in the Interest of A.L.H., a Child ( 2020 )

Opinion filed April 9, 2020
In The
Eleventh Court of Appeals
__________
No. 11-19-00003-CV
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IN THE INTEREST OF A.L.H., A CHILD
On Appeal from the County Court at Law
Brown County, Texas
Trial Court Cause No. CV1411455
MEMORANDUM OPINION
This appeal stems from an order affecting the parent–child relationship.1
Appellant, A.S., filed a petition to adjudicate the parentage of A.L.H., who was five
years old at the time of the original petition. The trial court eventually entered an
order adjudicating Appellant—rather than the presumed father, J.R.H., II—as the
biological father of A.L.H. In its order, the trial court named Appellant as a parent
possessory conservator of A.L.H.; named the child’s mother, D.L.K., as a joint
1
We note that the trial court’s order does not involve the termination of parental rights and that two
notices of appeal were originally filed: one by A.S. and one by J.R.H., II. J.R.H., II’s portion of this appeal
was previously dismissed for want of prosecution.
managing conservator; named J.R.H., II as a nonparent joint managing conservator
of A.L.H.; entered judgment in the amount of $16,594.35 against Appellant and in
favor of J.R.H., II for retroactive child support; ordered Appellant to pay more than
$400 per month to J.R.H., II for current child support; and ordered the mother to pay
$200 each month to Appellant as a partial reimbursement of Appellant’s obligation
to pay current child support. On appeal, Appellant presents three issues in which he
complains of the trial court’s rulings regarding conservatorship, retroactive child
support, and current child support. We affirm the order of the trial court.
Background Facts
When the mother became pregnant with A.L.H., she did not know who the
father was. She informed Appellant, who was one of the potential fathers, as soon
as she realized that she might be pregnant. Soon thereafter, the mother married
J.R.H., II. They were married when A.L.H. was born, and they had another daughter
together before divorcing in May 2014. J.R.H., II was the presumptive father of both
children, and he became the adjudicated father at the time of his divorce from the
mother. In their divorce decree, J.R.H., II was named as the managing conservator
with the right to establish the primary residence of both A.L.H. and her sister.
Appellant acknowledged that, based on the timing, he knew—from the
moment that the mother told him of her pregnancy—that he could be the father. In
fact, he went to the hospital to see the mother and A.L.H. on the day that A.L.H. was
born. Appellant, however, did not pursue a paternity suit at that time; he said the
mother told him that he was not the father of the child. However, in late 2013, after
the child had turned four years old, the mother informed Appellant that he might be
A.L.H.’s father. In December 2013, a paternity test revealed that Appellant was the
probable father of A.L.H. Appellant waited until November 2014 to file the
paternity suit. The bench trial did not commence until August 2017. At that time,
the trial court ruled that Appellant was excused from failing to file his paternity suit
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prior to the child’s fourth birthday.2 The bench trial resumed in July 2018; by this
time, A.L.H. was nine years old. During the proceedings below, A.L.H. continued
to reside primarily with her sister and J.R.H., II, who continued to raise A.L.H. as
his daughter. The order affecting the parent–child relationship was signed a few
months after the final hearing. This appeal followed.
Analysis
In his first issue, Appellant argues that the trial court abused its discretion by
appointing Appellant as “a mere possessory conservator.” Nowhere in the record,
however, can we find any request by Appellant asking that the trial court appoint
him as a managing conservator of A.L.H. In his petition, Appellant asked that he be
adjudicated as A.L.H.’s father, that he be awarded costs, and that A.L.H.’s last name
be changed. In a supplemental petition, he asked that the mother be required to pay
a share of child support. In open court, Appellant testified that he would agree to a
“stepped-up” visitation plan and was not even asking for unsupervised visitation at
that point, and Appellant’s attorney indicated that Appellant was not asking to alter
J.R.H., II’s status as a managing conservator but was merely asking the court to
adjudicate Appellant as the biological father and give him “access” to A.L.H.
Because Appellant did not seek to be appointed as a managing conservator, we
cannot hold that the trial court abused its discretion when it failed to appoint
Appellant as a managing conservator. See In re C.A.M.M., 243 S.W.3d 211, 219–
20 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (recognizing that trial court
may not grant such relief in the absence of pleadings). Accordingly, we overrule
Appellant’s first issue.
In his second issue, Appellant asserts that the trial court erred when it awarded
retroactive child support from Appellant to J.R.H., II. Appellant contends that the
2
See TEX. FAM. CODE ANN. § 160.607 (West 2014).
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Family Code does not support an award of retroactive child support under the
circumstances in this case, that the award is manifestly unjust, and that J.R.H., II did
not timely file the counterpetition in which he requested such support.
With respect to the matter of timeliness, the record reflects that J.R.H., II filed
his counterpetition just two days prior to the commencement of the trial in August
2017. After two days of proceedings, the trial court made some rulings with regard
to parentage and then recessed the trial so that a separate hearing on child support
could be conducted after appropriate discovery. The trial resumed in July 2018, at
which time the trial court considered child support. Although the counterpetition
was not timely filed prior to the commencement of trial, see TEX. R. CIV. P. 63, the
trial court’s continuance of the matter for approximately eleven months cured the
untimeliness of the counterpetition. See In re Marriage of Brown, 870 S.W.2d 600,
603 (Tex. App.—Amarillo 1993, writ denied). Under these circumstances, we
cannot hold that the trial court abused its discretion in considering the matters alleged
in the counterpetition.
With respect to the award of retroactive child support, the trial court found
that it was reasonable and was in the child’s best interest for Appellant to pay
retroactive child support dating back to November 2014, the month that Appellant
filed his original petition in this cause. When rendering an order adjudicating
parentage, a trial court “may order retroactive child support as provided by
Chapter 154.” TEX. FAM. CODE ANN. § 160.636(g) (West Supp. 2019). In doing so,
the trial court “shall use the child support guidelines provided by Chapter 154.” Id.
§ 160.636(h). Chapter 154 authorizes a trial court to “order a parent to pay
retroactive child support” if the parent was not previously ordered to pay child
support and was not a party to a suit in which support was ordered. Id. § 154.009(a).
Appellant asserts that the payment of retroactive child support to someone
other than the mother is not contemplated by the Family Code. We disagree. A trial
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court has discretion to order that someone other than the mother or the attorney
general on the mother’s behalf should receive the appropriate child support.
Duran v. Garcia, 224 S.W.3d 309, 314 (Tex. App.—El Paso 2005, no pet.).
Appellant next argues that, even if retroactive child support could be paid to
J.R.H., II, the award “is manifestly unjust under these facts.” Appellant does not
argue that the trial court failed to follow the applicable child support guidelines. See
FAM. §§ 154.121, .131. Instead, he argues that the award was unjust because he
“was repeatedly and falsely assured he was not A.L.H.’s father” and because he had
been denied access to A.L.H. We note that, during the entire period for which
retroactive child support was ordered, Appellant knew that he was the biological
father of A.L.H. based upon the paternity test and had actually filed suit to be
adjudicated as the father. Under these circumstances, we cannot hold that the trial
court’s award of retroactive child support was manifestly unjust. We overrule
Appellant’s second issue.
In his third issue, Appellant asserts that the trial court erred “in merely having
[the mother] reimburse [Appellant] for a portion of the child support obligation.”
Under this issue, Appellant points out that the mother was gainfully employed as a
salesperson and that she has a duty to support her child. Appellant contends that the
mother “should have to shoulder a larger [portion] of the child support burden” than
$200 per month and that the burden should be split more equitably between
Appellant and the mother. By its ruling, the trial court split the current child support
burden between Appellant and the mother almost equally—with Appellant to pay
the standard child support amount and the mother to reimburse Appellant for almost
half of that amount. Appellant has not cited us to any authority that would support
his contention that the mother should have to pay a larger portion of the child
support, and based on the record before us, we cannot hold that the trial court abused
its discretion in this regard. Accordingly, we overrule Appellant’s third issue.
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This Court’s Ruling
We affirm the order of the trial court.
KEITH STRETCHER
JUSTICE
April 9, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.3
Willson, J., not participating.
3
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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