Saunders v. Saunders , 1983 Tex. App. LEXIS 4245 ( 1983 )

PAUL PRESSLER, Justice.

Appellant appeals an order requiring him to pay child support under the Uniform Reciprocal Enforcement of Support Act (U.R.E.S.A.) Tex.Fam.Code Ann. § 21.01 et seq. (Vernon 1975).

Appellant and appellee were married in 1977. They became separated in 1981 when appellee moved from Houston to Pennsylvania. Appellant remained in Houston. On March 11,1981, appellee gave birth to a son. In August, 1981 appellee filed a U.R.E.S.A. action in the court of Common pleas of Washington County, Pennsylvania, seeking $300.00 a month support for this child from appellant. This sworn petition set forth appellee’s marital status, dependent children, financial condition and the name, address and description of the appellant. A hearing was held in Pennsylvania and that court certified to the Harris County District Attorney’s Office that appellee’s petition set forth facts “from which it may be determined that the defendant owes a duty of support to [his] wife and one child.” Copies of the petition were transmitted to the Harris County District Attorney’s Office pursuant to Tex.Fam.Code Ann. § 21.36 (Vernon Supp.1982-1983). On December 14, 1981, a show cause hearing was held in the 246th District Court of Harris County. Appellee was not present, but was represented by the District Attorney’s Office. The trial court allowed appellee’s sworn petition into evidence. Appellant was called as an adverse witness and testified to essentially the same facts as contained in the petition. The trial court ordered appellant to pay child support of $120.00 per month.

Appellant brings five points of error. In his first point, appellant contends the trial court erred in accepting into evidence “the Commonwealth of Pennsylvania’s certification and petition” alleging that it is hearsay, inadmissable in district court and, therefore, violative of Tex.Fam.Code Ann. § 21.36(a) (Vernon Supp.1982-1983). Appellant further asserts that Section (a) of section 21.36 is in fatal conflict with Section (b).

The function of the certificate of the court of the initiating state is to establish that such court, upon examination of the plaintiff’s petition, has found such probable duty of support as to warrant transmittal of the petition and certificate to the court of the responding state. The court of the responding state then holds a hearing, after proper notice or service of process upon the defendant, to determine whether a duty of support actually exists. Schlang v. Schlang, 415 S.W.2d 28 (Tex.Civ.App.—Houston 1967, writ ref’d n.r.e.). The petition and certification serve merely to establish a prima facie case. Tex.Fam.Code Ann. § 21.36(b) (Vernon Supp.1982-1983). Such may be rebutted by the defendant.

In this case, appellant was called as an adverse witness and testified to essentially the same facts that were alleged in the plaintiff’s petition. The trial court relied on this testimony in rendering its decision. The record does not reflect that the trial court rendered its decision based on the statements made in appellee’s petition. The question of whether those facts, as stated in the petition, were hearsay and should not have been admitted is, therefore, not before us. Furthermore, we find no conflict between sections (a) and (b) of section 21.36.

Section (a) provides that “in any hearing under this chapter, the court shall be bound by the same rules of evidence that bind the District Court.” Section (b) states that:

In any suit brought under this chapter, if the initiating court certifies that the petition sets forth facts from which it may be determined that the defendant owes a duty of support and that a court of the responding state may obtain jurisdiction over the defendant or his property, the certified petition shall be admitted in the responding state as prima facie evidence that the defendant’s duty to support exists.

Tex.Fam.Code Ann. § 21.36(b) (Vernon Supp.1982-1983). Texas law provides that:

Any written instrument which is permitted or required by law to be made, filed, kept or recorded ... by an officer or clerk of the United States or of another state or nation or of any governmental subdivision of any of the foregoing, or by his deputy or employee; or by any Notary Public of a foreign country in a protocol or similar book in the performance of the functions of his office, shall, so far as relevant, be admitted in the courts of this state as evidence of the matter stated therein, ....

Tex.Rev.Civ.Stat.Ann. art. 3731a, § 2. Article 3731a § 2 operates as an exception to the hearsay rule and permits the introduction into evidence of official public records or certified copies of such records. However, such records must still meet the traditional requirements of relevance, competence and materiality. Lister v. Employers Reinsurance Corporation, 590 S.W.2d 803 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r.e.). Section 21.36(b), supra, outlines the requisites necessary for a petition to be evidence which is relevant, competent, and materially sufficient to establish a prima facie case in a U.R.E.S.A. action. Such section is, therefore, not in conflict with Section 21.36(a) or the rules of evidence that bind the district court. The Pennsylvania certificate and petition meet the requirements of both Section 21.36(a) & (b) and of Article 3731a § 2. Such documents were, therefore, properly admitted. Appellant’s first point of error is overruled.

In his second point, appellant contends that Tex.Fam.Code Ann. § 21.36 is unconstitutional because it violates the Fifth Amendment to the United States Constitution. Appellant argues that the combination of the trial court’s refusal to allow him to testify as to non-access and its acceptance of the “out of court testimony of appellee” deprived him of his property without due process of law. We disagree.

Initially, we note that due process, as it applies to the states, is a right granted by the Fourteenth Amendment, not the Fifth Amendment. The certification and petition which were admitted served merely to establish a prima facie case which could have been rebutted by appellant at the U.R.E. S.A. hearing. Appellant’s testimony failed to rebut the prima facie case established by the petition. When appellant attempted to testify concerning paternity the following dialogue transpired.

Q. Did your wife desert you?

A. Yes.

Q. Is the child yours?

MR. HAMMOND: I would object to that, your honor.

THE COURT: Sustained.

Q. (by Mr. Ward) did your wife leave you prior to the time the child was born?

A. Yes.

Q. What was the date approximately that she left you?

MR. HAMMOND: I would object to that, your honor, on the materiality to this hearing.

THE COURT: Sustained.

Although appellant was asked if the child was his, he was not allowed to answer and did not make a bill of exceptions to show what his answer would have been. Without such we cannot speculate as to whether his testimony would have raised the defense of non-paternity. Appellant’s second point of error is overruled.

In his third point, appellant contends his Sixth Amendment rights were violated because he was not allowed to confront the witnesses against him. The right of a person to confront the witnesses against him applies only in a criminal prosecution. A U.R.E.S.A. action is civil in nature. Appellant’s third point of error is, therefore, overruled.

In his fourth and fifth points, appellant contends the trial court erred in not allowing him to present evidence of non-access to his spouse when he attempted to raise the issue of paternity. Additionally, appellant contends that once paternity was raised, the trial court should have continued the case until the appellee was present in the State of Texas.

Texas law provides with respect to a U.R. E.S.A. action that:

If the plaintiff is absent from the responding state and the defendant presents evidence which constitutes a defense, the court shall continue the case for further hearing and the submission of evidence by both parties.

Tex.Fam.Code Ann. § 21.34 (Vernon 1975). Appellant made no bill of exceptions. No evidence was presented to raise the defense of non-access. Under such circumstances the trial court was not obligated to continue the case. Additionally, appellant did not move for a continuance in the trial court. Therefore, nothing is preserved for review. Appellant’s fourth and fifth points of error are overruled.

We affirm the judgment of the trial court.