Victor Miles v. Bridget Peacock

Opinion issued April 19, 2007

Opinion issued April 19, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-00313-CV

VICTOR MILES, Appellant

V.

BRIDGET PEACOCK AND THE OFFICE OF THE ATTORNEY GENERAL

OF TEXAS,

Appellees

On Appeal from the 247th District Court

Harris County, Texas

Trial Court Cause No. 2004-35453

O P I N I O N

Victor

Miles brings this restricted appeal from the trial court’s entry of a no-answer

default judgment in a paternity and child support proceeding brought by

appellee, Bridget Peacock. Miles

contends (1) the statute of limitations bars Bridget’s paternity suit involving

a fourteen-year-old child, (2) the trial court erred in ordering him to pay

various forms of child support, and (3) the trial court should have awarded him

possession of the child. We affirm the

judgment in part, reverse it in part, and remand for further proceedings.

Background

Bridget

and Carnell Peacock, a non-party to the appeal, married in 1985. Bridget filed for a divorce in 2004. In her petition, she alleges that Miles—not

Carnell—is the father of her child, N.S.P., who was born in 1990. [1] Bridget and Carnell both requested that the

trial court order Miles to submit to genetic testing, and Bridget additionally

sought child support from Miles. Miles

accepted citation of service in February 2005.

He did not answer or otherwise appear in the lawsuit, however.

The

trial court held a bench trial in August 2005.

Miles did not appear for trial.

The court took judicial notice of a paternity test showing that Miles is

the father of N.S.P. Bridget testified

that Miles had been paying child support in the amount of $1,000 per month and

asked the court to order him to continue making such payments.

The

trial court entered a no-answer default judgment against Miles adjudicating his

paternity of N.S.P. and ordering him to pay child support. [2] Specifically, the court ordered Miles to pay

$1,000 per month as current child support and $24,000 in retroactive support. [3] The court also ordered Miles to include and

maintain N.S.P. on the health insurance policy available through his job, and

to purchase a $50,000 life insurance policy naming Bridget as beneficiary for

the benefit of N.S.P. With respect to

conservatorship and possession, the court appointed Miles and Bridget as joint

managing conservators, but ordered that “[i]t is the Best Interest of the child

that VICTOR MILES shall not have Possession of the child, until this Order is

modified by the Court, as he has not bonded with the child.” Miles subsequently filed this restricted

appeal.

Standard of Review

A

restricted appeal is a procedural device available to a party who did not

participate, either in person or through counsel, in a proceeding that resulted

in a judgment against the party. Tex. R. App. P . 30. It constitutes a direct attack on a default

judgment. Id. ; Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture , 811 S.W.2d

942, 943 (Tex.

1991). A party filing a restricted

appeal must demonstrate that (1) he appealed within six months after the

judgment was rendered, (2) he was a party to the suit, (3) he did not

participate in the actual trial of the case, and (4) error appears on the face

of the record. See Tex. R. App. P .

30; Quaestor Inv., Inc. v. Chiapas , 997 S.W.2d 226, 227 (Tex. 1999).

The face of the record includes all papers on file in the appeal,

including the clerk’s record and any reporter’s record. DSC

Fin. Corp. v. Moffitt , 815 S.W.2d 551, 551 (Tex. 1991); Davenport v. Scheble , 201 S.W.3d 188, 193 (Tex. App.—Dallas 2006,

pet. filed). Because a restricted appeal

affords an appellant the same scope of review as an ordinary appeal, he may

challenge the legal and factual sufficiency of the evidence. See

Norman Commc’ns v. Tex. Eastman Co. , 955 S.W.2d 269, 270 (Tex.

1997); Whitaker v. Rose , No.

14-04-01178-CV, 2007 WL 324595, at *1 (Tex.

App.—Houston

[14th Dist.] Feb. 6, 2007, no pet.).

Unlike

other civil cases in which a defaulting defendant is presumed to admit the

petition’s allegations regarding liability and liquidated damages, the

allegations in a divorce petition are not admitted by a defaulting defendant. Tex.

Fam. Code Ann . § 6.701 (Vernon 2006); Wilson v. Wilson , 132 S.W.3d 533, 538 (Tex. App.—Houston [1st Dist.] 2004, pet. denied); see Sandone v. Miller-Sandone , 116

S.W.3d 204, 207 (Tex. App.—El Paso 2003, no pet.) (noting that divorce petition

may not be taken as confessed if respondent does not file answer).

Paternity

In

his first issue, Miles contends the trial court erred in adjudicating his

paternity of N.S.P. He does not

challenge the legal and factual sufficiency of the evidence establishing his paternity;

rather, he asserts that the four-year statute of limitations set forth in

Family Code section 160.607 bars Bridget’s paternity suit. See

Tex. Fam. Code Ann . § 160.607(a)

(Vernon Supp.

2006).

Section

160.607 applies in cases where there is a presumed father. Id. A man is presumed to be the father of a child

if he is married to the child’s mother and the child is born during the

marriage. Id. § 160.204(a)(1) (Vernon Supp. 2006). Here, Carnell is N.S.P.’s presumed father

because he was married to Bridget at the time N.S.P. was born. A presumption of paternity may be rebutted by

adjudication, however. Id.

§ 160.204(b)(1). Under section 160.607,

such a proceeding must be commenced “not later than the fourth anniversary of

the date of the birth of the child.” Id.

§ 160.607(a).

Miles

asserts that the four-year statute of limitations set forth in section 160.607

bars Bridget’s paternity suit because she did not bring it until N.S.P. was

nearly fourteen years old.

“Limitations[, however,] is an affirmative defense that is waived if not

pleaded.” G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co. , 177 S.W.3d 537,

544 (Tex. App.—Dallas 2005, no pet.); see Tex.

R. Civ. P . 94 (listing statute of limitations as affirmative defense

that party “shall set forth affirmatively”); Frazier v. Havens , 102 S.W.3d 406, 411 (Tex. App.—Houston [14th

Dist.] 2003, no pet.) (“A party waives the affirmative defense of statute of

limitations if it is not pleaded or tried by consent.”); Brown v. Shores , 77 S.W.3d 884 , 885 n.2 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (same).

Here, Miles failed to answer the

lawsuit and thus did not plead a limitations defense. Nor did he ever appear in the lawsuit or in

any way assert a limitations defense at any point in the proceedings. Accordingly, we conclude that Miles has

waived any limitations defense, and the trial court thus did not err in

entering a default judgment adjudicating his paternity. See In

re Marriage of Collins , 870 S.W.2d 682, 683, 685 (Tex.

App.—Amarillo 1994, writ denied) (holding that trial court did not err in

entering default judgment finding that informal marriage existed and

adjudicating paternity because appellant waived limitations defense by failing

to affirmatively plead it); see also

G.R.A.V.I.T.Y. , 177 S.W.3d at 544 (holding that limitations defense was

waived because, once party’s amended pleading was struck, “it had no pleading

asserting the affirmative defense of limitations”); Phifer v. Nacogdoches County Cent. Appraisal Dist. , 45 S.W.3d 159,

173 (Tex. App.—Tyler 2000, pet. denied) (rejecting appellant’s argument that

trial court erred in allowing appellee to recover on claim that was barred by

statute of limitations, since appellant had failed to plead limitations

defense).

Miles also asserts that, “since any

results of genetic tests performed without the presumed father’s consent or a

court order are not admissible to disprove the paternity of a presumed father,

the trial court erred in establishing paternity between [Miles] and the

child.” To support this argument, Miles

relies on Family Code section 160.621(c), which provides as follows: “If a

child has a presumed, acknowledged, or adjudicated father, the results of

genetic testing are inadmissible to adjudicate parentage unless performed: (1)

with the consent of both the mother and the presumed, acknowledged, or

adjudicated father; or (2) under an

order of the court under Section 160.502.”

Tex. Fam. Code Ann . §

160.621(c) (Vernon 2002) (emphasis added).

Miles observes that there is no evidence the trial court ordered genetic

testing, and notes that N.S.P.’s presumed father, Carnell, did not offer

testimony about consenting to a paternity test.

Miles, however, overlooks the fact that Carnell (like Bridget) requested

paternity testing in his counterpetition for divorce. As such, we reject Miles’s contention that

Carnell did not consent to paternity testing, and we hold that the paternity

test results were admissible under subsection 160.621(c)(1). Cf.

In re Att’y Gen. of Tex. , 195 S.W.3d

264 , 266 n.2 (Tex. App.—San Antonio 2006, orig. proceeding) (observing that

genetic test results were inadmissible under section 160.621(c) because mother

did not consent to genetic testing, and trial court did not order genetic

testing). We therefore affirm that

portion of the trial court’s judgment finding that Miles is the father of

N.S.P.

Child Support

Miles

contends the evidence is legally insufficient to support the trial court’s

judgment that he pay child support to Bridget in the following forms: (1) $1,000 per month in current child support,

(2) $24,000 in retroactive support, (3) purchase and maintain a $50,000 life

insurance policy with Bridget as the beneficiary for N.S.P.’s benefit, and (4)

include and maintain N.S.P. on the health insurance policy available through

his job. He asks that we remand for

further proceedings and a trial.

Standard of Review

We

review a trial court’s judgment granting child support under an abuse of

discretion standard. Worford v. Stamper , 801 S.W.2d 108, 109

(Tex. 1990); Newberry

v. Bohn-Newberry , 146 S.W.3d 233, 235 (Tex.

App.—Houston [14th Dist.] 2004, no pet.). A trial court abuses its discretion when it

acts arbitrarily or without reference to guiding principles. Worford ,

801 S.W.2d at 109 . Under this standard,

legal and factual sufficiency of the evidence are not independent grounds of

error, but rather are relevant factors in assessing whether the trial court

abused its discretion. Newberry , 146 S.W.3d at 235 . A trial court does not abuse its discretion

when there is some evidence of a substantive and probative character to support

the trial court’s judgment. Id.

Current Child Support

Family

Code Chapter 154 governs child support proceedings and sets forth guidelines to

apply in determining an equitable amount of child support. See Tex. Fam. Code Ann . §§ 154.001–154.309

(Vernon 2002 & Supp. 2006). Under

section 154.062, a court “shall calculate net resources for the purpose of

determining child support liability.” Id. § 154.062(a) (Vernon 2002). “Resources” include wage and salary income,

interest and dividends, self-employment income, net rental income, and all

other income actually being received. Id. §

154.062(b)(1)–(5). “There must be some

evidence of a substantive and probative character of net resources” in order

for the trial court to discharge its duty under section 154.062. Newberry ,

146 S.W.3d at 236 . “In the absence of

evidence of the wage and salary income of a party, the court shall presume that

the party has wages or salary equal to the federal minimum wage for a 40-hour

week.” Tex.

Fam. Code Ann . § 154.068 (Vernon 2002).

Retroactive Child Support

A

court “may order a parent to pay retroactive child support if the parent: (1)

has not previously been ordered to pay support for the child; and (2) was not a

party to a suit in which support was ordered.”

Id.

§ 154.009(a) (Vernon 2002). In ordering

retroactive support, “the court shall apply the child support guidelines

provided by this chapter” and “shall consider the net resources of the obligor

during the relevant time period.” Id. §§

154.009(b), 154.131(b) (Vernon 2002). In

addition, the court shall consider whether (1) the child’s mother made any

previous attempts to notify the obligor of his paternity, (2) the obligor had

knowledge of his paternity, (3) the retroactive support order will impose an

undue financial hardship on the obligor or his family, and (4) the obligor

provided actual support before the lawsuit was filed. Id. § 154.131(b).

Life and Health Insurance

A

trial court has the authority to order a parent to maintain a life insurance

policy for the child’s benefit for so long as the child support obligation

exists. Niskar v. Niskar , 136 S.W.3d 749, 759 (Tex.

App.—Dallas 2004, no pet.); Grayson v.

Grayson , 103 S.W.3d 559, 563 (Tex. App.—San

Antonio 2003, no pet.). In addition,

section 154.181 provides that the trial court “shall render an order for the

medical support of the child.” Tex. Fam. Code Ann . § 154.181(a) (Vernon Supp. 2006).

The court “shall consider the cost and quality of health insurance

coverage available to the parties and shall give priority to health insurance

coverage available through the employment of one of the parties.” Id. § 154.182(a) (Vernon

Supp. 2006). If insurance is available

through the obligor’s employment, the trial court shall order the obligor to

obtain such insurance. Id.

§ 154.182(b)(1). If insurance is

not available through the obligor’s employment and is available through the

obligee’s employment, the trial court may order the obligee to provide

insurance and order the obligor to pay additional child support to pay the

obligee for the actual cost of the health insurance of the child. Id. § 154.182(b)(2).

Sufficiency of the Evidence

The

trial court made the following findings and conclusions regarding Miles’s child

support obligations:

2. the amount of net resources available to

VICTOR MILES per month is $6,000;

3. the amount of net resources available to

BRIDGET PEACOCK per month is $443;

4. the amount of child support payments per

month that is computed if the percentage guidelines of section 154.125 of the

Texas Family Code are applied to the first $6,000 of VICTOR MILES’s net

resources is $1,100.00; and

5. the percentage applied to the first

$6,000 of VICTOR MILES’s net resources for child support by the actual order

rendered by the Court is 20 percent.

The court also found that retroactive

support was warranted based on Miles’s “failure to support the child within

financial ability,” and ordered him to pay $24,000 for the period between

August 1, 2003 and August 1, 2005. In

addition, the court ordered Miles “to include and maintain [N.S.P.] on [the]

health insurance available through his job” and, “[a]s additional child

support,” to “purchase and, as long as child support is payable under the terms

of this order, maintain in full force and effect at VICTOR MILES’s sole cost

and expense a life insurance policy insuring the life of VICTOR MILES, naming

BRIDGET PEACOCK primary beneficiary as trustee for the benefit of [N.S.P.] that

on VICTOR MILES’s death will pay to BRIDGET PEACOCK an amount not less than

$50,000.”

Miles

contends the trial court abused its discretion in entering these child support

orders, and asks that we remand the case for further proceedings, because there

is no evidence in the record concerning his wages, salary, income, net

resources, or whether he even has a job.

The Attorney General agrees that a remand is warranted because, although

Bridget testified that Miles had been paying her $1,000 per month in child

support, “the court had no information about [Miles’s] net resources with which

to apply the child support guidelines, and no information about how long he had

been paying support or how much he had paid.”

We

agree that the case should be remanded.

The Family Code requires a trial court to “calculate net resources” in

determining a party’s current and retroactive child support obligations. Tex.

Fam. Code Ann . §§ 154.062(a), 154.131(b). In addition, with respect to insurance

coverage, the court must “consider the cost and quality of health insurance

coverage available to the parties and shall give priority to health insurance

coverage available through the employment of one of the parties.” Id. § 154.182(a).

Here, the record is void of evidence concerning Miles’s employment,

wages, salary, or income. [4] As such, we conclude that there is

insufficient evidence to support the trial court’s calculation of Miles’s net resources

and its corresponding award of current and retroactive child support payments

and insurance coverage. See Newberry , 146 S.W.3d at 236 (noting

that “[t]here must be some evidence of a substantive and probative character of

net resources” in order for trial court to discharge its duty under Family

Code). We therefore reverse that portion

of the judgment setting forth Miles’s child support obligations and remand to

the trial court for further proceedings.

Possession

Miles

contends the trial court abused its discretion in awarding him no possession of

N.S.P. because the court did not hear evidence concerning N.S.P.’s best

interest. He asks that we remand for

further proceedings and a trial.

“The

best interest of the child shall always be the primary consideration of the

court in determining the issue[] of . . . possession . . . .” Tex.

Fam. Code Ann . § 153.002 (Vernon 2002).

There is a rebuttable presumption that the standard possession order (1)

provides reasonable minimum possession for a parent named as a joint managing

conservator and (2) is in the child’s best interest. Id. § 153.252 (Vernon 2002). If special circumstances make the standard

possession order unworkable or inappropriate, however, “[t]he court shall render

an order that grants periods of possession of the child as similar as possible

to those provided by the standard possession order.” Id. § 153.253 (Vernon 2002). In deviating from the standard possession

order, the trial court may consider (1) the age, developmental status,

circumstances, needs, and best interest of the child; (2) the circumstances of

the managing conservators; and (3) any other relevant factor. Id. § 153.256 (Vernon 2002). “The terms of an order that denies possession

. . . may not exceed those that are required to protect the best interest of

the child.” Id. § 153.193 (Vernon

2002). We review a trial court’s

best-interest determination for an abuse of discretion. See

Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex.

1982).

Here,

the trial court appointed Miles as a joint managing conservator of N.S.P., but

denied him possession, finding that “[i]t is the Best Interest of the child

that VICTOR MILES shall not have Possession of the child, until this Order is

modified by the Court, as he has not bonded with the child.” Contrary to the trial court’s finding,

however, it did not hear evidence concerning N.S.P.’s best interest. Nor did it hear evidence concerning N.S.P.’s

developmental status, circumstances, needs, and relationship (or lack thereof)

with Miles. Because Bridget presented no

evidence concerning N.S.P.’s best interest, the trial court had no discretion

to decide the possession issue contrary to the statutory presumption. See In

re S.C. , No. 04-06-00074-CV, 2006 WL 3499223, at *1 (Tex.

App.—San Antonio Dec. 6, 2006, no pet.) (holding

that trial court had no discretion to decide possession issue contrary to

statutory presumption because parent seeking deviation from standard possession

order “presented no evidence at all”); Hale

v. Hale , No. 04-05-00314-CV, 2006 WL 166518 , at *2 (Tex. App.—San Antonio

Jan. 25, 2006, pet. denied) (mem. op.) (“[A] complete denial of access should

be rare . . . [and] must be limited to those situations where the parent’s

access is not in the best interest of the child.”). Accordingly, we reverse that portion of the

judgment denying Miles possession and remand to the trial court for further

proceedings. In re S.C. , 2006 WL 3499223, at *2 .

Conclusion

We

conclude that Miles has waived any statute of limitations defense and therefore

affirm that portion of the trial court’s judgment adjudicating his paternity of

N.S.P. With respect to the portions of

the judgment awarding child support and denying possession, we conclude that

insufficient evidence supports the trial court’s findings and therefore reverse

and remand for further proceedings.

Jane

Bland

Justice

Panel consists of Chief Justice

Radack and Justices Jennings and Bland.

[1] Carnell similarly denies that he is the father of

N.S.P.

[2] The default judgment states as follows: “The Court

finds that Respondent, VICTOR MILES, was served and has not filed an answer and

. . . a default judgment is entered against him. . . . The Court finds that the Father of [N.S.P.]

is VICTOR MILES as stated in a valid Paternity Test as presented to the Court

and in the Court’s file.” The paternity

test is not in the record.

[3] The court assigned the retroactive support award to

appellee, the Office of the Attorney General of Texas, pursuant to Family Code

Chapter 233. See Tex. Fam. Code Ann. §§ 233.001–233.029

(Vernon 2002 & Supp. 2006).

[4] Nor is there evidence in the record concerning

Bridget’s employment, wages, salary, or income.