Andre A. Josey v. the Attorney General of Texas

Josey v. AG IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-90-252-CV ANDRE A. JOSEY, APPELLANT vs. THE ATTORNEY GENERAL OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT NO. 484,243, HONORABLE W. JEANNE MEURER, JUDGE PER CURIAM This appeal arises from a suit filed by appellee, the Attorney General of Texas, to establish the parent-child relationship between appellant, André A. Josey, and the child, André Anthony Josey, II. The suit was brought on behalf of the child's mother, Rhonda Denise Grant. After appellant failed to file an answer to the petition, the trial court rendered a default judgment for appellee. In point of error one, appellant contests the sufficiency of the evidence to establish his paternity. By defaulting, the non-answering party admits the facts properly pleaded and the justice of his opponent's claims. Stoner v. Thompson, 578 S.W.2d 679 (Tex. 1979). Therefore, appellant has admitted, as a matter of law, the paternity allegation in the pleadings. Further, appellee introduced a sworn statement of paternity in which appellant acknowledged that he is the father of the child. The language of this statement complied with that required by the statute in effect when appellant executed it. 1975 Tex. Gen. Laws, ch. 476, § 24 [Tex. Fam. Code § 13.22, since amended]. The child's mother also testified that appellant is the biological father of the child and that the sworn statement in which appellant acknowledged his paternity was accurate. We overrule point one. In point of error two, appellant argues that the trial court unconstitutionally assessed the cost of public assistance against him retroactive to a time before he was legally obligated for it. U.S. Const. amend. XIV. The trial court found, in its judgment, that the State of Texas had provided $3,588 in public assistance to support the child and that the State was entitled to a judgment for the funds expended. Tex. Fam. Code Ann. § 14.062 (Supp. 1991). Appellant contends that he has no retroactive obligation to support the child for any time before his paternity was established and that the obligation can be imposed only from the filing of the paternity petition, his signing of the paternity affidavit, or the court's decree of paternity. Appellant's argument assumes that he was not a parent until one of the three named events occurred. However, the effect of a decree of paternity is to create the parent-child relationship between the father and the child from the child's birth. Tex. Fam. Code Ann. § 13.09 (1986); Adams v. Stotts, 667 S.W.2d 798 (Tex. App. 1983, no writ). Logic dictates that if a party is a parent when paternity is established, he was also a parent when the child was born, and his parental responsibilities begin when he becomes a parent at his child's birth. Adams, 667 S.W.2d at 800. Given that appellant was responsible as a parent from this child's birth, the trial court did not unconstitutionally assess costs for public assistance incurred before his paternity was established. We overrule point two. In point of error three, appellant contests the sufficiency of the evidence to establish the amount of current child support awarded, arguing that the court failed to consider the child born to him from his marriage to a third party. The child's mother testified at trial that the monthly net income of appellant, on active duty in the United States Army, was $1,500. The trial court took judicial notice that an enlisted man with six years' service receives a monthly net income, including salary, housing allowance, and subsistence pay, of $1,506 and ordered appellant to pay monthly child support of $300, 20% of $1,500. This amount complies with the guidelines for the support of one child. Tex. Fam. Code Ann. § 14.055 (Supp. 1991). The credibility of the witnesses is a matter for the trial court's judgment. Lute Riley Motors v. T.C. Crist, Inc., 767 S.W.2d 439 (Tex. App. 1988, writ denied). Appellant, by defaulting, failed to present evidence at trial that he was supporting a second child. Whether he may be entitled to seek modification of his support obligation is not before the court. We find the evidence sufficient to support the trial court's order and overrule point three. In point of error four, appellant challenges the sufficiency of the evidence to support the trial court's order that he maintain dental insurance for the child. At trial, the child's mother testified that appellant could obtain free dental coverage for his children through the military. Appellant argues that this evidence is insufficient because dental coverage exceeds the statutory child support guidelines. His argument assumes that the court does not have discretion to exceed the guildelines, under the facts of a particular case. In a suit affecting the parent-child relationship, the court must order health insurance to be provided for the child. Tex. Fam. Code Ann. § 14.061 (Supp. 1991). The trial court in this case could have determined that dental insurance was an aspect of health insurance. It could further have found that appellant could provide dental insurance without his obligations exceeding the child support guidelines. See § 14.06(c), supra. Clearly, the trial court could conclude that access to free dental coverage would be in a child's best interest. We find the evidence sufficient and overrule point four. In point of error five, appellant claims the trial court erred by denying his motion for new trial. Appellant did not bring forward a statement of facts from the hearing on his motion; however, the trial court filed its findings of fact and conclusions of law. The court found that appellant had received service on June 1, 1990, but failed to file an answer. It concluded that appellant was properly served and that appellant failed to show a meritorious defense. Without a record of the hearing, we cannot determine whether there is any evidence to support the trial court's findings and conclusions. Englander v. Kennedy, 428 S.W.2d 806 (Tex. 1968). We presume that the evidence was sufficient to support the trial court's denial of the motion for new trial. Point five is overruled. We affirm the judgment of the trial court. [Before Justices Powers, Aboussie and Kidd] Affirmed Filed: August 14, 1991 [Do Not Publish]