Jennifer Marie Treto v. Sandra Lilibeth Ortega Treto ( 2020 )

NUMBER 13-18-00219-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JENNIFER MARIE TRETO, Appellant,
v.
SANDRA LILIBETH ORTEGA TRETO, Appellee.
On appeal from the 138th District Court
of Cameron County, Texas.
OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Opinion by Justice Benavides
Appellant Jennifer Marie Treto appeals from a final divorce decree from appellee
Sandra Lilibeth Ortega Treto that established Jennifer as a parental conservator and
ordered her to pay child support. By a single issue, Jennifer argues that the trial court
erred by so ruling when she has no biological relationship to the child. We affirm.
I. BACKGROUND
Jennifer and Sandra were married in New Mexico in August 2014, after about a
year of dating. They were divorced on October 16, 2017, in an uncontested proceeding
after Jennifer signed a waiver of service. Jennifer filed a motion for new trial. After the trial
court granted the motion for new trial, a contested hearing was held in March 2018 from
which this appeal is taken.
Both Jennifer and Sandra testified at trial, as did Cesar Gomez. At the time Jennifer
and Sandra were married, Jennifer had a one-year-old child unrelated to their
relationship. Before they married, they discussed having a child together. Sandra was
very interested in having a child, according to Jennifer’s testimony. At first, they discussed
Sandra continuing to be sexually active with her former boyfriend to get pregnant. After
they married, Gomez, one of their friends, volunteered to donate sperm to help them.
They met with Gomez and reached an oral agreement that he would be a sperm donor.
They agreed to pay Gomez $200 for each sperm donation.
Sandra and Jennifer agreed that Sandra would carry the child. They bought an
ovulation kit and began tracking Sandra’s menstruation and ovulation. Sandra also began
taking prenatal vitamins. In October 2014, they contacted Gomez and asked him to come
to their apartment for a sperm donation because Sandra was ovulating. He used their
bathroom and ejaculated into a sterile cup the women provided. Gomez gave the cup to
Jennifer who injected the sperm to inseminate Sandra. Two weeks later, Jennifer bought
home pregnancy tests and Sandra got a positive test result.
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During Sandra’s pregnancy, Jennifer accompanied her to nearly all of her doctor
visits and went to both sonogram appointments. Friends held a baby shower for the two
of them in May 2015. Jennifer was at the hospital when the baby was born by cesarean
section. Both women took family leave from work to be home with the baby in July 2015.
In January 2016, Jennifer moved out and Sandra later filed for divorce.
II. PARENTAL RIGHTS
Jennifer argues that the Texas Family Code defines “parents” in terms of a mother
and a father and those definitions preclude the trial court’s ruling declaring her a parent
conservator and ordering child support. See TEX. FAM. CODE ANN. §§ 101.024,
102.003(a)(9) (limiting standing for nonparents to seek conservatorship when they have
had actual care and control of a child). On the other hand, Sandra argues that the Texas
Family Code must be read in accord with the United States’ Supreme Court’s recognition
of same-sex marriage in Obergefell v. Hodges, ___ U.S. ___, 135 S. Ct. 2584, 2607–08
(2015), and its recognition that a host of other benefits are attached to marital status that
may not be denied to same sex couples. See Pavan v. Smith, ___ U.S. ___, 137 S. Ct.
2075, 2078–79 (2017) (holding that an Arkansas statute that treated children of same-
sex married couples differently than married heterosexual couples was unconstitutional).
A. Standard of Review
We review a trial court’s orders arising out of divorce proceedings, child custody,
child support, and visitation for an abuse of discretion. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex.
2011); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.—Corpus Christi–
Edinburg 1990, writ denied). A trial court abuses its discretion when it acts arbitrarily or
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unreasonably, without reference to guiding rules or principles. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court also abuses its
discretion by failing to analyze or apply the law correctly. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992).
When Texas law conflicts with federal constitutional rights as set forth by the
United States Supreme Court, the constitutional rights as declared become the law of the
land. See Avery v. Midland County, 390 U.S. 474, 485–86 (1968) (declaring that
apportionment of Midland County Commissioners’ districts violated the equal protection
clause); McKinney v. Blankenship, 282 S.W.2d 691, 695 (Tex. 1955) (recognizing the
overruling of Texas constitutional and statutory provisions by Brown v. Board of Education
of Topeka, 347 U.S. 483 (1954)).
B. Texas Statutory Law Relating to Children of a Marriage
By her single issue, Jennifer argues that the trial judge erred as a matter of law by
ruling that she is a parent and ordering her to pay child support for the child born by
Sandra during their marriage. To understand Jennifer’s argument, we must first review
the Texas Family Code.
Under the family code, a “parent” is defined to be: “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. CODE ANN. § 101.024(a). A suit affecting the parent-child relationship may be filed
at any time by: a parent of the child, a custodian or person having the right of visitation
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with or access to the child appointed by an order of a court; a child’s guardian; a man
alleging himself to be the child’s father in accord with Chapter 160; a person who has had
actual care, control and possession of the child for at least six months ending not longer
than ninety days before suit was filed; and other persons specified in § 102.003. See id.
§ 102.003.
In 2000, the Texas Legislature adopted the Uniform Parentage Act (UPA). See Act
of May 25, 2001, 77th Leg., R.S., ch. 821, § 1.01, 2001 Tex. Gen. Laws 1610. Chapter
160 of the family code defines parentage. See TEX. FAM. CODE ANN. ch. 160. Under the
family code, the mother-child relationship is established between a woman and child by:
giving birth, adjudication of maternity, or adoption. See id. § 160.201(a). The father-child
relationship is established between a man and a child by: an unrebutted presumption of
paternity pursuant to § 160.204; an effective acknowledgement of paternity; an
adjudication of paternity; adoption; or the man’s consent to assisted reproduction by his
wife under Subchapter H that resulted in the birth of the child. Id. §§ 160.201(b), 160.703.
A man is presumed to be the father of a child if he is married to the mother of the child
and the child is born during the marriage. See id. § 160.204(a)(1). Section 160.106 also
provides that “[t]he provisions of this chapter relating to the determination of paternity
apply to a determination of maternity.” Id. § 160.106.
C. Analysis
Jennifer’s argument that she is not a parent of the child is two-pronged: (1) she is
not related to the child biologically, and (2) the family code does not recognize her as a
parent. However, Jennifer ignores the portions of the family code that do not require a
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biological relationship to qualify as a parent, and specifically § 160.106 which provides
that maternity may be established in the same way as paternity under the family code.
See TEX. FAM. CODE ANN. §§ 101.024(a), 160.106, 160.204.
Jennifer cites In re P.S. which stands for the proposition that self-help artificial
insemination (not performed by a physician) enables the man who donated sperm to be
named as a father to the child produced by insemination. See 505 S.W.3d 106, 110 (Tex.
App.—Fort Worth 2016, no pet.) (construing TEX. FAM. CODE ANN. § 160.102(6)).
However, in this case, that argument is inapposite because the trial court did not find that
Gomez, the sperm donor, was the father and Gomez did not seek to be named the father
unlike M.S., the biological father of P.S. Id. at 110. Here, the issue is whether the same-
sex spouse of a woman who conceived a child using self-help artificial insemination with
the intention of having a child of the marriage is a parent of that child and thereby entitled
to all of the liabilities and benefits of parenthood under the Texas Family Code.1
The facts testified to by both parties reveal that they do not fit within the statutory
definitions which contemplate traditional gender roles and marriage between a man and
a woman. If gender was not an issue, Jennifer would constitute a presumed “father”
because she was married to Sandra at the time Sandra became pregnant and the child
was born of the marriage. See TEX. FAM. CODE ANN. § 160.204(a)(1).
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Jennifer also cites In re H.S. which describes the standing requirement for non-parents to bring
a suit affecting the parent-child relationship. 550 S.W.3d 151, 155–56 (Tex. 2018). In H.S. the suit was
brought by grandparents. Here, there is no dispute that both Jennifer and Sandra had standing in the
underlying divorce proceedings.
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1. Section 160.106
There was a common-law presumption that a child born to a married woman during
marriage was a child of the marriage. See In re Shockley, 123 S.W.3d 642, 648–49 (Tex.
App.—El Paso 2003, no pet.) (discussing history of marital presumption). That
presumption was later codified in Texas law. See TEX. FAM. CODE ANN. § 160.204(a)(1).
Although that presumption was once based upon concerns about illegitimacy and
ensuring inheritance, the presumption also promoted family stability. See In re J.W.T.,
872 S.W.2d 189, 195 (Tex. 1994) (discussing history of marital presumption). Section
160.106 states that: “The provisions of this chapter relating to the determination of
paternity apply to a determination of maternity.” Id. § 160.106.
Other state courts that have adopted the UPA have concluded that the marital
presumption applies to non-gestational mothers in same-sex relationships. See e.g., LC
v. MG, 430 P.3d 400, 409 (Haw. 2018) (holding that wife of a child’s mother was
presumed to be a legal parent of a child born during same-sex marriage pursuant to
marital presumption under the UPA); Partanen v. Gallagher, 59 N.E.3d 1133, 1137 (Mass.
2016); In re Guardianship of Madelyn B., 98 A.3d 494, 499 (N.H. 2014); Frazier v.
Goudschaal, 295 P.3d 542, 547 (Kan. 2013) (holding the Kansas UPA allowed presumed
parent status on same terms as presumed father); Elisa B. v. Superior Court, 117 P.3d
660, 665 (Cal. 2005) (holding that a woman was a presumed mother under the UPA
provision presuming paternity based upon receiving the child into one’s home and holding
out child as one’s own); In re Parental Responsibilities of A.R.L., 318 P.3d 581, 584–85
(Colo. App. 2013) (interpreting the UPA to allow presumed mother under the same
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circumstances as presumed father).
Since the trial court’s rulings here, courts around the country have been addressing
the issues that have arisen after Obergefell. 135 S. Ct. at 2607–08.2 In Pavan, the United
States Supreme Court held that an Arkansas statute that allowed the husband of a
married woman whose child was conceived through assisted reproduction to be named
on the child’s birth certificate was unconstitutional because it excluded the name of the
same-sex spouse when the child was conceived the same way. 137 S. Ct. at 2078; see
McLaughlin v. Jones, 401 P.3d 492, 500 (Ariz. 2017) (recognizing expansion of paternity
presumption was required under Obergefell to same-sex couple for child born during
marriage).
We presume that, by enacting a statute the legislature intended compliance with
the constitutions of this state and the United States. See TEX. GOV’T CODE ANN. § 311.021.
We resolve all doubts in favor of a statute’s constitutionality. Id.; In re Allcat Claims Serv.,
L.P., 356 S.W.3d 455, 468 (Tex. 2011) (orig. proceeding); Ex parte Groves, 571 S.W.2d
888, 893 (Tex. Crim. App. 1978). In 2015, Obergefell decided that prohibition of same-
sex marriage violated the federal constitution’s guarantee of equal protection. 135 S. Ct.
at 2607–08. In 2017, Pavan unequivocally extended Obergefell’s reach to ancillary
benefits of marriage including such important, but mundane things as completing the
names of the parents on the birth certificate of a child. Pavan, 137 S. Ct. at 2078 (citing
2
There is an unpublished Texas case cited by neither party in their briefs, In re A.E., No. 09-16-
00019-CV, 2017 WL 1535101, at *10 (Tex. App.—Beaumont Apr. 27, 2017, pet. denied) (mem. op.),
involving a same-sex married couple in which the Beaumont court rejected the non-gestational spouse’s
claim of maternity. That case was decided before Pavan v. Smith, 137 S. Ct. 2075, 2078 (2017). As a result,
we consider that Pavan has established that our statutes must be read in a gender neutral fashion to comply
with the Fourteenth Amendment and the constitutional guarantee of equal protection. Id.
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135 S.Ct. at 2601). By interpreting § 160.106 and § 160.204(a)(1) together, we interpret
the statute as written by the legislature, giving effect to all of the portions of the statute,
and avoiding an interpretation that violates the equal protection guarantees of the Texas
and federal constitutions. Accordingly, it follows that under Pavan, we are to give effect
to the ancillary benefits of a same–sex marriage, including the determination of maternity
for the non–gestational spouse of a child born to the marriage. See 137 S. Ct. at 2078.
2. Texas Policy
Here, we have a married couple whose situation with respect to determining the
legal parentage of the child of their marriage is solely a result of their same-sex status.
They were legally married, had a child during their marriage as a result of assisted
reproduction, and divorced. Jennifer and Sandra both embraced that child as their own.
Sandra testified that Jennifer was an intended parent and Jennifer testified that she
participated in the child’s insemination, in the events of the pregnancy, the birth, and
taking care of the child once the child was born. Now, Jennifer argues that Texas statutes
allow her to walk away from her marriage without any legal relationship with the child and
without supporting the child of the marriage.
The Texas Supreme Court described the important function of child support in
Williams v. Patton, its impact on the children of Texas, and the resulting Texas policy
regarding enforcement.
The function of child support is to help a custodial parent maintain an
adequate standard of living for the child. When child support payments are
not made, the result is a loss of funds available for the child’s food, clothing,
education, and home environment. It is a strong, long-standing policy of this
state to protect the interests of its children, and this is the policy underlying
the enforcement of child support obligations. Characterizing arrearages as
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nothing more than a “debt” owed to the custodial parent ignores the reality
that the child is frequently the one who has been harmed by nonpayment
and it is the child’s interests which are ultimately sought to be protected.
821 S.W.2d 141, 145 (Tex. 1991).
Presently, Texas enforces child support against all parents through civil orders and
criminal penalties. See TEX. FAM. CODE ANN. § 157.62 (enforcement by contempt); TEX.
PENAL CODE ANN. § 25.05; Harvill v. State, 13 S.W.3d 478, 479 (Tex. App.—Corpus
Christi–Edinburg 2000, no pet.). The former policy that allowed men who fathered children
outside of marriage to escape support of their children was held to violate the equal
protection clause. See Gomez v. Perez, 409 U.S. 535, 538 (1973); Alvarado v. Gonzalez,
552 S.W.2d 539 (Tex. App.—Corpus Christi–Edinburg 1977, no writ) (“The right of an
illegitimate child to obtain support from his or her natural father has been recognized since
the United States Supreme Court decision of Gomez v. Perez.’’). Texas policy changed
to recognize that all children deserved to be supported by their parents.
3. Equal Protection
The Texas and United States Supreme Courts recognized years ago the
importance of family and its protection under our federal constitution, especially the place
of children:
The Court has frequently emphasized the importance of the family. The
rights to conceive and to raise one’s children have been deemed “essential,”
“basic civil rights of man,” and “(r)ights far more precious . . . than property
rights.” “It is cardinal with us that the custody, care and nurture of the child
reside first in the parents, whose primary function and freedom include
preparation for obligations the state can neither supply nor hinder.” The
integrity of the family unit has found protection in the Due Process Clause
of the Fourteenth Amendment, the Equal Protection Clause of the
Fourteenth Amendment, and the Ninth Amendment. (internal citations
omitted.)
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In re G. M., 596 S.W.2d 846 (Tex. 1980) (quoting Stanley v. Illinois, 405 U.S. 645, 651
(1972)).
Stanley involved the unmarried father of children whose mother died. See Stanley,
405 U.S. at 646. Stanley’s right to raise his children was unprotected by Illinois law
because he had not married the children’s mother. Id. Stanley was treated as a stranger
to his children even though he had supported and cared for them. Id. at 647. The United
States Supreme Court held that the Illinois law violated the equal protection clause. Id. at
658. The G.M. case addressed the standard of proof necessary for involuntary
termination of parental rights and recognized the constitutional dimension of such
deprivation. In re G. M., 596 S.W.2d at 847.
More recently, the United States Supreme Court held that marriage between
same-sex partners was guaranteed by the equal protection clause through the Fourteenth
Amendment and that barriers to the full recognition of ancillary rights must be abandoned.
See Pavan, 137 S. Ct. at 2078; Obergefell, 135 S. Ct. at 2608; Strickland v. Day, 239 So. 3d
486, 488 (Miss. 2018) (reversing finding that child conceived through assisted
reproduction during same-sex marriage was not child of non-gestational parent and
remanding for further proceedings); Garter v. Iowa Dep’t of Pub. Health, 830 N.W.2d 335,
352 (Iowa 2013) (holding that refusal of Department of Public Health to identify the spouse
of married same-sex couple as parent of child conceived by assisted reproduction
violated guarantees of equal protection).
The trial court gave effect to the Texas Family Code presumption that a child born
of the marriage is the child of the mother’s spouse pursuant to §§ 160.106 and
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160.204(a)(1). The trial court treated this married couple like any other married couple
who separated after having a child; it divided the community property, entered an order
regarding the rights and responsibilities regarding the child including support, and granted
the divorce requested by both. In doing so, the trial court did not abuse its discretion.
Accordingly, we overrule Jennifer’s sole issue.
III. CONCLUSION
We affirm the trial court’s judgment.
GINA M. BENAVIDES,
Justice
Delivered and filed the
23rd day of January, 2020.
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