In the Interest of A.L.J.

467 suрporting submission evidence testimony part of the timely object to Dr. Walker’s finding. Maillard, jury of breach and the issue Marling v. any See waives error. telephone records themselves 735, Clearly the (Tex.App. 739 826 S.W.2d — Houston interpretation of them are 1992, and Dr. Walker’s [14th Dist.] court did not The trial to this issue. relevant light of admitting Conclusion the evidence. err necessary. analysis finding, is not a harm light most favorable When viewed nonmovant, thаt circumstan- we find point of error three. We overrule in this record has sufficient tial evidence trial court. judgment of the We affirm the that probative support force to an inference According- agreement. Felker breached the correctly

ly, we hold that the trial jury,

submitted the issue breach jury’s finding. uphold

and we and two. points

We overrule of error one

ADMISSIBLE EVIDENCE three, appellants contend A.L.J., In the Interest a/k/a admitting telephone trial court erred rec- A.L.E., a child. testimony regarding ords and those reсords they because were neither material nor rele- No. 12-95-00038-CV. vant. Texas, Appeals Court

Standard of Review Tyler. The admission and exclusion of evidence is within the sound discretion of the May 1996. Alvarado, City trial court. Brownsville For 2,1996. Rehearing Oct. Overruled admission or exclusion evidence to consti error, appellant tute an must show reversible

(1) error, trial court committed

(2) reasonably that the error was calculated probably

to cause and did cause rendition Maris, improper ‍‌‌‌​​‌​​‌​‌‌‌​​‌​‌​​‌​​‌‌​​​​​‌​‌​​‌​​​‌‌​‌​‌​​​‍judgment. McCraw v. (Tex.1992); Marcuz v.

Marcuz, (Tex.App.— writ); Dist.] Houston [1st

R.App.P. 81(b)(1).

Telephone Records evidence is defined rule

Relevant of the Texas Rules Civil Evidence any tendency having

“evidence to make the any consequence fact

existence of prob action the determination more probable would

able less than it be with

out the evidence.” Tex.R.Civ.Evid. 401. telephone

find that the records the testi

mony interpreting them meet this definition. telephone calls be-

We have held Butler, together with

tween Felker and distributors,

telephone among calls are Jacksonville, Childs, appel- for B.

Daniel ^an^- Guy, Day, Christopher Steven R.

Robert Jacksonville, appellee, HADDEN, Justice. an order of dismiss

This is an from paternity. al in a suit Melinda to establish Dillingham (“Dillingham”)1, mother Sue child, A.L.J., seeking to brought suit (“Hicks”) establish that Ross Kendall child. Hicks biological father of the was the summary judg responded motion for with a alia, inter asserting, a plea ment and in bar judicata. res defense of He affirmative ease, previous ‍‌‌‌​​‌​​‌​‌‌‌​​‌​‌​​‌​​‌‌​​​​​‌​‌​​‌​​​‌‌​‌​‌​​​‍claimed Rob (“Jacobs”), already Lynn bie Jacobs adjudicated been A.L.J., therefore, and her suit barred. 16, 1994, hearing After a on November plea court in bar granted and the summary judgment, motion for dismissed Dilling- prejudice, suit with and ordered nothing. Dillingham and take A.L.J. af assigns points of error. will fifteen firm. Dismissal,”

In its the trial court “Order of “findings” аnd then stated that made several Summary Judgment and Hicks’ “Motion in Bar taken and should be Plea are well things court all GRANTED.” The then: ORDERED, DE- ADJUDGED AND present suit is dismissed CREED respondent, in all ROSS things as to the HICKS, hereby en- and specifying that further tered his favor Petitioner, DILLING- MELINDA SUE HAM, nothing. shall each take [A.L.J.] prejudice This with suit is dismissed rights of MELINDA SUE DILLINGHAM any part same or to refile [A.L.J.] and/or against HICKS.... thereof ROSS first address the unusual willWe judicata Res case. procedural posture is an under affirmative defense Tex.R. P. Civ. bar, plea a treated as should be case. Walk which merits reaches the (Tex. 442, 446 er v. Sharpe, prior passages proceed- Dillingham quoted 1. from is also referred to as "Melinda Sue in certain ings. Edwards" and “Melinda Sue Edwards Jacobs" error, pleaA App. Corpus her first Christi — at may dismissing in bar a contends that be sustained erred agree her suit because preliminary hearing parties decree unless finding makes no procedure summary judgment or a as to the “father” of the child, Walker, against procedure is at because the decree Jacobs utilized. S.W.2d Co., 447; Kelley Dillingham argues was taken Creek 158 Tex. default. Oil Bluff parent that Jacobs was the child, A.L.J., proper procedure sustaining adjudication of res was not an judicata take-nothing is to under the statute that was A.L.J.’s judg render Jacobs Wаlker, that man ment in favor of a father. She maintains defendant. Here, parent being can summary judg at 447 n. 2. be the of a child without utilized, procedure judgment biological ment was and father. was that rendered the suit be dismissed with Family Section 13.44 the Texas Code2 prejudice Dillingham and that and A.L.J. provides, pertinent part, in that: Therefore, nothing. plea take in Hicks’ bar (a) chapter ... a suit under this with re- court, by was considered the spect judgment child if final to a is barred and we will as a motion for review the case by competent court of has been rendered Walker, summary judgment. See jurisdiction:

S.W.2d at 447. (1) adjudicating a named individual to summary judgment child;

The evidence includes biological be the the copy a certified of the birth certificate of (now 13.44(a)(1) § sec- Tex. Fam.Code Ann. A.L.J., a copy marriage certified of the li- 160.007(a)(1)). tion Jaсobs, Dillingham cense and an affidavit judgment Whether a default divorce Hicks, by by and Dillingham. an affidavit adjudicates adequately case the issue of bio Exhibits in bar attached the include by logical the fatherhood was addressed Tex copies pleadings true and correct and Greene, Supreme Dreyer in v. Court 90-2-111, styled: in decree file Cause No. Dreyer, In the issue “In Marriage the Matter of the of Melinda substantially аddressed was similar the Lynn Sue ‍‌‌‌​​‌​​‌​‌‌‌​​‌​‌​​‌​​‌‌​​​​​‌​‌​​‌​​​‌‌​‌​‌​​​‍Edwards Jacobs and Robbie Ja- present finding case: whether a issue cobs, A.L.J., and in the Interest of a Minor.” in a divorce that the husband and wife decree judicial The trial court took notice parents are of certain children bars later pleadings and court in that decision case. by that action the children to establish some ease, In previous Dillingham The trial one else is thеir father. barred, that “par- averred she and Jacobs were that suit was held Furthermore, by court of seeking ents” of A.L.J. in was affirmed ter- this decision Supreme parent-child relationship, appeals mination of Court. See the Texas Dillingham alleged upholding In Dreyer, that Jacobs was the “fa- 871 S.W.2d at 698. decree, decision, that Supreme reasoned ther” A.L.J. the divorce Court duly implausible trial court found that was “it that the court would have Jacobs cited is refer, by (parents) to failing appear. single and made default The chosen this word explanation, qualification court recited in its that it had without or to both decree heard evidence, allega- biological relationship [the wife] and found that between the material petitioner’s relationship pleadings tions in- and some other were true and the children Id.; cluding also Es allegations Dillingham involving see [the husband].” (Tex. 722, 724 “parents pree Guillory, Jacobs were A.L.J.” The writ) (a “parent-child App. Dist.] court also ordered that the [1st re- — Houston in a divorce lationship by trial court between Jacobs and A.L.J. be ter- of fact mar- born to the judgment minated.” that a child was however, herein, will be Family extensively reorga- 2. The Texas Code to the Code was references suit, by Legislature рrovisions effect at the time of nized and recodified the Texas 20, 1995, R.S., cor- April Leg, parenthetical to the current 1995. See Act of 74th references with responding provisions. ch. 1995 Tex. Sess. Law Serv. 113. All Code (now 11.10(a) section finding Tex. Fam.Code parties equivalent to a riage of the 107.001(a)(3)). child). husband is the father of the Dreyer, ignore we cannot the context As case found court in the finding in of the trial court’s the divorce ade- of A.L.J. would be the interests Dillingham alleged that decree. Jacobs mother, Dilling- quately represented court stated that it the father A.L.J. The ham, Dilling- of A.L.J. and that the interests had heard and found these evidence adverse, and that was no not there were true, Dillingham allegations were and that guardian for the appoint ad litem need parents of A.L.J. It and Jacobs were the child, The court’s ac- benеfit A.L.J. parent-child rela- further ordered allowing Dillingham represent tions in tionship between Jacobs and A.L.J. be termi- challenged not on direct child were argues that nated. nevertheless proceedings and will not be from the divorce specifically such a default did not Point of error number two addressed here. adjudicate the issue whether the husband is overruled. presumed father is the father. three, Dillingham Attorney She cites the case General of Lavan, (Tex.1992) dismissing Texas v. asserts that the of her suit vio S.W.2d 952 support position. agree process rights of her do child’s under the lates the due Lavan, with these assertions. In Fourteenth Amendment of the United States no order 1, Constitution, prior purported from the section and the child’s due divorce case 1, adjudicate rights paternity the child’s course of law under Article section because the child, sought biological support who later 19 of In of establish the Texas Constitution. paternity, Dillingham was not in original position, named the di- cites In the Interest Therefore, paternity of J.W.T., vorce suit. the 872 S.W.2d 189 We do between agree. ofJ.W.T., child and presumptive the the was not not In In the Interest the father adjudicated Lavan, Supreme of that case. 833 Texas Court addressed the issue See conclude, thеrefore, S.W.2d at 953. had that whether a claimed findings prior standing paternity the court’s to establish his where the the divorce case adjudication statutory deprived doing him so. constitute that was scheme Jacobs question standing the father of A.L.J. Point of error No exists here. Under law, statutory parent is a of a child has number one overruled. Texas standing paternity. to establish Tex. Fam. point two, In Dilling- of error number 11.03(a) (now § section Code Ann. prior that asserts the in the 102.003(a)). And, paternity was estab since subsequent divorce is not a bar to decree prior proceeding, we divorce lished guardian action because no ad li- rights of A.L.J. were presume must that the therein, and, appointed tem was for the child adjudicated by represented and adequately therefore, adequately child not rep was Point prior divorce action. her mother in the However, presume resented. we must that is overruled. error three adequately repre the child’s interests were prior four, sented the mother in the divorce Dillingham com- point In of error proceeding since is no indication in there prerequi- all plains that court found that judgment directly record at entry judgment had occurred sites child, protect tacked. To complаins the interest further or had been waived. She 11.10(a) provides that: that there was fourteen Fam.Code error (a) any summary judg- hearing suit in for which termination of a on the motion However, parent-child not indi- relationship sought, does the ment. lacking, nor does appoint guardian prerequisites court ... shall a are ad litem cate what position. represent any authority ... for her the interests of the child she furnish or to сite grounds unless the court finds that to brief error the inter Failure nothing for review. represented any presents child ests will be ade authorities Tex.R.App. 74(f). However, quately by party a in the interest to the suit and are not P. briefly these party. to that address justice, adverse we will copies prior summary- court had before it points. Hicks filed his motion for therefore, We, Dilling- judgment proceedings. attached. hold with documents response to the motion for sum- judicial ham filed court took notice of mary judgment with her affidavit attached. prior proceeding. Points error plea his in bar with exhibits of filed five and thirteen are overruled. attached, proceedings and re- Next, Dillingham complains in quested judicial that the court take notice of through points of error six twelve 30, 1994, proceedings. September On findings trial court in its order are made Setting trial court issued an “Order Findings supported by record. not Hearing” notifying attorneys all of record inappropriate fact and conclusions of law are 13, 1994, it would that on October hold judgment place summary in a and have no summary hearing judg- on motion for Duhaime, proceeding. Fulton v. ment, bar, plea motion for 1975, (Tex.Civ.App. [1st Dist.] paternity testing. The record discloses — Houston n.r.e.). However, writ d it is neces 1994, ref on October the trial court conducted sarily Singleton v. error to make them. hearing signed of Dismiss- the “Order LaCoure, (Tex.App.— hearing, al” 1994. At that on November n.r.e.). attorney writ Dillingham’s opportunity [14th Dist.] to Houston refd argue summary judgment, They may disregarded as harm the motion as be Inc., Having Towing, in bar. Samaniego well examined less. v. El Paso record, prereq- fail we to see wherein “all (Tex.App. Paso — El denied). Nevertheless, uisites” have not occurred. We Dillingham as writ irregularity proceedings see these findings signs to these and contends error Dillingham cites Points of num- none. and, in that there is no evidence the alterna bers four and fourteen are overruled. tive, support them. insufficient evidence However, summary judgment case such thirteen, points of error five and this, simply to as Hicks has the burden show Dillingham alleges that the court did not take genuine that there are no issues material judicial pleadings notice and decree on judgment to a fact and that he is entitled as that, previous file in the suit and if it divorce Property of law. Nixon v. Mr. Man matter did, it in doing erred so. contends that She (Tex. Co., agement 690 S.W.2d 548-49 notice, taking of such without introduc 1985); Swilley Hughes, v. 488 S.W.2d evidence, tion of the documents into denies moving for sum A defendant right object, right to her to confrоnt mary judgment on an affirmative defense evidence, rights process of due of that conclusively prove all elements must under the United States and Constitu Texas Swilley, at 67. con defense. 488 S.W.2d Again, agree. tion. we do not There is no disputed a material sidering whether there is requirement party that a a must offer domes summary judgment, precluding evi fact issue judgment pursuant tic of Evi the Rules is non-movant taken dence favorable judicial in dence order that the court take Poole, 732 ‍‌‌‌​​‌​​‌​‌‌‌​​‌​‌​​‌​​‌‌​​​​​‌​‌​​‌​​​‌‌​‌​‌​​​‍El v. be true. Chico Langdale notice of the document. v. Villam (Tex.1987). Every inference reasonable il, (Tex.App . —Houston non-movants and indulged is in favor of the Furthermore, [14th Dist.] no favor. Nix any doubts are resolved their may judicial court of a take notice document on, Accordingly, we hold at 549. not, requested whether see Tex.R. Civ. by court are “findings” the trial thаt these may any take notice at 201(c), Evid. in this sum place inappropriate and have proceedings. stage of the See Tex.R. Civ. However, it was 201(f). mary judgment proceeding. requested the court Evid. them. to make for the not error prior proceedings judicial notice of the take Therefore, disregard them here bar, we hearing in his and at on the stan the above case under and address the summary judg plea in bar and motion for summary judgment eases. for dard of review during hearing The court noted ment. through are over twelve judicial Points of error six and in its order that it had taken proceedings. hearing, At that notice ruled. points that, Dillingham’s although several of

Finally, point of error number briefed, it was not fifteen, trial were not Dillingham asserts error paternity action to believe dismissing the for court erred in unreasonable cross- Hicks’ previous final decree could be reversed. because parent-child relationship be terminated the is overruled. child, A.L.J., Appar and Jacobs.

tween the court committed Concluding argues ently, Dillingham that the termination error, things in all affirmed. this is case relationship a child between parent-child judicial presumed and a father who has been HOLCOMB, Justice, dissenting. opens ly biological fаther declared the majority I respectfully I dissent. view the man to declared the door another be depriving a having opinion as the effect reject reasoning. biological this father. We year of her constitutional old child twelve Family simply provides that a man The Code process right under the Tex- substantive due presumed biological of a be the father biological parent to have her marriage Constitution during if born child the child is adjudicated pursuant to biological man and the mother. Tex. Ann. Fam.Code 13.44(a)(1) 12.02(a)(1) (now (Supp.1993). § § section Fam.Code 151.002(a)(1)). Such is the case here. The Dreyer majority mainly upon relies during marriage child was born of Dill- (Tex.1993)3 Greene, to reach 871 S.W.2d 697 Jacobs, therefore, ingham and was Jacobs. standing to that a child has no the conclusion presumed biological be the father again address the issue where Moreover, adjudicated child. the court Ja en- previous default divorce decree been biological previ cobs to be the father presumed tered in which the case, barring ous thus the suit children, holding named the father of the 13.44(a)(1) child. See Tex. Fam.Code Ann. implied adjudication that this was an (now 160.007(a)(1)). section The termination father, therefore he is also the relationship parent between the two as being re-litigated. The barring that issue and child does not ad disestablish the Dreyer ma- present from as the case differs judication It is fatherhood. due jority Dreyer did not address the prior adjudication which closes the door to arising un- process questions constitutional Dreyer, A.L.J. 871 S.W.2d at 698. Point of 19 of the Texas Consti- der A'ticle Section error number fifteen ‍‌‌‌​​‌​​‌​‌‌‌​​‌​‌​​‌​​‌‌​​​​​‌​‌​​‌​​​‌‌​‌​‌​​​‍is overruled. preserved in the trial thеy tution as were not present they In are ade- cross-point, one court. In case seeks damages preserved. to Additional- quately recover as sanctions because he and case, a termi- alleges Dillingham’s appeal ly, present there was is frivolous. in the presumed rights of the assessing penalty appeal, parental In for a frivolous nation guardian ad li- appointing a Apрellant we must determine that had no without grounds judg majority finds no error reasonable to believe that the tem. The and child’s finding that the mother’s ment below would be reversed and that the courts faith, making it unneces- appeal'was good rights not taken in but for were not conflict I dis- delay only. sary guardian ad litem. Newspapers, appoint v. Texco to Stewart Inc., 175, deprive (Tex.App agree would 177 because the termination . —Hous 1987, support, possible there ton do not child of future [1st Dist.] mother Dillingham’s between the appeal believe that rises to this was an inherent conflict necessitating proceeding arguing appeal, in this level frivolousness. and the child attorney ad litem who Dillingham attempted distinguish of an appointment to this case as to majority explored evidence Dreyer from decision' in would at leаst have case, marked- controlling facts are adopted reasoning paternity. and The some Dreyer Moreover, Dreyer. three-justice ly than those in Dilling- dissent. different subject of the suit plausible twins were raised other constitutional which We, therefore, in an adulterous re- procedural points. possibly conceived conclude were justices Gammage the dissent. 3. Three dissented. Justice wrote adequately not case The child’s interests were marriage. In this lationship during the child should not be represented and the showed the summary judgment evidence it could be by judgment insofar as bound with moth- had relations Appellee sexual adjudicate paternity. The Su- construed to marriage to the child er may that it suggested has be father, preme Court being approxi- with her presumed subject per se reversal Apрellee mately pregnant. months does six adjudicate rights a minor’s attack to a direct deny with the mother not sexual relations sepa- proper have conception minor does not during possible but when the the time of representation. Missouri-Kansas-Tex- incapable being rate that he was states 1, Pluto, 156 S.W.2d medically I as RR. v. corrected. father which has been (1941). with a I this dissent further Gammage’s end agree adopt Justice here Dreyer. It Gammage quote from Justice reasoning pointed out in his on this issue disingenuous court to singularly for this specifically “[i]s Dreyer v. dissent Greene legislature meant declare here when he states: parentage “adjudicated” minors’ have these (Tex. of the statute The literal terms proceeding in perfunctory default 13.44) require do not Fam.Code representation.” they separate which merely which that a divorce decree default marriage” reasons, respectfully children are “of the recites the I dissent. For these ‘adjudicating biologi be deemed as ” simply litigation is no cal father.’ There biological paternity in such a Indeed, appeals court of has

decree. one

already written that the effect of such is to

recital default divorce decree parties place,

leave in as between the divorce, presumption that the child GARDNER, Hilary Appellant, during marriage born is that of the litigate paternity.

husband and does v. Espiricueta Vargas, 820 S.W.2d INTERNATIONAL, BEST WESTERN denied); (Tex.App. writ cit — Austin INC., Appellee. general approval Attorney ed with No. 06-96-00009-CV. Lavan, Texas v. General of 952, 955 Texas, Appeals Court and further: Texarkana. provision of law The due course under July 1996. Submitted protection provides the Texas Constitution Aug. 1996. Decided purported biological fathers certain paterni- seeking to assert their claims Sept. 1996. Rehearing Overruled J.W.T., ty.” In the Interest It to me that the seems necessarily would have children themselves law, right, course of

the same under due against paternity claims of

assert their father, if

their actual even their

mother, decree, has a default divorce construction of

claimed otherwise. The con-

the statute which avoids serious problem

stitutional is that the nominal rec- marriage” in

itations of “to the the default not, children, as to

divorce decree do “adjudication

constitute uncontestable under section 13.44.

Case Details

Case Name: In the Interest of A.L.J.

Court Name: Court of Appeals of Texas

Date Published: Oct 2, 1996

Citation: 929 S.W.2d 467

Docket Number: 12-95-00038-CV

Court Abbreviation: Tex. App.