In the Interest of J.H.

264 S.W.3d 919, 2008 Tex. App. LEXIS 9787
CourtCourt of Appeals of Texas
DecidedSeptember 10, 2008
DocketNo. 05-07-01176-CV
StatusPublished
Cited by14 cases

This text of 264 S.W.3d 919 (In the Interest of J.H.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of J.H., 264 S.W.3d 919, 2008 Tex. App. LEXIS 9787 (Tex. Ct. App. 2008).

Opinions

OPINION

Opinion by

Justice BRIDGES.

James Richard Norman, the respondent father in the action before the trial court, appeals from an order adjudicating parentage and ordering the payment of child support. In three issues, Norman asserts (1) the statute of limitations bars the At[921]*921torney General’s action; (2) the trial court acted unreasonably in ordering Norman to pay retroactive child support; and (3) the trial court misapplied the statute governing child support by ordering Norman to pay current child support for the nineteen-year-old child who is being home-schooled. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

J.H. is the biological child of Jo Nanette Haywood and Norman. At the time of J.H.’s conception, Haywood was married to Robert McCown, but they were separated and living apart. Norman had sexual intercourse with Haywood during the probable time of conception. While she was pregnant, Haywood told Norman about her pregnancy, and he denied paternity. Norman denies receiving any communications from Haywood thereafter. Haywood and McCown divorced when Haywood was four-and-a-half months pregnant. The divorce decree stated there were no children of the marriage and none were expected. J.H. was born on December 31, 1987. Haywood testified she tried to contact Norman several times through a mutual friend, but he did not respond.

On September 26, 2005, the Office of the Attorney General (the AG) filed a Petition to Establish the Parent-Child Relationship seeking to establish Norman’s paternity. Norman denied paternity and requested DNA testing, which confirmed his paternity of J.H. with 99.99% certainty. Norman signed a “Temporary Agreed Order Establishing the Parent-Child Relationship” in which the court found Norman was J.H.’s biological father. The AG amended its petition to join the presumed father, McCown, as a party. McCown denied paternity. Haywood later filed a cross-petition to adjudicate parentage. In response, Norman filed an amended answer raising the defense of limitations.

The trial court held an evidentiary hearing. At the time of the hearing, J.H. was nineteen years old. Haywood testified J.H. is enrolled in an internet home-schooling program through Penn Foster and has completed one-third to one-half of the program. Penn Foster is an accredited school, and the program leads toward a high-school diploma. J.H. is required to finish the program in three years. He had been enrolled in the program for nineteen months at the time of the hearing. J.H. studies during the day while Haywood is at work, and she reviews his work in the evening. Haywood testified J.H. is making progress toward his diploma by completing required testing.

The trial court ruled the statute of limitations found in family code section 160.607 did not apply to an action brought by the AG, and Norman has a statutory obligation to pay child support. The trial court then issued a letter ruling1 advising it would establish the parent-child relationship between Norman and J.H. and would order child support until J.H. graduates from high school and retroactive child support for the preceding four years. Norman filed a motion for reconsideration addressing child-support issues only. The trial court signed an order adjudicating parentage finding Norman is J.H.’s father and ordering the payment of retroactive child [922]*922support and current child support until J.H. “reaches the age of eighteen years or graduates from high school.” The language of the trial court’s order tracks the statute for awarding child support through high school graduation. No findings of fact or conclusions of law were requested or filed. Norman filed this appeal.

II. STATUTE OF LIMITATIONS

In his first issue, Norman contends the AG’s action was barred by the statute of limitations for a suit adjudicating parentage of a child with a presumed father. See Tex. Fam.Code Ann. § 160.607(a) (Vernon Supp.2008).2 The statute provides that, “[ejxcept as otherwise provided by Subsection (b), a proceeding brought by a presumed father, the mother, or another individual to adjudicate the parentage of a child having a presumed father shall be commenced not later than the fourth anniversary of the date of the birth of the child.” Id. Specifically, Norman argues the AG is “another individual” under the family code and the trial court’s holding that it is not “another individual” creates an unreasonable loophole, rendering the statute of limitations meaningless and circumventing the legislature’s public policy intent. The AG and Haywood do not directly address Norman’s assertion that the AG is “another individual” under the statute. They argue section 160.607(a) does not apply because J.H. had no presumed father because McCown’s status as J.H.’s presumed father had been rebutted by the DNA test, and the trial court had already resolved Norman’s paternity in its Temporary Agreed Order. Further, the AG and Haywood argue the action is not barred because, even if the limitation in section 160.607(a) does apply, the exception to the statute of limitations in section 160.607(b) allows the proceeding to be maintained at any time.

A presumption of paternity exists if a man is married to the mother of the child and the child is born before the 301st day after the day the marriage was terminated by divorce. Tex. Fam.Code Ann. § 160.204(a)(2) (Vernon Supp.2008). This presumption legally establishes the father-child relationship between the man and child. Tex. Fam.Code Ann. § 160.201(b)(1) (Vernon 2002). However, a proceeding seeking to disprove the father-child relationship between a child and the child’s presumed father may 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.

Tex. Fam.Code Ann. § 160.607(b) (Vernon Supp.2008). The party seeking to avoid limitations bears the burden of proving a provision that would toll the statute of limitations. See In re Rodriguez, 248 S.W.3d 444, 450 (Tex.App.-Dallas 2008, no pet.) (citing In re S.C.L., 175 S.W.3d 555, 558 n. 1 (Tex.App.-Dallas 2005, no pet.)); see also Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988) (party seeking to avoid a statute of limitations bears the burden of proving a tolling provision once the initial bar is established as a matter of law).

[923]*923Norman argues section 160.607 acts to bar the action because the AG is “another individual” under the statute and J.H. was a child with a presumed father when the action was filed. See Tex.

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Bluebook (online)
264 S.W.3d 919, 2008 Tex. App. LEXIS 9787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-jh-texapp-2008.