Dreyer Ex Rel. A.D.D. v. Greene , 871 S.W.2d 697 ( 1994 )

OPINION

HECHT, Justice.

Section 13.44(a)(1) of the Texas Family Code provides that a paternity suit “is barred if final judgment has been rendered by a court of competent jurisdiction ... adjudicating a named individual to be the biological father of the child....” The issue we address in this case is whether a finding in a divorce decree that the husband and wife are parents of certain children bars a later action by the children to establish that someone else is their biological father. The trial court held that this paternity suit is barred, and the court of appeals affirmed. 809 S.W.2d 262 (1991). We affirm the judgment of the court of appeals.

In her divorce petition, Kathleen Gresham Dreyer alleged under oath that she and her husband, Thorne Webb Dreyer, were the parents of three children “of this marriage”. Thorne did not answer the petition, and the trial court rendered judgment by default. No guardian ad litem was appointed to represent the children. In the final decree, the trial court found that Kathleen and Thorne were the parents of three children as Kathleen had alleged, appointed Kathleen their managing conservator and Thorne their pos-sessory conservator, and ordered Thorne to pay Kathleen child support. When Thorne defaulted on his support obligation, Kathleen sought to enforce it by a motion for contempt — later resolved in an agreed order that Thorne pay Kathleen $54,000. This order, signed by both parties, contained a finding that the three children named in the divorce decree were born during Kathleen and Thorne’s marriage. Less than two months after the order was signed, Kathleen initiated this proceeding as next friend for two of her children, A.D.D. and A.G.D., twin boys then five years old, to establish that Philip S. Greene, rather than Thorne, is their biological father. Their petition requested that the trial court order blood tests and conduct a hearing. The trial court refused and instead granted Greene’s motion to dismiss the action as barred by section 18.44 of the Family Code.

Kathleen contends that the trial court’s findings do not bar this action by her twin sons. The finding that Thorne was the parent of the children, she argues, is not an adjudication that he is their biological father because a man can be the parent of a child without being the biological father. While this argument is certainly correct, it ignores the context of the trial court’s finding in this case. The court found that Kathleen and Thorne were the “parents” of their children. It is implausible that the court would have chosen this single word to refer, without qualification or explanation, to both the biological relationship between Kathleen and the children and some other relationship involving Thorne. It is even more implausible when the finding was clearly based on Kathleen’s sworn allegation that the children were “of the marriage”. See Espree v. Guillory, 753 S.W.2d 722, 724 (Tex.App.—Houston [1st Dist.] 1988, no writ) (“[a] finding of fact by the trial court in a divorce judgment that a child was born to the marriage of the parties is equivalent to a finding that the husband is the father of the child....”); Walters v. Walters, 565 S.W.2d 586, 587 (Tex.Civ.App.—Austin 1978, no writ); Thompson v. Thompson, 572 S.W.2d 761, 764-765 (Tex.Civ.App.—Tyler 1978, no writ). We conclude that the trial court’s findings constitute an adjudication that Thorne was the biological father of A.D.D. and A.G.D.¹ Since there is no question that the trial court had jurisdiction to make this determination, it operates as a bar under section 13.44 to the present action.²

Kathleen argues that such an application of section 13.44 impermissibly infringes upon her sons’ rights to due process and equal protection of the law under the United States Constitution. However, Kathleen did not make this argument in the trial court. As a rule, a claim, including a constitutional claim, must have been asserted in the trial court in order to be raised on appeal. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (1959); Walker v. Employees Retirement Sys., 753 S.W.2d 796, 798 (Tex.App.—Austin 1988, writ denied). We follow that rule here and thus do not address Kathleen’s constitutional arguments.

The judgment of the court of appeals is

Affirmed.

1 . The dissent attempts to minimize the significance of the trial court’s finding by emphasizing that it was made in a judgment taken against Thorne by default. The dissent fails to deal with the facts that Kathleen swore that Thorne was a parent of her children, that based upon this avowal she obtained a judgment against Thorne for child support, that Thorne paid child support and Kathleen accepted it, that when Thorne defaulted in the payment of his obligations he and Kathleen signed an agreed order requiring him to pay support, and that only after Thorne had difficulty meeting his obligation did Kathleen sue Phillip to establish his paternity of two of her three children.

2 . We express no opinion on whether A.D.D. and A.G.D. could have the finding of Thome’s paternity set aside by bill of review.