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Opinion issued April 19, 2007
Court of Appeals
First District of
VICTOR MILES, Appellant
BRIDGET PEACOCK AND THE OFFICE OF THE ATTORNEY GENERAL
On Appeal from the 247th District Court
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.
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. 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. Specifically, the court ordered Miles to pay $1,000 per month as current child support and $24,000 in retroactive support. 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
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
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.—
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)
160.607 applies in cases where there is a presumed father.
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,
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 (
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.
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
review a trial court’s judgment granting child support under an abuse of
discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109
Current Child Support
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.”
Retroactive Child Support
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.”
Life and Health Insurance
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 (
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.”
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.”
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.
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.
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 (
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.
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
 Carnell similarly denies that he is the father of N.S.P.
 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.
 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).
 Nor is there evidence in the record concerning Bridget’s employment, wages, salary, or income.