*1 GOHEEN, Appellant, P. KOESTER, Appellee. No. 05-89-01474-CV. Texas, Appeals
Court
Dallas.
July 1990.
Rehearing Denied Aug. 1990. *2 Claunch, Worth, appellant.
Jim Fort Fuller, Dallas, Kevin R. for appellee. ENOCH, C.J., Before and EARL W. STEPHENS2, SMITH1 and BILL J. JJ. (Retired, Sitting Assignment).
OPINION ENOCH, Chief Justice. brought
Ramon P. Goheen suit for the voluntary legitimation child, Mallory Boteler, appointment Jordan and for possessory rights conservator visi- Koester, tation. Lisa Boteler the mother husband, Koester, Mallory, Gary her responded seeking termination of Ramon’s rights parental adoption Mallory by Gary. appeal Both Ramon and Lisa trial court’s which establishes Ra- rights, mon’s parental grants supervised visitation for a limited time to be followed visitation, unsupervised refuses to ter- parental rights, minate Ramon’s makes conservator, managing grants the sole child support Smith, Justice, Justice,
1. The Honorable W. Stephens, Earl Re- 2. The Honorable Bill J. Re- tired, Appeals, tired, Court of Third Appeals, District of Texas Court Fifth District Texas at Austin, sitting by assignment. Dallas, sitting by assignment. petition, grants McCurley future BOTELER KOES- original LISA month, proceedings and are also per TER these support of $450.00 necessary fee for like pay Lisa's requires that Ramon County, por- services rendered Dallas $5,000.00. appeals that fees of grants Texas. which trial court’s order *3 por- appeals Lisa attorney fees. Lisa child, c.The of the MAL- best interests order that failed to of the trial court’s BOTELER, would LORY JORDAN to the grant child retroactive date assessing against by best served We reverse that Mallory’s birth. judgment P. GOHEEN a RAMON judgment Lisa attor- which awards $5,000.00 attorney’s fees incurred for ney remand the cause to the trial fees and by LISA BOTELER KOESTER. proper a determination of the court for attorney fees allocable to the
amount of OF LAW CONCLUSIONS Lisa. reverse representation of We also judgment the trial court’s Tex,Fam.Code 1. § Ann. grant to Lisa child which failed prevents this Court amended in date of birth. awarding BOTELER KOES- from LISA judgment is respects other the trial court's TER child,
affirmed. MALLORY of the birth BOTELER, prenatal except for JORDAN expenses for care health FACTS the mother and child. native, tive to the date of ternity puted. Ramon was declared counterclaim, Ramon’s logical specified rights of lump sum award of child The facts in this case are she is not contested on parental requested Mallory rights, Mallory’s visitation. sought and was basically termination of birth. to be the bio- Ramon’s appeal. By grant retroac- granted undis- alter- her pa- this Court would have DAN BOTELER. ment support from sum of 1989, for 3. [*] But $9,930.16due for retroactive legal the benefit Tex.Fam.Code [*] for effect May this # 16, 1986, Court’s of the 1987 amend- of MALLORYJOR- # Ann. to March [*] § 13.42(a), a lump # paid Mallory award of also ings of requested supervised little or no trial court fact and conclusions was born support prior made fees. May visitation following find- of law: 1986. May plus 1989. these following a. award 5. # proceedings, the reference granting LISA BOTELER # conclusions [*] of a of law: # Court makes the attorney’s fees KOESTER [*] #
$5,000.00 attorney’s against for P. is authorized RAMON GOHEEN OF FACT FINDINGS by justified finds is and this Court attorney’s fees 11.18(a), 12. In reference § Ann. Tex.Fam.Code KOESTER, Court LISA BOTELER 13.42(b). findings: following makes the judg- order that the The additional b. ment fees assessed necessary for LISA BOTEL- a. It was en- legal P. GOHEEN be against RAMON ER to seek and obtain KOESTER contempt authorized pro- by representation in reference to the forceable justified in this finds is this Court ceedings on file. 13.42(c). case $5,000.00 The sum b. arguments on Lisa’s ren- We will address necessary fee for the services then Rasor, support and Koons, of retroactive child Fuller award dered & points concerning uncon address Ramon’s error constitutional when its statute is stitutionality apparent, fees. obvious Lillie,
Lovejoy
(Tex.Civ.App. Tyler
ref’d n.r.
writ
RETROACTIVE CHILD SUPPORT
e.),
is constitutional
or whether
error,
In her sole
Lisa ar
public
statute is of sufficient
gues
trial court
in conclud
erred
consideration,
justify
interest
such
as matter of
law
Publishing Co. v.
Houston Chronicle
prevents
the Texas
(Tex.
Houston,
City
Statutes 13.42(a) an unconstitu- give section statute, would presumed it is that: enacting a Perez, interpretation. tional See Gomez (1) compliance with constitutions 872, 875, 535, 539, 409 U.S. 93 S.Ct. United of this state and the States (1973)(holding once a state L.Ed.2d 56 intended; right on be- posits judicially enforceable (Vernon Tex.Gov’t.Code support from half of children to needed is no constitu- their natural fathers there (a) of 13.42 of the Subsection denying tionally justification sufficient part reads: pertinent Texas simply right to a child such an essential Support, Conservatorship, 13.42. not married its father has because natural Fees, Payments mother).3 his (a) determination In a suit which a Stotts, Adams v. sought, 1983, writ), this Court provide managing possessory held that section conservatorship support of and ac- conjunction read in Code needed to be alleged child; except cess that no which states that effect section 13.09 “[t]he denying paternity may be re- designating alleged decree fa [the] any payments quired to make is to create ther as the father of the child paternity is the child until *5 relationship the parent-child paternity, the between finding a established. On if child born to father and child as were support retroac- may the court order marriage.” during the father and mother filing tive to the time suit Consequently, the Court rea Id. at 800. and, a proper showing, may on a soned, of this relation the establishment equitable party pay all ship duty prenatal also established related health of birth. Id. the child from the date expenses care the mother and child. “that the best went on to state Adams 13.42(a) (Vernon § Ann. Tex.Fam.Code of a child cannot be served interests added). Supp.1990) (emphasis The case ignoring that there were costs the fact interpretation empha- turns on our child from the by supporting the incurred ignores If all language. sized the Court his the date of date of birth to interprets final but the sentence and Thus, Court concluded paternity.” Id. pro- language to that the courts are mean prevent 13.42(a) a does not that section child awarding hibited from expenses in considering past from any filing than the time earlier paternity is support after child petition, then the Court would be if “[L]ogic dictates that a Id. established. way a interpreting the statute such that judgment, the time parent is a illegitimate children are denied benefits birth, parent at the time of a legitimate he was also are not denied that children. begin responsibilities short, parental interpreting his the Court would be parent birth.” M4 deny benefits he becomes the statute to children —at equal Constitution and not the protection 3 of the Texas that section 3. We note clause of the equal protection of the United States United States Constitution has been held to be clause 1, with article section 3 of the Tex co-extensive Constitution. County as Constitution. See v. Nueces Twiford Dist., 325, Appraisal 328 n. 5 prior to the 1987 amend- was decided 4. Adams 1987, n.r.e.); App. Corpus writ Christi ref'd see however, Code; Family we note the ment to 711, Burroughs Lyles, 142 Tex. also Sampson commentary Jack on the of Professor (1944) (holding “this sec to section 13.42 wherein he 1987 amendments guaranteeing per section [article 3] states: designed equality rights prevent sons any (a) provid language to Subsection added person persons being or class of from sin paternity in a child subject for retroactive gled special out for discrimina as Agui existing merely tion”). codifies case law. suit our We base Barker, (Tex.App.— Family on article lar v. 13.42 of the Texas express language 13.42(b) of section pursuant to sections contested, provides paternity that where of the Texas temporary custody orders the care and first Ramon asserts his of error made, may of the child tempo be but no the trial court’s award of fees rary Upon can be awarded. an abuse trial court’s finding paternity, opposed as to final reversed. The discretion and should be judgment, goes say two sections of the Code on which support may be grant trial court based its decision to filing petition. to the date It does follows; Lisa her fees read as upon judgment, not state that final 11.18. Costs prior to can not be awarded (a) any proceeding under this subti- petition. interpret date of To this tle, to, including, but not limited habeas allowing statute as the award of child sup enforcement, corpus, pro- contempt port to the date of birth back would be to ceedings, may award costs. construe the statute in a constitutional attorney’s may light Reasonable charge as is taxed our and as is our instruc costs, paid be ordered legislature. tion from the direct- Shoppers ly attorney, World, Inc., 111; who enforce the 380 S.W.2d at see also order for fees in his City Williams, own name. West Tawakoni v. 11.18(a) (Vernon denied) (holding writ that the dominant rule to be observed construction statute is Conservatorship, Support, 13.42. give effect to legislature). intention of Fees, Payments Interpreting the statute in a constitution- (b) payment In addition to the autho- light, al we hold during pendency code, rized Section 14.05 of this proceeding, upon finding award reasonable paternity, temporary orders sup- for child fees incurred in the suit. *6 port may including be made an award of 13.42(b) (Vernon Tex.Fam.Code support retroactive to the time the Supp.1990). filing of the proceeding including pre- natal and expenses health care holding Ramon relies this Court’s in the mother and child and upon final Reames, Reames v. judgment, the trial court award child writ), Civ.App. no — Dallas support retroactive to the time of birth. proposition made, provision is “[n]o Therefore, point we sustain Lisa’s of error. cause,’ ‘good for allowing absent unsuc party recovery attorney cessful of his
ATTORNEY FEES Reames, fees.” 604 Ra S.W.2d at 337. Ramon, error, in points acknowledges two ar mon that in 1981 legisla the gues that awarding attorney the fees ture amended the Lisa in this case is an phrase abuse the trial deleted the in Code and “as other or, court’s alternatively, against discretion portion civil cases” from final the public policy Billeaud, of the State of Texas. first sentence. Billeaud v. The trial court awarded attorney (Tex.App. fees 652 [1st — Houston 1985); Stotts, Houston parent, required [1st Dist.] Adams v. he can be declared be (Tex.App. temporary S.W.2d 798 bear the burden of
It sweep tempo- should be noted that there is no conflict and come within the of other provision speci rary between this petition- 12.06 that orders. take the father, i.e., presumed fies regard the husband of er at his word his intention “to mother, may forward, pay temporary step willing be ordered to and able to finally until it is determined child.” is, fact, biological Sampson, 1987Legislation whether he in Affecting Family father. Law Legislature: Regular Practice—The 70th Session 87-4, (d), alleged Under p. new Subsection if Reports: or Vol. State Bar Section —> probable seeking father is to have himself Law 1987. in writ), spent visiting or, research- Houston court time was no Dist.] — regarding held termination. as follows: 11.- Since Ann. sec. Q. on the termination? Two-thirds (Vernon 1985) 18(a) require not does I an estimate that A. That be would good family to state fair. believe would be would adjudging against costs cause right. All That’s all MR. CLAUNCH: required is in party successful other have, questions I Your Honor. cases, By 131. de- civil see Tex.R.Civ.P. which leting portion of that a testimony is from the It clear “as in required assessed other costs be by Fuller are for the fees testified to recognized cases,” legislature civil Gary on representation Lisa’s husband cases, family in difficulty deciding, Further, adoption. the matter party which is successful. give a more testimony of Fuller does (citations Billeaud, omit S.W.2d at 655 fees billing as what are particularized ted). despite this dele Ramon claims that representation of Lisa and to his allocable par apply the “successful tion courts still representa- to his is allocable what determining should ty” analysis in who be Gary. did abuse its The trial court attorney family in law case. fees to Lisa awarding in fees discretion Markantonis, Tropoli See to her attor- allocable properly which are Dist.] [1st Consequent- Gary. ney’s representation — Houston writ); Billeaud, 697 error. point first ly, we sustain Ramon’s he 655. Ramon asserts that was awarded two, con of error requested he and is there all of the relief attorney fees to awarding of tends that the that, party because fore the successful voluntary paternity suit vio Lisa in this party, the trial court he the successful of Texas public policy of the State lates the awarding its in Lisa at abused discretion coming discourages fathers from it because recognized in torney fees. As Bil- was assuming responsibility forth and leaud, always easy so to determine it not Certainly, of the child. care also who the successful is. always voluntary paternity suit is filing a obtaining a child successful in her claim Ra against party’s pecuniary interests. restricting Ra award and orders however, suggests, argument mon’s Mallory. Applying mon’s visitation with punitive attorney fees the award review, standard of the abuse discretion clearly provides that Section nature. abused say we cannot that the trial court situations, family law Lisa her its discretion *7 as costs. fees. 1986). (Vernon awarding of However, Kevin R. we note that punitive is based not on a as costs fees husband, Fuller, attorney for Lisa her and interests” rather on a “best but rationale Gary, testified at trial as follows: Tropoli, S.W.2d at 565. See rationale. would, therefore, testify five I that Here, found that the award the trial court would my services thousand dollars for in the best attorney of fees to Lisa was necessary fee for the abe reasonable and Mallory. interest” of The “best interests my of benefit clients. in is this state within of the children added.) (Emphasis On cross-examination v. of this state. See Drexel public policy Fuller testified: McCutcheon, (Tex.Civ. 604 S.W.2d writ)
Q. devot- portion (holding of time was that an What that App. — Waco adop- ed to and attorney to suit terminate fees for services ren of award tion, matters opposed par as to other of the custodial the instance dered at change issue? defending an action for ent allowed, though even that, custody fairly, one- imagine A. I would unsuccessful, though and even sup- defense spent of the time was on third that such an award violated issues, it was claimed of the port-related and two-thirds public policy). permits Ramon’s second which a court to consider whether error is overruled. is unconstitutional when its con statute challenged ap never stitutionality only is portion that We REVERSE the trial plies unconstitutionality the statute’s grant judgment court’s which failed to Lisa apparent.” and Section is “obvious 13.42 child to the retroactive date unambiguous clear in its intent. The Mallory’s birth and RENDER JUDGMENT cites majority opinion Shoppers State $9,930.16 that Lisa be awarded for child World, Inc., 16, 1986, May from to March 1964), for proposition 1989. That of the trial court’s given must not be the one of two reason judgment which awards fees interpretations able which it properly Lisa will render which were allocable to her attorney’s I representation Gary majori unconstitutional. submit that the is RE- VERSED, ty opinion gives REMAND this we cause a tortured the trial court for determination of the section 13.42 of the Texas proper amount of fees. (Vernon Supp. 13.42 Tex.Fam.Code Ann. respects, judgment other the trial court’s guiding statutory rule of inter affirmed. pretation legislature’s is to ascertain the World, Shoppers intent. SMITH, J., concurs and dissents with legislature 110. The has unequivocally ex opinion. pressed its intent to child support award only filing back the date of the SMITH, Justice, EARL W. Retired petition and not before. concurring dissenting. argues trial court erred I agree majority opinion that the concluding as a matter of law that section judgment trial court’s which awards attor- 13.42(a)of prevents the Texas ney properly Lisa which are alloca- lump sum amount for ble her representation Gary However, retroactive to is error. I sustain would Mallory’s birth. Section 13.42 the Texas of the trial court’s Family Code grant which failed to reads follows: support to Mallory’s the date of birth. Conservatorship, Support, Fees, Payments majority goes great The' lengths (a) In a suit which a determination misconstrue a statute on an issue which is paternity sought, not before During argument us. oral provide managing possessory for the attorney candidly Lisa’s admitted that no conservatorship and ac- constitutional issue was in a point raised child; except no alleged cess error. The record does not indicate that denying paternity may be re- expressly constitutional issue was quired any sup- presented payment to make to the trial court and Lisa’s at- torney port has until is estab- briefed this issue for our consideration. Opposing finding paternity, counsel lished. On a was not given even the opportunity to address the arguments upon majority and, which the suit bases time *8 opinion. appellate its An may proper showing, may court not order a to party errors assigned equitable review that have not pay been an prenat- of by party point or a of error. Prudential al and related health care Inc., Ins. Franclen, Co. America v. J.B. expenses the mother and child. 568, (Tex.1986). 710 S.W.2d 569 (b) In addition to payment the autho- code, rized Section 14.05 of this the opinion The majority attempts to address may court award the pretext constitutional issue under the fees incurred in the suit. statutory interpretation. The rule in Lillie, 501, Lovejoy (Tex. v. (c) 569 S.W.2d 503 A payment ordered under Subsec- Civ.App. Tyler n.r.e.), (b) writ ref’d tion of this section is enforceable 838 87-4, lj , p. State Subchapter Chapter B Vol.
provided Regular in Session— Family Reports: Law 1987. Bar Section this code. 14.05(a) argues that under section Lisa also (d) provisions All the Section parents either or may order both applicable are to an 11.11 this code sup- for the lump payments to sum make alleged probable petitioning or eighteen port of he or she is the child until paternity adjudi- a child to have his years age, and therefore the paternity plead- or in cated who admits pay- lump sum may also award retroactive ings with the court. filed the date of the support ments of child (Vernon Supp. 13.42 Tex.Fam.Code Ann. argues that when sec- child’s birth. (footnote omitted) 1990) (emphasis added). 13.42(a) conjunction in with is read emphasized language added The 14.05(a), award of sections 13.09 and an the 1987 amendments support retroactive to the date child Prior to 1987 the case law Texas allowed However, the Mallory birth of allowed. support the of child award legislature considered this issue and has Aquilar to the date of the child’s birth. v. I read section struck a different balance. Barker, (Tex.App.— 699 917 S.W.2d legislatively overruled the to have writ); Houston no Adams [1st Dist.] Aguilar cases. holdings in the and Adams Stotts, (Tex. v. 799-800 language The clear of section writ). argues App. states that the “court 13.42 that the 1987 amendments filing of the of the to the time change Texas did not of the pay and order a suit ... law, rather, existing affirmed case but post- prenatal of all equitable commentary of Lisa refers us to the it. expenses health care natal related Sampson on Jack Professor and child.” This section does mother 13.42 wherein he amendments to section prior authorize child states: paternity The 1987 amendments suit. (a) language The added to Subsection precise issues address the section 13.42 support in providing for retroactive child Aguilar. appar- raised Adams existing merely suit codifies amending legislature ent concern of Barker, 699 Aguilar caselaw. v. existing that under case section 13.42 was 1985); [1st Dist.] — Houston alleged not voluntar- father would law Stotts, Adams responsibili- ily come forth and take on App. — Dallas if ty supporting his child he knew that con- It should be noted there is no large subjecting to a himself award he was provision flict between this support. The concern of retroactive father, i.e., specifies presumed be legislature is also that the father mother, may or- be the husband present his child in able support un- pay temporary dered to being burdened in the future rather than is, he finally til it is determined whether legislature past with debt. Whether fact, biological father. encouraging means of chosen the best has alleged (d), Under new Subsection if the up responsibilities to their to own fathers probable seeking have or father is chil- support of their provide he can parent, himself declared to abe questioned, may be but dren tempo- required to bear the burden to section 13.42 have author- amendments rary and come within against Lisa’s this matter itatively resolved sweep temporary of other orders. I Lisa’s sole position. would overrule petitioner his word take of error. regard step for- to his “to intention ward, willing able
child.”
Sampson, Legislation Fam- Affecting
ily Legislature: 70th Law Practice —The