In the INTEREST OF C.M v. a Child , 479 S.W.3d 352 ( 2015 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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IN THE INTEREST No. 08-13-00146-CV
§
Appeal from the
OF C. M. V., A CHILD §
383rd Judicial District Court
§
of El Paso County, Texas
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(TC# 2011AG4397)
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OPINION
Frances Yepez appeals from a judgment establishing Luis A. Castelo, Jr. as the father of
C.M.V., voiding a prior judgment changing the child’s name, and awarding damages in the
amount of $50,000 to Castelo on his claim for fraud. We reverse and render in part and affirm in
part.
FACTUAL SUMMARY
Yepez and Castelo, who never formally married, lived together from 1996 until 1998 and
have one son, C.M.V., who was born in 1997. Castelo initially denied paternity and his name is
not listed on the child’s birth certificate. Yepez filed a petition for divorce from Castelo on
July 5, 2000, alleging that the parties had entered into a common law relationship around May
1996 and ceased to live together around April 1998. The divorce petition included a suit
affecting the parent child relationship (SAPCR), identifying C.M.V. as a child of the marriage
and Yepez sought managing conservatorship. Castelo, represented by counsel, filed an answer
on April 2, 2001. He denied paternity but sought no affirmative relief. Meanwhile, on
August 30, 2001, while the divorce action was still pending in the 65th District Court, Yepez --
represented by different counsel -- filed a petition in the 383rd District Court to change C.M.V.’s
surname to her maiden name, which we reference herein only as “V.” She did not serve the
petition on Castelo because she feared for her safety after a prior domestic violence incident. 1
The court entered a name-change order on September 28, 2001. Yepez subsequently filed a
motion to dismiss on the grounds that she was “of the opinion that a common law marriage never
existed” and she believed that Castelo was still legally married to his estranged wife. 2 The
divorce action was dismissed in October 2001.
According to Yepez, after the assault hearing in November 2000, Castelo had no contact
with her or their son and she raised C.M.V. alone. Castelo claimed that he tried to find Yepez
and C.M.V. but he did not know where they were. He alleged that Yepez had created an
environment “where [he] could not locate [C.M.V.].” He did not seek counsel, nor did he go to
the police or to the Attorney General to ask for help in establishing his paternity. He did not
even look in a phone book to see whether Yepez was listed. Castelo eventually stopped looking
for Yepez and C.M.V. because he did not know how to find them and did not “analyze [his]
resources” to figure out a way to find them beyond asking mutual friends if they knew where he
could find Yepez. Yepez contradicted Castelo’s assertion that she hid the child from him. From
1999 to 2002, she lived at an address known to Castelo, and after she moved from that residence,
her address was listed in the phone book and on property tax records.
1
Yepez filed a charge of domestic violence against Castelo, for which he was arrested. She attended a hearing on
the assault case in November 2000.
2
The record includes a certified copy of a final judgment entered on March 1, 1993, dissolving the marriage
between Castelo and his prior wife.
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Fast forward ten years. On June 14, 2011, the Texas Attorney General filed a Title IV-D
petition to establish the parent-child relationship and for current and retroactive child support
from Castelo.3 Castelo filed an answer and only after DNA testing did he finally admit paternity.
He alleged as a defense to the request for retroactive child support that Yepez had hidden the
child from him. Castelo also sought a declaratory judgment that he and Yepez had a common
law marriage. Castelo asked the court, after establishing paternity, to confirm the child’s
surname as Castelo and order a name change. Castelo then alleged claims against Yepez for
common law fraud and intentional infliction of emotional distress stemming from her failure to
notify him of C.M.V.’s location and legal status, her interference “with the right for the father to
communicate with his child,” and her failure to inform him of “the probability of his paternity
. . . .”
Following a hearing, the trial court, on February 11, 2013, issued a judgment which:
1. established paternity;
2. found that presentment of the name change petition in cause number 2001CM1629
constituted fraud upon Castelo, the child and the court;
3. found that the judgment entered in cause number 2001CM1629 changing C.M.V.’s
surname was void because Castelo had not been served with citation;
4. confirmed C.M.V.’s surname to be “Castelo;”
5. appointed Yepez and Castelo to be joint managing conservators and ordered Castelo
to pay monthly child support in the amount of $592.00 per month;
6. found the retroactive child support to be $16,972.22 and ordered Castelo to pay
$500.00 per month toward the retroactive child support;
7. ordered Castelo to provide medical insurance for C.M.V.;
8. found certain facts relevant to the determination of whether a common-law marriage
existed, but failed to declare that one existed;
3
See TEX.FAM.CODE ANN. § 231.001-.309 (West 2014).
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9. found that Yepez committed “actual and deliberate fraud” which “resulted in harm to
the child” and resulted in a misrepresentation of the child’s legal status and name for
more than 10 years; and
10. awarded damages to Castelo in the sum of $50,000 and ordered Yepez to pay
Castelo’s attorney’s fees in the sum of $3,200.
The trial court denied all relief not expressly granted in its judgment. Yepez filed a motion for
new trial which was overruled by operation of law.
SETTING ASIDE THE NAME-CHANGE ORDER
In her first two issues, Yepez challenges the trial court’s decision to set aside the 2001
judgment changing C.M.V.’s surname. In Issue One, she complains that the trial court acted
outside of its jurisdiction by setting aside the name-change because it was a valid final order and
Castelo did not file a bill of review to set it aside. In Issue Two, she further maintains that even
had he filed such pleadings, the evidence is legally and factually insufficient to establish that the
name-change was procured by fraud.
The name-change order was signed by a district judge on September 28, 2001. Rule
329b(f) provides:
On expiration of the time within which the trial court has plenary power, a
judgment cannot be set aside by the trial court except by bill of review for
sufficient cause, filed within the time allowed by law; provided that the court may
at any time correct a clerical error in the record of a judgment and render
judgment nunc pro tunc under Rule 316, and may also sign an order declaring a
previous judgment or order to be void because signed after the court’s plenary
power had expired.
TEX.R.CIV.P. 329b(f). When the time for appeal has expired, a bill of review proceeding is the
exclusive means to set aside a judgment. Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985).
A party seeking to challenge a final judgment must utilize the bill of review procedure even in a
case where the judgment is void or voidable. Id. The only exception to the Rule 329b(f)
requirement of a bill of review is a case where the court rendering the judgment had no
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jurisdictional power to do so. See Middleton, 689 S.W.2d at 213. The Supreme Court defined
“jurisdictional power” to mean “jurisdiction over the subject matter, the power to hear and
determine cases of the general class to which the particular one belongs.” Id., quoting Deen v.
Kirk, 508 S.W.2d 70, 72 (Tex. 1974).
Castelo argues that the 383rd District Court lacked jurisdiction to change the child’s
name because the 65th District Court was the court of continuing, exclusive jurisdiction as a
result of the pending divorce action. Yepez filed the name-change petition pursuant to Sections
45.001-.005 of the Texas Family Code. See TEX.FAM.CODE ANN. §§ 45.001-.005 (West 2014).
Section 45.002(a)(4) requires the verified petition to state whether the child is subject to the
continuing, exclusive jurisdiction of a court under Chapter 155. TEX.FAM.CODE ANN.
§ 45.002(a)(4). Section 155.001 of the Family Code provides that: “Except as otherwise
provided by this section, a court acquires continuing, exclusive jurisdiction over the matters
provided for by this title in connection with a child on the rendition of a final order.”
TEX.FAM.CODE ANN. § 155.001(a)(West 2014). The 65th District Court did not enter a final
order and dismissed the divorce action less than two weeks after the name change. Consequently
it never became the court of continuing, exclusive jurisdiction. See TEX.FAM.CODE ANN.
§ 155.001(b)(1)(providing that a voluntary or involuntary dismissal of a suit affecting the parent-
child relationship does not create continuing, exclusive jurisdiction).
There is also a question whether the name-change suit should have been transferred to the
65th District Court4 but it is unnecessary to finally resolve that question because the 383rd
4
Section 103.002(b) of the Family Code provides that on a showing that a suit for dissolution of the marriage of the
child’s parents has been filed in another court, a court in which a SAPCR is pending shall transfer the proceedings to
the court where the dissolution of the marriage is pending. See TEX.FAM.CODE ANN. § 103.002(b)(West 2014). A
name-change petition filed under Chapter 45 of the Family Code is not a SAPCR. See TEX.FAM.CODE ANN.
§ 101.031 (West 2014)(providing that the term “suit” means a suit affecting the parent child relationship);
TEX.FAM.CODE ANN. § 101.032 (West 2014)(defining “suit affecting the parent child relationship”).
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District Court had jurisdictional power, as that phrase is used in Middleton v. Murff, to hear and
determine a petition seeking a name change. See TEX.CONST. art. V, § 8; TEX.GOV’T CODE ANN.
§ 24.007 (West Supp. 2014). Thus, the exception in Rule 329b(f) does not apply and Castelo
was required to attack the name change by means of a bill of review. Castelo did not file a bill of
review and his pleadings filed in the instant case did not ask the trial court to set aside the name
change. In fact, his pleadings do not refer to the 2001 judgment at all. His petition merely asked
the trial court to “confirm” that C.M.V.’s surname is Castelo and to change C.M.V.’s last name if
necessary. Consequently, we conclude that the trial court lacked jurisdiction to set aside the
name-change judgment.5 We sustain Issue One. Because we have sustained the first issue, it is
unnecessary to address Issue Two.
CHANGING THE CHILD’S SURNAME
In Issue Three, Yepez challenges the legal and factual sufficiency of the evidence
supporting the trial court’s implied finding that changing C.M.V.’s surname is in his best
interest.
Standard of Review and Relevant Law
A trial court’s ruling on a request to change the name of a child is reviewed for an abuse
of discretion. In re H.S.B., 401 S.W.3d 77, 81 (Tex.App.--Houston [14th Dist.] 2011, no pet.); In
re Guthrie, 45 S.W.3d 719, 723 (Tex.App.--Dallas 2001, pet. denied). A trial court abuses its
discretion by ruling (1) arbitrarily, unreasonably, or without regard to guiding legal principles, or
(2) without supporting evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).
In this context, challenges to the legal and factual sufficiency of the evidence are not independent
5
Yepez has filed a post-submission letter advising that C.M.V. has turned eighteen and attained majority.
Consequently, she argues that this point is now moot. We disagree because if the order stands, C.M.V. must expend
time and money to change his name as an adult.
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grounds of error but are instead relevant factors in assessing whether the trial court abused its
discretion. In re T.M.P., 417 S.W.3d 557, 562 (Tex.App.--El Paso 2013, no pet.).
To determine whether the trial court has abused its discretion, we engage in a two-
pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise its
discretion; and (2) whether the trial court erred in its application of discretion. In re T.M.P., 417
S.W.3d at 562. The operative inquiry in the first question is the sufficiency of the evidence. Id.;
In re A.B.P., 291 S.W.3d 91, 95 (Tex.App.--Dallas 2009, no pet.). We must then decide
whether, based on the elicited evidence, the trial court made a reasonable decision. In re T.M.P.,
417 S.W.3d at 562.
A father does not have a constitutional right to have his children bear his last name.
Newman v. King, 433 S.W.2d 420, 424 (Tex. 1968); In the Interest of D.A., 307 S.W.3d 556, 564
(Tex.App.--Dallas 2010, no pet.); In re Guthrie, 45 S.W.3d 719, 723 (Tex.App.--Dallas 2001,
pet. denied); Concha v. Concha, 808 S.W.2d 230, 232 (Tex.App.--El Paso 1991, no writ). The
Texas Family Code permits a court to change the name of a child if the change is in the child’s
best interest. TEX.FAM.CODE ANN. § 45.004(a)(1)(West 2014). Additionally, in a case where
the court has adjudicated parentage, a court may, on request of a party and for good cause shown,
change the child’s name. TEX.FAM.CODE ANN. § 160.636(e)(West 2014). The Dallas and Fort
Worth Courts of Appeals have held that “good cause” and “best interest” are distinct concepts
and a parent seeking to change a child’s name under Section 160.636(e) must establish both. In
re S.M.V., 287 S.W.3d 435, 445 (Tex.App.--Dallas 2009, no pet.); In re M.C.F., 121 S.W.3d 891,
894-95 (Tex.App.--Fort Worth 2003, no pet.). The Fourteenth Court of Appeals observed in a
recent case that the best interest of a child will necessarily be considered good cause for
changing a child’s name. In re H.S.B., 401 S.W.3d 77, 81 n.2 (Tex.App.--Houston [14th Dist.]
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2011, no pet.). Consequently, it restricted its analysis to best interest and presumed that the trial
court found good cause on the same ground. In re H.S.B., 401 S.W.3d at 81 n.2.
In his amended answer and counterclaim, Castelo asked the trial court to change
C.M.V.’s surname after establishing paternity, but he did not specify a statutory basis for his
request. We construe his pleadings as a request to change the child’s name under Section
160.636(e). We agree with the Dallas and Fort Worth courts that a party making a name change
request under Section 160.636(e) must establish both “best interest” and “good cause.” We will
examine the “best interest” issue first.
The burden was on Castelo to establish that changing C.M.V.’s surname is in the child’s
best interest. See In re H.S.B., 401 S.W.3d at 83-84. The Fourteenth Court of Appeals in H.S.B.
set forth six non-exclusive factors which it viewed as relevant in the majority of cases:
(1) the name that would best avoid anxiety, embarrassment, inconvenience,
confusion, or disruption for the child, which may include consideration of
parental misconduct and the degree of community respect (or disrespect)
associated with the name;
(2) the name that would best help the child’s associational identity within a
family unit, which may include whether a change in name would positively or
negatively affect the bond between the child and either parent or the parents’
families;
(3) assurances by the parent whose surname the child will bear that the parent
will not change his or her surname at a later time;
(4) the length of time the child has used one surname and the level of identity the
child has with the surname;
(5) the child’s preference, along with the age and maturity of the child; and
(6) whether either parent is motivated by concerns other than the child’s best
interest--for example, an attempt to alienate the child from the other parent.
In re H.S.B., 401 S.W.3d at 84.
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The child’s name was changed to C.M.V. when he was four years of age and the trial
court ordered his name changed to C.M.C. a few weeks before the boy’s sixteenth birthday.
Castelo had no contact with C.M.V. at the time of the name change in 2001 or for the next ten
years. Castelo did not present any evidence that his surname would best help C.M.V.’s
associational identity with the Castelo family unit or the level of identity C.M.V. has with the
Castelo surname. Further, he did not present any evidence regarding C.M.V.’s preference even
though C.M.V. was almost sixteen years of age. The record does not contain any evidence from
which it could be inferred that changing C.M.V.’s surname to Castelo was actually in the child’s
best interest. While Castelo testified that he wanted his son’s name changed back to “Castelo,”
we must keep in mind that what Castelo wants for his son is secondary to what is in his son’s
best interest. See In re H.S.B., 401 S.W.3d at 83; In re S.M.V., 287 S.W.3d at 449. We conclude
that the evidence is legally insufficient to show that the name change is in C.M.V.’s best interest.
It is therefore unnecessary to address whether the evidence is legally sufficient to show that good
cause existed to support the name change. Likewise, we need not address the factual sufficiency
arguments raised by Yepez. Because the trial court did not have legally sufficient evidence of
best interest, we conclude it abused its discretion by changing C.M.V.’s surname. We sustain
Issue Three.
COMMON LAW MARRIAGE
Issues Four and Five pertain to the portion of the judgment which purports to declare that
a common law marriage existed between the couple. In Issue Four, Yepez argues that the
declaratory judgment is erroneous because it does not conform to the pleadings. She further
contends that the judgment renders an impermissible advisory opinion because it does not
address all of the elements of a common law marriage and does not actually declare whether a
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common law marriage exists. In Issue Five, Yepez challenges the legal and factual sufficiency
of the evidence supporting the implied declaration that a common law marriage exists. We will
address the legal sufficiency of the evidence first.
An informal or common-law marriage exists in Texas if the parties (1) agree to be
married, (2) live together in Texas as husband and wife after the agreement, and (3) represent to
others that they are married. See TEX.FAM.CODE ANN. § 2.401(a)(West 2006); Russell v.
Russell, 865 S.W.2d 929, 932 (Tex. 1993); Burden v. Burden, 420 S.W.3d 305, 308 (Tex.App.--
Texarkana 2013, no pet.). An informal marriage does not exist until the concurrence of all three
elements. Burden, 420 S.W.3d at 308; Eris v. Phares, 39 S.W.3d 708, 714 (Tex.App.--Houston
[1st Dist.] 2001, pet. denied).
The trial court found that: (1) the parties “have at times admitted and contended that they
were parties to a common law marriage alleged to have begun as early as 1996 with the parties
continuing to reside together as late as 2000;” (2) Yepez filed a petition for divorce on July 5,
2000 in which she alleged the existence of a common law marriage; (3) Yepez filed a sworn
petition to change C.M.V.’s name but did not serve Castelo; (4) Yepez filed a motion to dismiss
the divorce action and included a self-serving statement that she believed Castelo was still
married; and (5) Castelo’s marriage to his former wife was dissolved in 1993. These findings are
pertinent to the second and third elements, but the court did not find that the parties agreed to be
married or that all three elements existed at the same time.
To establish that the parties agreed to be husband and wife, it must be shown that they
intended to create an immediate and permanent marriage relationship, not merely a temporary
cohabitation that may be ended by either party. Burden, 420 S.W.3d at 308; Eris, 39 S.W.3d at
714. An agreement to be married cannot be inferred from the mere evidence of cohabitation and
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representations of marriage to others, but such evidence may be circumstantial evidence of an
agreement to be married. Russell, 865 S.W.2d at 933. The circumstances of each case must be
determined from the facts of that case. Id. Yepez testified that she believed she could not be
married to Castelo because she understood that he was still married to another woman. While
Castelo introduced evidence at trial showing his prior marriage had been dissolved in 1993,
Yepez was unaware of that fact at the time of their cohabitation. When asked whether he told
Yepez that he was divorced, Castelo testified, “I believe I did, yes.” On cross-examination, he
admitted he did not remember what he had told Yepez. Castelo testified that they lived together
from 1996 to 1998 and they agreed to be married. When asked on cross-examination to explain
why he had indicated on his tax returns that he was single, Castelo engaged in the following
exchange with Yepez’s counsel:
[Counsel]: Mr. Castelo, have you been filing as a single person your tax returns
for the last three years that you just tendered to the Court?
[Castelo]: I believe so, yes.
[Counsel]: Why are you filing single if you’re married?
[Castelo]: Because I’m not with Ms. Yepez and I’m by myself right now. That’s
the reason.
[Counsel]: Okay. That’s not asking whether or not you live in your own house,
right? The IRS is asking for your marital status, correct?
[Castelo]: On the form it states that, yes.
[Counsel]: And you’ve indicated that your marital status is single, right?
[Castelo]: Right now I’m by myself, yes.
[Counsel]: So how can you come to this Court and contend that you’re engaged
in a common law marriage to my client and still file single with the IRS?
[Castelo]: It was in regards to the issue with [C.M.V.] and the time period
together.
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[Counsel]: Okay. So you’re only married as it pertains to [C.M.V.], but you’re
not married as it pertains to tax filings, right?
[Castelo]: No, what I’m saying is that when we were together, I looked at us as a
family unit and we were both a mother and father to [C.M.V.] at that time.
This testimony demonstrates that Castelo believed a common law marriage revolved solely
around cohabitation. He also apparently thought that since they were no longer living together,
he was, once again, “single.” To establish that the parties agreed to be husband and wife,
Castelo was required to show that they intended to create an immediate and permanent marital
relationship, not merely a temporary cohabitation that may be ended by either party. Burden,
420 S.W.3d at 308; Eris, 39 S.W.3d at 714. There is no evidence from which it can be inferred
that both Yepez and Castelo agreed to be married as opposed to a temporary cohabitation.
Further, there is no evidence that they lived together after they agreed to be married. We also
emphasize that if a proceeding in which a common law marriage is to be proved is not
commenced before the second anniversary of the date on which the parties separated and ceased
living together, it is rebuttably presumed that the parties did not enter into an agreement to be
married. The parties separated in April 1998. Yepez filed for divorce in July 2000. While she
alleged a common law marriage, the two-year window had already closed. She dismissed the
lawsuit and Castelo sought no affirmative relief. Ten years later, he faced the same burden of
rebutting the presumption that there was no agreement to be married. Having found the evidence
legally insufficient to establish the existence of a common law marriage, we need not address the
factual sufficiency of the evidence or Issue Four. Issue Five is sustained.
FRAUD
Issues Six and Seven pertain to the portion of the judgment awarding damages to Castelo
on his fraud claim. In Issue Six, Yepez asserts that the judgment on the tort claims should be
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vacated because Castelo lacks standing to pursue those claims because he failed to disclose the
claims on his bankruptcy schedules. In Issue Seven, Yepez challenges the legal and factual
sufficiency of the evidence supporting the portion of the judgment finding that she committed
fraud. We begin by addressing Issue Seven.
The elements of fraud are: (1) a material misrepresentation was made; (2) the
representation was false; (3) when the representation was made, the speaker knew it was false or
made the statement recklessly without any knowledge of the truth; (4) the speaker made the
representation with the intent that the other party should act on it; (5) the party acted in reliance
on the representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, 52
S.W.3d 749, 758 (Tex. 2001); Formosa Plastics Corporation USA v. Presidio Engineers &
Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). Fraud by nondisclosure is a subcategory of
fraud because, where a party has a duty to disclose, the non-disclosure may be as misleading as a
positive misrepresentation of facts. Schlumberger Technology Corp. v. Swanson, 959 S.W.2d
171, 181 (Tex. 1997). The elements of fraud by nondisclosure are (1) the defendant failed to
disclose facts to the plaintiff, (2) the defendant had a duty to disclose those facts, (3) the facts
were material, (4) the defendant knew the plaintiff was ignorant of the facts and the plaintiff did
not have an equal opportunity to discover the facts, (5) the defendant was deliberately silent
when it had a duty to speak, (6) by failing to disclose the facts, the defendant intended to induce
the plaintiff to take some action or refrain from acting, (7) the plaintiff relied on the defendant’s
nondisclosure, and (8) the plaintiff was injured as a result of acting without that knowledge.
Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex.App.--Houston
[14th Dist.] 2010, no pet.).
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Castelo’s counter-petition included multiple theories of fraud. The trial court’s judgment
included findings indicating the court addressed only the fourth theory, but it did not make
written findings of fact and conclusions of law. Consequently, we must address any theories
which might support the judgment.
First, Castelo alleged that Yepez committed fraud by disappearing with C.M.V., but there
is no evidence that Yepez made a material misrepresentation which Yepez knew was false, that
Yepez intended Castelo to act on the misrepresentation, that Castelo in fact acted in reliance on
the misrepresentation, or that he was injured as a result. Consequently, the evidence is legally
insufficient to support a finding of fraud under the first theory.
Each of Castelo’s remaining three theories pertains to Yepez’s alleged failure to provide
him with information. Silence can amount to false representation when an actor has a duty to
speak and yet remains silent. Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001). In his second
theory, Castelo asserted that Yepez failed to notify him of C.M.V.’s location and legal status and
interfered with his right to communicate with his child by hiding C.M.V. from him. His petition
cited Sections 2.501,6 105.006, 105.007,7 151.001,8 and 153.0769 of the Texas Family Code in
support of his assertion that Yepez had a duty to provide him with information about his son,
6
TEX.FAM.CODE ANN. § 2.501 (West 2006)(providing that each spouse has the duty to support the other spouse).
7
Section 105.006 specifies the contents of a final order and requires a final order to contain each party’s current
residence, among other things, and requires the court to order each party to inform each other party, the court, and
the state case registry of an intended change of the information required by this section. See TEX.FAM.CODE ANN.
§ 105.006 (West 2014). Under Section 105.007, a party must comply with an order requiring notice of change of
information by giving written notice to each other party of an intended change in the party’s current residence
address. See TEX.FAM.CODE ANN. § 105.007 (West 2014).
8
Section 151.001 of the Family Code sets forth the rights and duties of a parent of a child. See TEX.FAM.CODE
ANN. § 151.001 (West 2014). Subsection (a) provides that a parent has the right to have physical possession, to
direct the moral and religious training, and to designate the residence of the child. Id.
9
TEX.FAM.CODE ANN. § 153.076 (West 2014)(requiring a court to order that each conservator of a child has a duty
to inform the other conservator of the child in a timely manner of significant information concerning the health,
education, and welfare of the child).
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including the child’s location. At the time these events occurred, Castelo had not admitted
paternity and paternity had not been adjudicated. No court had entered any orders related to
conservatorship of C.M.V. Consequently, Castelo did not have a right to information about
C.M.V. and these statutes did not impose a duty on Yepez to inform him of her residence.
In his third theory, Castelo alleged that Yepez failed to inform him of “the probability of
his paternity . . . .” He relies on the same statutes mentioned in the discussion of his second
theory. None of these statutes imposed a duty on Yepez to inform Castelo that he was likely the
father of C.M.V.
In his fourth and final theory of fraud by nondisclosure which was raised during the
hearing, Castelo alleged that Yepez did not notify him that she had filed a petition seeking to
change C.M.V.’s name or that the court had entered a judgment changing the name. Yepez
conceded that she did not notify Castelo of her petition to change their child’s surname or of the
judgment changing his surname, but there is no evidence that Castelo relied on her nondisclosure
or that he was injured as a result of acting without that knowledge. Castelo testified that being
without his son negatively affected him, but this injury is completely unrelated to Yepez’s failure
to serve him with the petition to change C.M.V.’s surname. Indeed there is no evidence that
Castelo even knew of the name change until the Attorney General launched this litigation.
For all of these reasons, we conclude that the evidence is legally insufficient to prove that
Yepez committed fraud or fraud by nondisclosure. It is unnecessary to address the factual
sufficiency of the evidence. Further, we need not address Yepez’s argument raised in Issue Six
that Castelo lacked standing to pursue his tort claims because he did not disclose the claims on
his bankruptcy schedules. Issue Seven is sustained.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
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In Issue Eight, Yepez argues that the evidence is legally and factually insufficient to
support a finding in favor of Castelo on his intentional infliction of emotional distress claim.
The heading for the section of the judgment addressing Castelo’s tort claims lists both fraud and
intentional infliction of emotional distress, but the text of the judgment refers only to the fraud
claim. The judgment also includes a clause denying all relief not expressly granted. We
conclude that the judgment denied relief on Castelo’s intentional infliction of emotional distress
claim. Consequently, it is not necessary to address Issue Eight.
CONCLUSION
We pause here to address the concerns expressed by Castelo’s counsel during oral
argument. He emphasized the plight of a man who is not a parent, an adjudicated father, or a
presumed father. The Family Code defines parenthood thusly:
‘Parent’ means the mother, a man presumed to be the father, a man legally
determined to be the father, a man who has been adjudicated to be the father by a
court of competent jurisdiction, a man who has acknowledged his paternity under
applicable law, or an adoptive mother or father.
TEX.FAM.C ODE ANN. § 101.024(a). A “presumed father” is a man who, by operation of law
under Section 160.204, is recognized as the father of the child until that status is rebutted or
confirmed in a judicial proceeding. TEX.FAM.C ODE ANN. § 160.102(13). An “acknowledged
father” is a man who has established a father-child relationship under Chapter 160.
TEX.FAM.C ODE ANN. § 101.0010. An “adjudicated father” is a man who has been adjudicated
by a court to be the father of a child. TEX.FAM.C ODE ANN. § 160.102(1). Castelo was none of
the above. Legally speaking, he was a bystander.
It is certainly true that absent legal intervention, a man in Castelo’s position has no
parental rights. The mother has no obligation to inform him of her whereabouts or the
whereabouts of his child. But that does not mean Castelo lacked remedies. When the divorce
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suit was pending, Yepez alleged that Castelo was the father of the child.10 Castelo denied it
when he could have taken the opportunity at that very point to establish his paternity and gain
rights of conservatorship. Despite having counsel to advise him, Castelo skipped his chance. He
continued to deny his paternity until DNA testing confirmed it in the present litigation. His
“judicial spotlight” claims of tortious conduct by Yepez were brought as an affirmative defense
to retroactive child support. While retroactive support was ordered, Castelo’s finger-pointing
toward a woman who owed him no obligation of disclosure allowed him to recover more in
monetary damages than the child support he was ordered to pay.
Having sustained Issue One, we reverse that portion of the trial court’s judgment setting
aside the name-change judgment entered in Cause Number 2001CM6129 and render judgment
denying Castelo’s motion to confirm or change the child’s surname. Having sustained Issue
Three, we reverse that portion of the judgment ordering C.M.V.’s surname changed to Castelo
and we render judgment confirming that his surname is “V.” Having sustained Issue Five, we
reverse the declaratory judgment and render judgment that a common law marriage does not
exist between Yepez and Castelo. Having sustained Issue Seven, we reverse the portion of the
judgment finding in favor of Castelo on his fraud claim and awarding him damages in the
amount of $50,000, and we render judgment that he take-nothing on the fraud claim. The
judgment of the trial court is otherwise affirmed.
May 13, 2015
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rodriguez, J., and Barajas, C.J. (Senior Judge)
Barajas, C.J. (Senior Judge)(Sitting by Assignment)
10
An “Alleged father” means a man who alleges himself to be, or is alleged to be, the genetic father or a possible
genetic father of a child, but whose paternity has not been determined. T EX.FAM.CODE ANN. § 101.0015.
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