in the Interest of E.H.L v. ( 2022 )


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  •                                  In The
    Court of Appeals
    Ninth District of Texas at Beaumont
    __________________
    NO. 09-20-00191-CV
    __________________
    IN THE INTEREST OF E.H.L.V.
    __________________________________________________________________
    On Appeal from the 418th District Court
    Montgomery County, Texas
    Trial Cause No. 19-09-13245-CV
    __________________________________________________________________
    MEMORANDUM OPINION
    In Texas, a person who signs an acknowledgement of paternity may
    challenge the acknowledgement based on fraud, duress, or material
    mistake of fact. 1 That said, for acknowledgments signed before
    September 1, 2011, the law that applies to suits challenging such
    authorizations must be filed within four years of the date the person filed
    the acknowledgment with the Texas Bureau of Vital Statistics. 2 In 2019,
    E.H.L.V.’s father filed a petition to set aside the acknowledgment of
    1SeeTex. Fam. Code Ann. § 160.308(a).
    2SeeAct of May 24, 2005, 79th Leg., R.S., ch. 478, § 1, 
    2005 Tex. Gen. Laws 1337
    , 1337 (amended 2011) (current version at 
    Tex. Fam. Code Ann. § 160.308
    ).
    1
    paternity he signed in 2005. The trial court, however, found the petition
    untimely after finding that E.H.L.V.’s father failed to file it within four
    years of the date the acknowledgment was filed with the Bureau of Vital
    Statistics. E.H.L.V.’s father appealed but has not shown that the trial
    court applied limitations improperly to his claim to rescind the
    authorization, so we affirm the trial court’s order denying his petition
    challenging the acknowledgment he executed fourteen years before he
    filed suit.
    Background
    In 2005, E.H.L.V.’s Mother, Elizabeth, gave birth to E.H.L.V.,
    whom we will call Aiden. 3 After Aiden’s birth, Aiden’s Father, William,
    signed an Acknowledgment of Paternity recognizing that he is Aiden’s
    father. 4 In January 2005, Elizabeth and William filed the form with the
    Texas Bureau of Vital Statistics.
    In September 2019, over fourteen years after signing the
    acknowledgment, William asked the trial court to set aside the
    acknowledgment. In the petition, William the authorization “should be
    3Elizabeth   and Aiden are pseudonyms not the mother’s and child’s
    real names.
    4William is also a pseudonym.
    2
    set aside on the basis of fraud, duress, or material mistake of fact.” Even
    so, William never alleged specifics to explain how the fraud, duress or
    mistake occurred. When Elizabeth answered, she claimed the statute of
    limitations barred William’s petition seeking to rescind the authorization
    that he signed in 2005.
    In August 2020, the trial court called the case for trial. Elizabeth
    neither appeared nor participated in the trial. Only one witness, William,
    was called as a witness in the trial. When the trial ended, the trial court
    denied William’s petition, finding William’s claim seeking to rescind the
    acknowledgment untimely because he filed the petition “more than four
    years after the Acknowledgment of Paternity in this matter was filed[.]”
    By written order, the trial court denied Father’s challenge and denied all
    other relief that William requested.
    After signing the order, William filed a motion for a new trial. In
    the motion, William alleged that before the trial, Elizabeth had signed
    an agreed order to set aside the Acknowledgment of Paternity and that
    by doing so, she waived her statute of limitations defense. William also
    argued the trial court erred in concluding his claim was barred by the
    four-year statute of limitations. The trial court denied William’s motion
    for new trial. William filed a timely notice of appeal.
    3
    Standard of Review
    By statute, trial courts must conduct proceedings challenging
    acknowledgments of paternity, which includes proceedings to adjudicate
    disputes between parties over parentage. 5 An appellate court reviews
    findings of fact in proceedings adjudicating parentage for abuse of
    discretion. 6 The test for abuse of discretion is whether the record shows
    the trial court acted without reference to any guiding rules and
    principles. 7 On appeal, William argues the trial court erred in concluding
    that the changes the Legislature made to the Family Code in 2011 do not
    apply to the Acknowledgment of Paternity that he signed in 2005.
    Under Texas law, an abuse of discretion occurs when a trial court
    “fails to analyze or apply the law correctly.” 8 As to the trial court’s
    resolution of disputed issues of fact, we review the evidence the trial court
    considered in the light that favors the trial court’s decision, and we
    5See  
    Tex. Fam. Code Ann. § 160.309
    (d).
    6See  Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990); Stamper
    v. Knox, 
    254 S.W.3d 537
    , 542 (Tex. App.—Houston [1st Dist.] 2008, no
    pet.).
    7Worford, 801 S.W.2d at 109.
    8Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241 (Tex.
    1985) (citing Walker v. Packer, 
    827 S.W.2d 833
    , 839-40 (Tex. 1992) (orig.
    proceeding)).
    4
    indulge every legal presumption that favors the trial court’s judgment. 9
    We will uphold the trial court’s ruling as long as there is some evidence
    of a substantive and probative character supporting the ruling. 10
    Analysis
    William raises two issues in his appeal. First, he argues that by
    signing an agreed order to set aside the Acknowledgement of Paternity,
    Elizabeth waived her statute of limitations defense. We note that William
    raised that argument for the first time in his motion for new trial. Second,
    William argues the trial court erred in failing to apply the changes the
    Legislature made in 2011 to the Family Code retroactively to the
    Acknowledgment of Paternity that he signed in 2005. According to
    William, the changes the Legislature made gave him the right to file his
    petition to rescind the authorization even though he signed it in 2005 and
    it was filed with the Bureau of Vital Statistics for more than four years
    before he filed suit.
    Turning to William’s claim that Elizabeth waived her statute of
    limitations defense, we note that William never filed pleadings alleging
    9In the Interest of W.J.B., 
    294 S.W.3d 873
    , 878 (Tex. App.—
    Beaumont 2009, no pet.).
    10Id.
    5
    waiver before the trial court conducted the hearing and signed an order
    denying William’s petition to rescind the acknowledgment of paternity. 11
    During the hearing on the petition, the record reveals that William never
    mentioned that Elizabeth had signed an agreed order setting aside the
    acknowledgement of paternity. Moreover, the record does not show that
    William, before the hearing or during the hearing, ever filed pleadings,
    argued, or obtained a ruling on his claim that by signing an agreed order,
    Elizabeth had waived her statute of limitations defense.
    Under Texas law, waiver is an affirmative defense. 12 When seeking
    to raise waiver, a party must plead, prove, and secure findings on the
    defense. 13 William, however, first raised his claim of waiver in his motion
    for new trial. By waiting to raise his affirmative defense until he moved
    for a new trial, William waived his claim that Elizabeth waiver her
    statute of limitations defense and failed to preserve it by trying to raise
    it for the first time in a motion for new trial. 14 We overrule William’s first
    issue.
    11Tex.  R. Civ. P. 94 (requiring that parties plead waiver as an
    avoidance to an affirmative defense).
    12See 
    id.
    13See In re S.A.P., 
    156 S.W.3d 574
    , 576-77 (Tex. 2005).
    14Hamm v. Millennium Income Fund, L.L.C., 
    178 S.W.3d 256
    , 268
    (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
    6
    Turning to William’s second issue, he argues the trial court erred
    by failing to apply the changes the Legislature made in 2011 to section
    160.308 of the Family Code to the authorization he signed in 2005.
    Section 160.308(a), which has been in effect since 2011, provides that
    even after the period for rescission ends, a party who signs an
    acknowledgement of paternity may challenge the acknowledgement
    based on fraud, duress, or material mistake of fact. 15 In 2005, when
    Father signed the acknowledgment, the law provided proceedings
    challenging an acknowledgment “must be commenced before the fourth
    anniversary of the date the acknowledgment . . . is filed with the bureau
    of vital statistics unless the signatory was a minor on the date the
    signatory executed the acknowledgment[.]” 16 When the Legislature
    amended section 160.308 in 2011, it made it clear that as related to
    section 160.308(a), the changes it was making to the law applied “only to
    an acknowledgment or denial of paternity that [became] effective on or
    after    the    effective   date   [Sept.   1,   2011]   of   this   Act.” 17   For
    
    Tex. Fam. Code Ann. § 160.308
    (a).
    15See
    16See 
    2005 Tex. Gen. Laws 1337
    , 1337.
    17See Act of May 27, 2011, 82nd Leg., R.S., ch. 1221, § 11(a), 
    2011 Tex. Gen. Laws 3255
    , 3258 (codified at 
    Tex. Fam. Code Ann. §§ 160.301
     -
    .315) (Voluntary Acknowledgment of Paternity, addressed in Subchapter
    D)).
    7
    acknowledgments signed before the Legislature changed section 160.308
    in 2011, the Legislature made it clear the former law “is continued in
    effect for that purpose.” 18
    On appeal, Father argues the 2011 version of section 160.308
    applies to his petition to rescind the authorization rather than the
    version that existed in 2005. According to William, the Legislature made
    it clear that the changes it made to section 160.308 applied retroactively
    to proceedings challenging affidavits of paternity on grounds of fraud,
    duress, or mistake. To support his argument, William relies on language
    in the statute applicable to proceedings to adjudicate parentage—
    proceedings that are Subchapter G claims filed to adjudicate parentage,
    not Subchapter D claims challenging authorizations of paternity—to
    support his appeal. 19 The enabling language that William relies on and
    that applies to proceedings challenging paternity states:
    The changes in law made by this Act with respect to a
    proceeding to adjudicate parentage apply only to a proceeding
    that is commenced on or after the effective date of this Act. 20
    18Id.
    19Compare    
    2011 Tex. Gen. Laws 3255
    , 3258 (Voluntary
    Acknowledgment of Paternity, addressed in Subchapter D)), with Act of
    May 27, 2011, 82nd Leg., R.S., ch. 1221, § 11(b), 
    2011 Tex. Gen. Laws 3255
    , 3258 (codified at 
    Tex. Fam. Code Ann. §§ 160.601
    -.637) (Proceeding
    to Adjudicate Parentage, addressed in Subchapter G)).
    20See 
    2011 Tex. Gen. Laws 3255
    , 3258.
    8
    William argues the 2011 law applies to this proceeding because he filed
    the proceeding in 2019.
    The trial court, however, interpreted William’s petition claim as a
    petition to rescind the authorization of paternity, not as a petition to
    adjudicate parentage. At William’s request, the trial court provided
    William with findings of fact and law. In them, the trial court made it
    clear that the trial court interpreted William’s petition as a claim to
    rescind the acknowledgment of paternity that he signed; for example, the
    trial court’s findings and conclusion are silent about adjudicating any
    parentage claim. In our opinion, the trial court construed William’s
    petition narrowly, probably too narrowly since William’s petition when
    liberally construed includes a challenge to his paternity. For instance, he
    alleges that no protective orders are in effect as to the parties or the child.
    A statement such as that is required when a party files a petition to
    adjudicate parentage. 21 On top of that, William’s prayer asks that the
    trial court “adjudicate the parentage of the child.” Last, we observe that
    the trial court, in its final order, denied all other relief. Thus, we infer
    21Tex.   Fam. Code. Ann. § 160.6035.
    9
    from the trial court’s broad language that the denial implicitly included
    and denied William’s claim to adjudicate parentage of the child.
    Yet when William appealed, he failed to assign any error and did
    not argue that the trial court misconstrued his petition. In his brief,
    William does not cite the Court to any sections in Subchapter G to argue
    that the trial court improperly construed his claims. The only time
    William used the term parentage in his brief is when he quotes the
    enabling language the Legislature used in 2011 when amending section
    160.308. Plainly stated, William does nothing in his brief explain to the
    Court why the trial court failed to appreciate that his petition included a
    claim asking the trial court to adjudicate parentage and a claim to
    rescind the authorization too.
    It is not the Court’s role to make the arguments that William might
    have raised (and briefed) to support his appeal. The Texas Supreme
    Court   has   repeatedly   cautioned   the   courts   of   appeal   against
    addressing unassigned error. 22 “Except for fundamental error, appellate
    courts are not authorized to consider issues not properly raised by the
    22See, e.g., Pat Baker Co., Inc. v. Wilson, 
    971 S.W.2d 447
    , 450 (Tex.
    1998); Allright, Inc. v. Pearson, 
    735 S.W.2d 240
     (Tex. 1987).
    10
    parties.” 23 We conclude whether the trial court misconstrued William’s
    petition is not a question before us given the issues that William filed and
    briefed in his appeal. 24
    Turning to the argument William makes, he argues that in
    September 2011, the Legislature changed the statute to allow parties to
    ask a trial court to rescind an acknowledgement of paternity for fraud,
    duress, or mistake of fact even if the party who filed the challenge filed
    his petition more than four years the authorization of paternity was filed
    with the Bureau of Vital Statistics. We disagree. As to suits challenging
    acknowledgment of paternity (as distinguished from proceedings under
    Subchapter G to adjudicate parentage) the enabling language of the
    statute provides:
    The changes in the law made by this Act with respect to an
    acknowledgment or denial of paternity apply only to an
    acknowledgment or denial of paternity that become effective
    on or after the effective date of this Act. 25
    So since William signed the acknowledgment at issue in 2005, the change
    the Legislature made in 2011 allowing a party more time to challenge
    23Mack   Trucks, Inc. v. Tamez, 
    206 S.W.3d 572
    , 577 (Tex. 2006)
    (citing In re B.L.D., 
    113 S.W.3d 340
    , 350-52 (Tex. 2003)).
    24See Tex. R. App. P. 38.1(f), (h); 44.1.
    25See 
    2011 Tex. Gen. Laws 3255
    , 3258.
    11
    affidavits of paternity for fraud, duress, and mistake does not apply to
    the claim William filed challenging the authorization he signed in 2005.
    Given the trial court’s narrow construction of William’s petition, a
    construction that William has not challenged in his appeal, we hold the
    trial court did not err in finding Williams claim to rescind the
    authorization barred by limitations. For that reason, William’s second
    issue is overruled.
    Conclusion
    For reasons explained above, the trial court’s Order Denying the
    Petition to Challenge an Acknowledgment of Paternity is
    AFFIRMED.
    _________________________
    HOLLIS HORTON
    Justice
    Submitted on March 2, 2022
    Opinion Delivered June 9, 2022
    Before Golemon, C.J., Kreger and Horton, JJ.
    12
    

Document Info

Docket Number: 09-20-00191-CV

Filed Date: 6/9/2022

Precedential Status: Precedential

Modified Date: 6/10/2022