Paternity (Disestablishment & Establishment) Suit Time-Barred

Now who is the Daddy and who is going to pay child support? When there is a presumed father, by virtue of marriage or otherwise, the law does not always follow the genetic facts or even provide an opportunity for the evidence to be considered. In Texas, there is a statute of limitations on assertion of claims that the presumed biological father is not, and strict requirements must be met to take advantage of a loophole for claims to be asserted after the statute has run, as seen in this case:

In Interest of G.T.S. (Tex.App.- Houston [1st Dist.] Oct. 8, 2009) (Jennings)
(paternity proceedings to rebut presumption of paternity and establish other man's paternity barred by
limitations, equitable estoppel theory not properly presented)

EXCERPT FROM THE OPINION BY JUSTICE TERRY JENNINGS

Statute of Limitations

In her sole issue, Gardner argues that the trial court erred in granting summary judgment because her suit to establish Kirby's parentage of G.T.S. is not time-barred.

To obtain summary judgment on the ground that the proceeding to adjudicate the parentage of a child with a presumed father is barred by limitations, the movant must show, as a matter of law, that suit to adjudicate parentage was not commenced before the fourth anniversary of the date of the birth of the child. Tex. Fam. Code Ann. § 160.607(a) (Vernon 2008).

Once the movant establishes as a matter of law that the suit to adjudicate the parentage of a child with a presumed father was not commenced by the child's fourth birthday, the non-movant must then raise a fact issue on the avoidance of limitations. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999) ("If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations"). The Family Code provides an exception to the four-year limitations as follows: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) (emphasis added).

A presumption of paternity exists if a man is married to the mother of the child and the child is born during the marriage. Id. § 160.204(a) (Vernon 2008). This presumption legally establishes the father-child relationship between the man and child. Id. § 160.201(b)(1) (Vernon 2008). Here, it is undisputed that Hawkins is G.T.S.'s presumed father because Gardner and Kirby agree that Hawkins and Gardner were married when G.T.S. was born (8) on March 17, 1992. It is also undisputed that Gardner filed her petition in the underlying proceedings in August 2007, more than ten years after she was required to file her petition under section 160.607(a). Therefore, Kirby established his affirmative defense of limitations as a matter of law.

Gardner was then required to raise a fact issue on the exception defined in section 160.607(b). KPMG Peat Marwick, 988 S.W.2d at 748. Merely pleading the exception is not enough. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979) ("the non-movant must expressly present to the trial court any reasons seeking to avoid movant's entitlement. . . and he must present summary judgment proof when necessary to establish a fact issue"). Thus, Gardner had to produce summary judgment evidence, not merely plead the 160.607(b) exception, to raise a fact issue that she and Hawkins did not live together or engage in sexual intercourse with each other during the probable time of G.T.S.'s conception and that Hawkins never represented to others that the G.T.S. was his own.

Gardner asserts that she established that she and Hawkins "separated on August 20, 1990" and "G.T.S. was born on March 17, 1992, some 19 months after the separation." In her brief, Gardner points to no summary judgment evidence in the record to support her assertion. Gardner did plead that she and Hawkins did not live together during the probable time of G.T.S.'s conception, asserting that on August 20, 1990 she and Hawkins had separated. Although she attached her June 17, 1992 petition for divorce to her summary judgment response, such a pleading is not evidence. Clear Creek Basin Auth., 589 S.W.2d at 678. Moreover, even if August 20, 1990 is the date that Gardner and Hawkins actually ceased living together, Gardner presented no evidence that she and Hawkins did not engage in sexual intercourse during the probable time of G.T.S.'s conception. Although Gardner did produce her own affidavit as summary judgment evidence, she did not testify as to the date on which she and Hawkins separated or that she and Hawkins did not engage in sexual intercourse during the probable time of G.T.S.'s conception. Because there is no evidence in the record to support her assertion regarding subsection (b)(1) of section 160.607 of the Family Code, Gardner has not raised a fact issue precluding summary judgment.

Gardner also asserts that Hawkins never represented to others that G.T.S. is his child. She argues that because the "whereabouts of Wesley [Hawkins] were and still are unknown, the 'holding out' element of subsection (b)(2) is met." However, in her brief, Gardner does not point to any summary judgment evidence regarding Hawkins's representations about G.T.S. In her affidavit attached to her summary judgment response, Gardner testified only that Kirby had represented that G.T.S. is his child. She did not testify about Hawkins at all. Gardner's assertions in her summary judgment response that Hawkins's whereabouts were unknown still do not raise a fact issue as to whether he has ever represented to others that G.T.S. is his child. Because there is no evidence in the record to support her arguments under subsection (b)(2) of section 160.607, Gardner has not raised a fact issue precluding summary judgment. In sum, because Gardner has not raised a fact issue regarding the exception to limitations defined in section 160.607(b), her suit is time-barred under section 160.607(a). KPMG Peat Marwick, 988 S.W.2d at 748. Alternatively, Gardner argues that Kirby is equitably estopped from denying that he is G.T.S.'s father because he has established a relationship with G.T.S. and is G.T.S.'s biological father. In an appeal from a summary judgment, issues to be reviewed by the appellate court must have been actually presented to and considered by the trial court. Tex. R. Civ. P. 166a©. Rule 166a© provides that "[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal." Id. (emphasis added). Here, Gardner did not expressly raise the equitable estoppel issue in her response to Kirby's summary judgment motion. (9) Gardner only attacked the limitations provision of section 106.607(a) via the exception found in section 160.607(b). Consequently, never having presented this issue to the trial court, the question cannot now be urged on appeal as a ground for reversing the summary judgment.

Accordingly, we hold that the trial court did not err in granting summary judgment on the ground that Gardner's suit is barred by limitations.

We overrule Gardner's sole issue.

AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS [with respect to attorney's fees]: Opinion by Justice Jennings
Before Justices Jennings, Higley and Sharp
01-09-00212-CV In the Interest of G. T. S., a child
Appeal from 173rd District Court of Henderson County
Trial Court Judge: Judge Dan Moore