal, we hold the

trial court did not err in finding Williams claim to rescind the

authorization barred by limitations. For that reason, William’s second

issue is overruled.

Conclusion

For reasons explained above, the trial court’s Order Denying the

Petition to Challenge an Acknowledgment of Paternity is

AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on March 2, 2022 Opinion Delivered June 9, 2022

Before Golemon, C.J., Kreger and Horton, JJ.