i i i i i i
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 04-09-00641-CV
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.
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i i i i i i
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 04-09-00641-CV
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.).
-3- 04-09-00641-CV
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.
-4- 04-09-00641-CV
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.
-5- 04-09-00641-CV
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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