Opinion
No. 10-03-00331-CV
Opinion delivered and filed June 29, 2005.
Appeal from the 301st District Court Dallas County, Texas, Trial Court No. 02-15907.
Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA. (Chief Justice Gray dissenting)
MEMORANDUM Opinion
In this family law case, we must decide if the trial court properly granted a summary judgment bill of review.
We will apply the standard of review in Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).
Terry Kiefer and Kelly Jo Wood were married in 1995. In 1998, A.K. was born to Wood. She filed for divorce in 2000, listing Kiefer as the father. Consequently, the decree of divorce named Kiefer as A.K.'s father and established the necessary orders for conservatorship and support.
The complicating factor is that Wood had been having an ongoing relationship with John Touris, who has been proven by DNA testing to be A.K.'s biological father.
Touris filed a bill of review to set aside the parent-child provisions of the divorce decree. He was joined in his effort by Dennis Brewer, a guardian ad litem appointed for A.K. After the trial court heard competing summary-judgment motions and granted those of Touris and the guardian ad litem, the effect which was to vacate the parent-child provisions in the divorce decree.
He had also filed a paternity petition in a separate case to establish his parental rights.
Kiefer appeals from this order in two issues, and Wood appeals in six issues.
The critical issue we must decide is whether Touris was entitled, under the Family Code, to be served with citation in the original divorce proceeding, it being undisputed that he was not so served and was not a party to that suit. The answer to this issue determines his burden of proof on the bill of review. If he was not entitled to a citation, his burden is to allege and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. If he was entitled to be served with citation, his burden is to show only the third element. The third element is conclusively established by proof that he was never served with process.
Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979); Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950).
Caldwell v. Barnes, No. 03-0672, 2004 Tex. LEXIS 1427, *7-8 (Tex. 2004).
See id.
Section 102.009(a)(8) of the Family Code provides that an "alleged father" should be served with a citation in a suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 102.009(a)(8) (Vernon 2002). Kiefer and Wood are adamant that the provision means a person actually named in the petition filed with the court as an "alleged father," a subjective inquiry. They argue that because Wood did not list Touris as an alleged father, he was not entitled to citation. Touris is equally convinced that the legislature meant to give notice of such a suit to anyone who would be an alleged father from an objective point of view, i.e., someone who knew all the facts and filed a petition that reflected those facts. Leaving that determination entirely to the petitioner, he says, violates the constitutional dimensions of a parent-child relationship. We agree with Touris. Wood knew at the time she filed the petition for divorce that her relationship with Touris could have resulted in his being the father of her child; thus, Touris was an alleged father and entitled to citation.
See In the Interest of K.M.S., 68 S.W.3d 61, 70-71 (Tex.App.-Dallas 2001, pet. denied) (declining to follow the apparent definition of "alleged father" in dicta of Tex. Dep't of Protective Regulatory Servs. v. Sherry, 46 S.W.3d 857, 860-61 (Tex. 2001), as being a man alleged in a formal pleading filed in that case to be the father).
Because it is undisputed that Touris was not served with citation in the divorce proceeding, we find that the trial court correctly granted his summary-judgment motion on bill of review. We overrule Wood's issues three, four and five and Kiefer's issue one.
See Caldwell v. Barnes, 2004 Tex. LEXIS 1427, at *7-8; In the Interest of K.M.S., 68 S.W.3d at 70-71.
Wood also complains about the grant of the guardian ad litem's motion for summary judgment. Because the trial court's determination of Touris' motion had the effect of setting aside the parent-child provisions of the divorce decree dated December 14, 2000, we need not address Wood's issues one and two relating to the guardian ad litem's motion.
The parties all agree that this result will allow the trial court to determine the rights and relationships of the parties in Touris' paternity suit that is still pending.
Kiefer and Wood also complain that the trial court erred in holding the statute of limitations did not bar Touris' paternity suit. Because this is an appeal from a summary judgment on bill of review, we need not address the Family Code statute of limitations issues. We overrule Wood's issue six and Kiefer's issue two.
CONCLUSION
Having overruled all necessary issues, we affirm the summary judgment granting the bill of review.