in the Interest of K.N.H., a Child ( 2022 )

NUMBER 13-20-00347-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF K.N.H., A CHILD
On appeal from the 309th District Court
of Harris County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Tijerina, and Silva
Memorandum Opinion by Justice Silva
Appellants Jenrri Hernandez Delgado 1 and his wife, Dora Alicia Orellana Castro
appeal the trial court’s final order from a petition to adjudicate parentage and suit affecting
the parent-child relationship (SAPCR). By four issues, which we reorganize, appellants
argue (1) the trial court abused its discretion by ordering genetic testing for parentage
before setting aside Jenrri’s acknowledgment of paternity; (2) the trial court lacked
1 Jenrri’s name is spelled “Jerri,” “Jenrri,” and “Jenri” throughout the record. We utilize the spelling
he provided during trial.
authority and jurisdiction to order them, as non-parents, to pay child support; (3) the
attorney’s fees awarded to appellee Mayra Lisset Delgado were not reasonable and
necessary; and (4) the trial court erred by proceeding to trial without notice to appellee
Christian Alberto Osorto Gutierrez and allowing him to waive his appearance at trial
telephonically. We affirm in part and reverse and remand in part. 2
I. BACKGROUND
The factual and procedural background of this case spans approximately five
years. According to appellants’ brief, K.N.H. 3 was born to Mayra on July 13, 2015. At that
time, Mayra asked her brother, Jenrri, to serve as K.N.H.’s father because the child “did
not have a father.” Jenrri agreed and signed an acknowledgment of paternity, K.N.H.’s
birth certificate, and a verification of birth facts, all listing him as the father. K.N.H.’s birth
certificate, which was admitted as an exhibit at trial, listed Castro as K.N.H.’s mother.
After about six months, appellants and Mayra had a falling out, causing Mayra to move
out of their shared residence without K.N.H.
The record reflects that on August 21, 2016, Mayra filed a petition to adjudicate
parentage, seeking to establish Gutierrez as K.N.H.’s father and herself as K.N.H.’s
mother. Although listed as parties to petition, appellants filed a petition in intervention,
seeking to terminate the parent-child relationship between Mayra any alleged father, and
K.N.H., and to be appointed managing conservators of K.N.H.
2 This case is before this Court on transfer from the Fourteenth Court of Appeals in Houston
pursuant to a docket equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§ 73.001.
3 We refer to the child by her initials in accordance with the rules of appellate procedure. See TEX.
R. APP. P. 9.8(b)(2).
2
A hearing for temporary orders occurred on March 16, 2017. Following the hearing,
the trial court appointed appellants as K.N.H.’s temporary managing conservators and
appellees as temporary possessory conservators. Appellees were provided with
supervised visitation of K.N.H., ordered to pay child support to appellants, and ordered to
“provide evidence of satisfactory drug and alcohol tests prior to [the] final trial.” The trial
court found that “genetic testing results show [Gutierrez] to be the father and [Mayra] to
be the mother of [K.N.H.]” Finally, the trial court adjudicated Gutierrez as K.N.H.’s father
and Mayra as K.N.H.’s mother and ordered “that the parent-child relationship between
the father, [m]other and the child [be] established for all purposes.[4]” The temporary
orders stated the orders “shall continue in force until the signing of the final order or until
further order of this Court.”
A two-day bench trial began on January 30, 2020. At the outset of trial, the parties
noted that Gutierrez was not present, and they were unsure where he was. However, a
woman purporting to be his mother provided the trial court with his phone number. The
trial court called the number on the record, and the person who answered identified
himself as Gutierrez. The trial court asked Gutierrez if he was okay with the trial
proceeding without him, to which he answered affirmatively. Neither party objected to the
trial court calling Gutierrez or asking if he was waiving his appearance.
During trial, Mayra’s trial counsel testified regarding the attorney’s fees sought.
She testified that (1) she had been licensed in Texas for more than five years; (2) Mayra
4 Although an order for genetic testing for Mayra and Gutierrez does not appear in the record, nor
do the results, appellants do not assert that such order and results do not exist. Accordingly, for the
purposes of this appeal, we presume the genetic testing results establish Mayra and Gutierrez as K.N.H.’s
biological parents.
3
was charged $5,000 in attorney’s fees, which she believed to be fair and reasonable; and
(3) her firm “devoted numerous hundreds of hours to this case over the last four years;
including attending mediation, attending trial . . ., responding and submitting discovery,
responding to discovery [sic], [and] numerous pleadings.” Additionally, she admitted the
contract between Mayra and her firm as an exhibit, which indicated the fee was $5,000.
At the conclusion of trial, the trial court entered the following pertinent orders:
1. Mayra was appointed sole managing conservator of K.N.H.; appellants were
appointed possessory conservators;
2. Appellants are to pay $200.00 monthly to Mayra as child support 5; and
3. Appellants are to pay attorney’s fees in the amount of $5,000 to Mayra’s trial
counsel.
The trial court further issued orders for periods of possession of and access to K.N.H. for
Gutierrez and appellants. The trial court also ordered the child’s last name be changed
and ordered her birth certificate be corrected to reflect Mayra and Gutierrez as the mother
and father, respectively. A proposed final order was submitted for the trial court’s
consideration based on the pronounced judgment; however, appellants requested the
final order also include the adjudication of parentage of K.N.H.
After the final order was signed, appellants filed a motion for new trial, asserting
four errors: (1) Gutierrez never received notice of the trial setting; (2) the acknowledgment
of paternity signed by Jenrri was not properly set aside, and thus the trial court could not
adjudicate parentage; (3) the trial court lacked personal jurisdiction to order appellants to
5 The final order did not distinguish whether the amounts were to be paid individually or jointly by
appellants; however, the oral pronouncement specified that appellants were to pay a $200.00 combined
total.
4
pay child support; and (4) the attorney’s fees awarded to Mayra were not reasonable.
Appellants further argued that they “did not agree for [Gutierrez] to appear telephonically.”
The motion for new trial was overruled. 6 This appeal followed.
II. PARENTAGE
By their first issue, appellants assert that the trial court abused its discretion by
ordering a genetic test for Gutierrez before Jenrri’s acknowledgment of paternity had been
set aside.
A. Standard of Review and Applicable Law
Parentage suits, including the trial court’s decision to order genetic testing, are
reviewed for abuse of discretion. In re Rodriguez, 248 S.W.3d 444, 449 (Tex. App.—
Dallas 2008, no pet.) (holding the trial court abused its discretion by ordering genetic
testing after period to challenge presumption of paternity expired); see also In re E.H.,
No. 05-19-01205-CV, 2021 WL 3754568, at *3 (Tex. App.—Dallas Aug. 25, 2021, no pet.)
(mem. op.). “A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to
correctly analyze or apply the law.” In re Rodriguez, 248 S.W.3d at 449 (citing In re
Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding)).
The mother-child relationship may be established between a woman and child by
the woman giving birth to the child, being adjudicated the mother of a child, or adopting
the child. TEX. FAM. CODE ANN. § 160.201(a). The father-child relationship may be
6 Although the trial court conducted a hearing on the motion for new trial and orally pronounced it
was denying the motion, no order granting or denying the motion appears in the clerk’s record provided to
this Court. Therefore, we presume the motion was overruled as a matter of law. See TEX. R. CIV. P. 329b(c).
5
established by an unrebutted presumption of parentage, see id. § 160.204, an effective
acknowledgment of paternity, an adjudication of parentage, or adoption of the child. 7 Id.
§ 160.201(b).
“[A] valid acknowledgment of paternity filed with the vital statistics unit is the
equivalent of an adjudication of the paternity of a child and confers on the acknowledged
father all rights and duties of a parent.” Id. § 160.305(a). After the initial sixty-day recission
period, “a signatory of an acknowledgment of paternity or denial of paternity may
commence a proceeding to challenge the acknowledgment or denial only on the basis of
fraud, duress, or material mistake of fact.” Id. § 160.308(a). Generally, the proceeding to
challenge an acknowledgment of paternity may be filed “at any time before the issuance
of an order affecting the child . . . .”8 Id. Evidence that the man who is the signatory to the
acknowledgment is not rebuttably identified as the father through genetic testing
constitutes a material mistake of fact. Id. § 160.308(d). The proceeding to challenge the
acknowledgment “shall be conducted in the same manner as a proceeding to adjudicate
parentage.” Id. § 160.309(d). “At the conclusion of a proceeding to challenge an
acknowledgment of paternity or a denial of paternity, the court shall order the vital
statistics unit to amend the birth record of the child, if appropriate.” Id. § 160.309(e).
A proceeding to adjudicate parentage may be maintained by the mother of the
child. Id. § 160.602(a)(2). “The paternity of a child having a[n] . . .
7Because only an acknowledgment of paternity and adjudication of parentage are at issue in the
present case, we focus our discussion on them.
8 A party who is not a signatory to the acknowledgment of paternity must challenge the
acknowledgment within four years of the date the acknowledgment becomes effective. TEX. FAM. CODE
ANN. § 160.609(b).
6
acknowledged . . . father may be disproved only by admissible results of genetic testing
excluding that man as the father of the child or identifying another man as the father of
the child.” Id. § 160.631(b). “[A] man excluded as the father of a child by genetic testing
shall be adjudicated as not being the father of the child.” Id. § 160.631(d).
B. Analysis
Appellants assert that the trial court abused its discretion by ordering genetic
testing to establish parentage before Jenrri’s acknowledgment of paternity had been set
aside and allege that Mayra did not follow the required procedure to do so. Appellants
request this Court remand the case for a new trial with instructions to set aside Jenrri’s
acknowledgment. In support of their assertion, appellants rely on two mandamus actions
that challenged the trial courts’ orders for genetic testing for children that had
acknowledged fathers. See In re Off. of Att’y Gen. of Tex., 272 S.W.3d 773, 776 (Tex.
App.—Dallas 2008, orig. proceeding); In re Att’y Gen. of Tex., 195 S.W.3d 264, 269 (Tex.
App.—San Antonio 2006, orig. proceeding). In both cases, the appellate courts held the
trial courts abused their discretion by ordering genetic testing where a valid
acknowledgment of paternity was filed with the vital statistics unit. See In re Off. of Att’y
Gen. of Tex., 272 S.W.3d at 776; In re Att’y Gen. of Tex., 195 S.W.3d at 270.
However, in both cases, the courts of appeals analyzed the trial courts’ orders
under a prior version of the statute dictating the time in which an acknowledgment of
paternity may be challenged. See ADOPTION OF THE UNIFORM PARENTAGE ACT, 77th Leg.,
R.S., Ch. 821, § 1.01, 2001 Tex. Sess. Law Serv. Ch. 821 (codified at TEX. FAM. CODE
ANN. § 160.308). Under the prior version, the proceeding to challenge the
acknowledgment of paternity must have been brought within four years of the effective
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date of the acknowledgment. See id. In both cases, the challenge to the
acknowledgments came more than four years after their effective dates. See In re Off. of
Att’y Gen. of Tex., 272 S.W.3d at 774–75; In re Att’y Gen. of Tex., 195 S.W.3d at 266.
The current version of the statute permits a party to challenge an acknowledgment of
paternity at any time before an order affecting the child has been entered. See TEX. FAM.
CODE ANN. § 160.308(a). Accordingly, we do not find those cases instructive to the
present circumstances.
Appellants and Mayra both indicated in their petitions that no court-ordered
conservatorships, guardianships, or other relationships exist affecting the child. Without
a previous order affecting K.N.H., the deadline to challenge Jenrri’s acknowledgment of
paternity and establish another man as K.N.H.’s father had not yet passed. See id.
§§ 160.308(a), 160.609(a). The family code requires a proceeding to challenge an
acknowledgment of paternity be conducted in the same manner as a proceeding to
adjudicate parentage found in subchapter G of the family code. Id. § 160.309(d). Mayra
filed a petition to adjudicate parentage, naming Gutierrez as the potential father of K.N.H.
and including Jenrri and Castro as parties, which meet the statutory requirements for a
petition to adjudicate parentage. See id. § 160.601–.603.
In her petition, Mayra indicated that the purpose of the suit was to “establish the
parent-child relationship between Mayra . . . and the child[,]” “establish the parent-child
relationship between [Gutierrez] and the child,” and “exclude [Jenrri] as the alleged father
of [the] child and [Castro] as the alleged mother of the child.” Further, according to the
trial court’s temporary order, genetic testing revealed that Gutierrez, not Jenrri, is K.N.H.’s
father. The family code allows the paternity of an acknowledged father be disproved by
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genetic evidence that another man is the father of the child. See id. § 160.631(b). Such a
provision would be meaningless if trial courts did not have the discretion or authority to
order genetic testing of a man other than the acknowledged father. Evidence of genetic
testing that disproves a signatory of an acknowledgment is the father of a child constitutes
a material mistake of fact necessary to challenge an acknowledgment. See id.
§ 160.308(a), (d).
Finally, the trial court ordered that K.N.H.’s birth certificate be amended to reflect
the trial court’s adjudication of parentage. See id. § 160.309(e). Accordingly, we conclude
that Mayra followed the proper procedure to challenge Jenrri’s acknowledgment of
paternity and establish Gutierrez as the father of K.N.H. The trial court did not err by
adjudicating Gutierrez as K.N.H.’s father. However, the trial court’s order should have
included an adjudication that Jenrri is not the father of K.N.H. See id. § 160.631(d). As
such, to the extent appellants complain the trial court failed to formally set aside Jenrri’s
acknowledgment of paternity, appellants’ first issue is sustained. To the extent appellants
argue that the trial court abused its discretion in ordering genetic testing for Gutierrez and
adjudicating him as father, appellants’ first issue is overruled.
III. CHILD SUPPORT
In their second issue, appellants complain that the trial court lacked personal
jurisdiction and authority to order appellants to pay child support as non-parents.
However, by petitioning the trial court for affirmative relief, appellants submitted
themselves to the jurisdiction of the court. Dawson-Austin v. Austin, 968 S.W.2d 319, 322
(Tex. 1998); see also Cantu v. Gray & Becker, P.C., No. 03-02-00099-CV, 2002 WL
31599470, at *4 (Tex. App.—Austin Nov. 21, 2002, pet. denied) (“Texas courts are courts
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of general jurisdiction and have personal jurisdiction over Texas residents and all other
persons who are amenable to process issued by the courts of this state.”) Accordingly,
we focus our review on whether the trial court possessed the authority to order appellants
to pay support for K.N.H.
A. Standard of Review and Applicable Law
A trial court’s child support order is reviewed under an abuse of discretion
standard. In re R.D.E., 627 S.W.3d 798, 800 (Tex. App.—Corpus Christi–Edinburg 2021,
pet. denied). However, “[a] trial court has no discretion to determine what the law is.” In
re Francis, 186 S.W.3d 534, 538 (Tex. 2006).
Texas Family Code § 154.001 permits a trial court to “order either or both parents
to support a child . . . .” TEX. FAM. CODE ANN. § 154.001(a). The term parent includes an
adoptive or biological mother, an adoptive father, or a man presumed, adjudicated, or
otherwise legally determined to be the father of the child. Id. § 101.024. A trial court lacks
authority to order a person who is not a parent of the child to pay support for the child. In
re A.J.L., 108 S.W.3d 414, 421 (Tex. App.—Fort Worth 2003, pet. denied); Mata v.
Moreno, 601 S.W.2d 58, 59 (Tex. App.—Houston [1st. Dist.] 1980, no writ).
B. Analysis
As discussed supra, the trial court concluded that Gutierrez, not Jenrri, is the father
of K.N.H. through genetic testing and adjudicated him so. Mayra, not Castro, was
adjudicated as K.N.H.’s mother. Further, the order identifies appellants as the maternal
aunt and uncle of K.N.H., not as parents, and Jenrri has been excluded as the father of
K.N.H. by virtue of Gutierrez’s genetic testing results. Accordingly, the trial court lacked
authority to order appellants to pay support for K.N.H. and erred in doing so. See TEX.
10
FAM. CODE ANN. § 154.001(a); In re A.J.L., 108 S.W.3d at 421. Appellants’ second issue
is sustained.
IV. ATTORNEY’S FEES
By their third issue, appellants complain that Mayra did not present evidence of the
reasonable hours spent working on the case nor hourly rate for such work and was thus
insufficient to support the trial court’s award.
A. Standard of Review
The decision to award reasonable attorney’s fees and the amount awarded are
within the broad discretion of the trial court. TEX. FAM. CODE ANN. § 106.002(a); In re
K.A.M.S., 583 S.W.3d 335, 349 (Tex. App.—Houston [14th Dist.] 2019, no pet.). The trial
court’s award of attorney’s fees is reviewed for an abuse of discretion. Gerges v. Gerges,
601 S.W.3d 46, 65 (Tex. App.—El Paso 2020, not pet.) (citing Tucker v. Thomas, 419
S.W.3d 292, 296 (Tex. 2013)). “A trial court abuses its discretion only when it has acted
in an unreasonable or arbitrary manner, or when it acts without reference to any guiding
principle.” Coburn v. Moreland, 433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.)
(quoting In re Marriage of Jeffries, 144 S.W.3d 636, 638 (Tex. App.—Texarkana 2004, no
pet.). “Under an abuse of discretion standard, legal and factual sufficiency challenges to
the evidence are not independent grounds of error, but are relevant factors in assessing
whether the trial court abused its discretion.” Zeifman v. Michels, 212 S.W.3d 582, 587
(Tex. App—Austin 2006, pet. denied). “However, an award of attorney’s fees must be
supported by evidence that the fees are reasonable and necessary.” In re K.A.M.S., 583
S.W.3d at 349 (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991)).
Accordingly, “we consider whether the trial court had sufficient evidence upon which to
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exercise its discretion and, if so, whether it erred in the exercise of that discretion.”
Coburn, 433 S.W.3d at 823. An appellant may raise the issue regarding the sufficiency of
the evidence for the first time on appeal. TEX. R. APP. P. 33.1(d).
B. Applicable Law
“The reasonableness of a judgment for attorney’s fees is a question of fact, for
which competent evidence must be put forth.” Sims v. Sims, 623 S.W.3d 47, 66 (Tex.
App.—El Paso 2021, pet. denied). “The party seeking fees must prove both
reasonableness and necessity of the fees sought.” Id. (citing In re Nat’l Lloyds Ins. Co.,
532 S.W.3d 794, 809 (Tex. 2017) (orig. proceeding)). We apply the lodestar method to
determine what constitutes reasonable attorney’s fees. Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 494 (Tex. 2019) (quoting El Apple I, Ltd. v. Olivas, 370
S.W.3d 757, 760 (Tex. 2012)). Under the lodestar method, the trial court “must determine
the reasonable hours spent by counsel in the case and a reasonable hourly rate for such
work.” El Apple, 370 S.W.3d at 760. “The court then multiplies the number of such hours
by the applicable rate, the product of which is the base fee or lodestar.” Id.
The starting point for determining a lodestar fee award . . . is the number of
hours “reasonably expended on the litigation,” and proof of reasonable
hours “should include the basic facts underlying the lodestar, which are:
(1) the nature of the work, (2) who performed the services and their rate,
(3) approximately when the services were performed, and (4) the number
of hours worked.”
Rohrmoos Venture, 578 S.W.3d at 494–95 (quoting El Apple, 370 S.W.3d at 762–63).
“The court then multiplies the number of such hours by the applicable rate, the product of
which is the base fee or lodestar.” El Apple, 370 S.W.3d at 760. The lodestar may be
adjusted based on relevant factors, if the factors indicate that an adjustment is necessary
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to reach a reasonable fee. Id.
“General, conclusory testimony devoid of any real substance will not support a fee
award.” Rohrmoos Venture, 578 S.W.3d at 501. Absent the factors listed above, a trial
court does not have sufficient and specific information on which to base its award of fees.
Id.
If we reverse a trial court’s determination of attorney’s fees for insufficient
evidence, we remand the case to the trial court for redetermination of fees. Sims, 623
S.W.3d at 68; see also In re B.L.B., No. 13-13-00594-CV, 2014 WL 2158132, at *8 (Tex.
App.—Corpus Christi–Edinburg May 22, 2014, no pet.) (mem. op.) (“We remand the case
for further proceedings consistent with this opinion . . . because rendering a judgment
would usurp the trial court’s discretion to determine whether to award attorney’s fees in
this SAPCR.” (citing Woollett v. Matyastik, 23 S.W.3d 48, 53 (Tex. App.—Austin 2000,
pet. denied))).
C. Analysis
At trial, Mayra’s counsel provided limited testimony regarding the attorney’s fees
requested. The bulk of counsel’s testimony was that Mayra was charged $5,000.00 which
counsel believed was “fair and reasonable” and that her firm “devoted numerous
hundreds of hours to this case over the last four years” by attending mediation, trial, and
conducting discovery. However, no evidence was offered regarding the nature of the work
completed, who performed the services and at what rate, when the services were
performed, and the number of hours worked. See Rohrmoos Venture, 578 S.W.3d at
494–95. Although Mayra’s counsel submitted the attorney-client contract showing a
$5,000 fee for a contested case, no billing records or other evidence established the
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number of hours worked or rates charged. See id. at 502 (“Contemporaneous billing
records are not required . . . [but are] strongly encouraged to prove the reasonableness
and necessity of requested fees . . . .”).
Because the evidence as to the reasonableness and necessity of fees was so
deficient, the trial court did not have sufficient information on which to base its award. See
In re K.A.M.S., 583 S.W.3d at 349; Coburn, 433 S.W.3d at 823. Accordingly, the trial court
abused its discretion by awarding Mayra attorney’s fees. Coburn, 433 S.W.3d at 823.
Appellants’ third issue is sustained.
V. APPEARANCE AND WAIVER
By their final issue, appellants argue the trial court committed error by proceeding
to trial without providing notice to Gutierrez and allowing him to waive his appearance
telephonically. See TEX. R. CIV. P. 245 (requiring forty-five days’ notice for trial on
contested matters unless otherwise agreed). 9
In support of their claim that Gutierrez was not notified, appellants point to their
trial counsel’s statement that Gutierrez’s whereabouts were unknown and that he was
“out in space.” During announcements, a woman claiming to be Gutierrez’s mother,
identified by appellants’ trial counsel, provided Gutierrez’s phone number to the trial court.
Without an objection from either party, the trial court called the number and the following
exchange occurred:
9 We note that generally parties cannot maintain a complaint on behalf of a third party but do not
address that issue today. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993)
(“Under the Texas Constitution, standing is implicit in the open courts provision, which contemplates access
to the courts only for those litigants suffering an injury.”); TEX. CONST. art. I, § 13 (“All courts shall be open,
and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by
due course of law.”).
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[Court]: Hi Mr. Gutierrez.
[Gutierrez]: Uh-huh, who’s this?
[Court]: This is Judge Dunson from 309th and we’re here having a trial for the
Delgado case.
....
[Court]: I’m just making sure—making sure I have the right person; Christian
Alberto Osorto Gutierrez?
[Gutierrez]: Uh-huh.
....
[Court]: You came to court—and came to court a couple of times and you also
have done a DNA test to determine that the child is your child,
correct?
[Gutierrez]: Uh-huh.
[Court]: Okay. So you’ve made an appearance in court but you don’t have a
desire to participate in the trial? It’s between the mom and the
intervenor.
[Gutierrez]: Yeah, yeah, that’s between the mom and the brother.
[Court]: Okay. So I’m just making sure. So thank you, Mr. Gutierrez. Court
will make—that you appeared by—made notice that you appeared
by phone today and that you waived—you waive your right to
participate in the trial. Did you understand that, sir?
[Gutierrez]: Yes, a little bit.
[Court]: Okay. I said I’m making a note and you’re on the record that I called
you by phone and you made an appearance by phone and you
waived your right to participate in this trial today?
[Gutierrez]: Uh-huh.
[Court]: Is that correct?
[Gutierrez]: That is correct. . . .
Contrary to appellants’ assertion, the record before us does not indicate whether
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Gutierrez was provided notice prior to trial on the merits. Regardless, in order to preserve
a complaint for appellate review, an appellant must make a timely request, objection, or
motion and receive a ruling on that request, objection or motion. TEX. R. APP. P. 33.1(a).
A party who fails to object to a lack of notice under Texas Rule of Civil Procedure 245
and proceeds to trial waives the complaint for review. Stallworth v. Stallworth, 201 S.W.3d
338, 346 (Tex. App.—Dallas 2006, no pet.); see TEX. R. CIV. P. 245. Because appellants
did not object at trial, they have waived the issue for appellate review. See TEX. R. APP.
P. 33.1(a); Stallworth, 201 S.W.3d at 346. Appellants’ fourth issue is overruled as waived.
VI. CONCLUSION
We reverse the trial court’s order of child support and attorney’s fees payable by
appellants to Mayra and remand the matter for further proceedings consistent with this
memorandum opinion. We further remand the matter of adjudication of Jenrri as not being
the father of K.N.H. to the trial court consistent with this memorandum opinion. Further,
because the adjudication of parentage appears only in temporary orders which were
disposed of upon entering a final order, we recommend trial court include the adjudication
of parentage in the final order for clarity. The remainder of the trial court’s judgment is
affirmed.
CLARISSA SILVA
Justice
Delivered and filed on the
27th day of January, 2022.
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