Martinez v. Martinez (Molinar), 953 S.W.2d 399
Court of Appeals of Texas, Eighth District, El Paso
August 7, 1997, Decided
No. 08-96-00098-CV
Prior History:
Appeal from the County Court at Law of Midland County, Texas. (TC # 28,575). Trial Court Judge: Hon. Doug Shaver.
Disposition: Core Terms
trial court, appoint, no writ, conservatorship, best interests of the child, paternity, sole management, child support, biological, reopen, fact finding, writ denied, custody, guess, ref'd
Case Summary
Procedural Posture
Appellant father sought review of a ruling from the County Court at Law of Midland County (Texas) in which the trial court appointed appellee mother sole managing conservator of the child and entered a standard possession order and set child support in an action seeking to establish the parent-child relationship.
Overview
Appellee attorney for the state child support office filed an action to establish a child's paternity. After parentage testing established a 99.76 percent probability of appellant father's paternity, appellant amended his pleadings to admit paternity. Appellant then filed a cross-petition seeking managing conservatorship of the child or in the alternative joint managing conservatorship with appellee mother. The trial court appointed appellee mother sole managing conservator, entered a standard possession order, and set child support. Appellant sought review. Appellee attorney sought reformation of the judgment to include a finding of paternity. The court affirmed as reformed. The court found that appellant did not suffer harm and thus the trial court did not err in failing to file separate findings of fact or conclusions of law. Also, the trial court did not abuse its discretion in appointing appellee sole managing conservator because it was in the best interest of the child and did not err in denying appellant's motion to reopen the case. In accordance with Tex. Fam. Code Ann. § 160.105 (1996), the court reformed the judgment to include a finding of paternity.
Outcome
The court reformed the judgment to include a finding that appellant father was the biological father of the child. The court affirmed the order appointing appellee mother sole managing conservator of the child, entering a standard possession order, and setting child support as reformed because it was in the best interest of the child.
LexisNexis® Headnotes
Civil Procedure > ... > Standards of Review > Harmless & Invited Errors > General Overview
Civil Procedure > ... > Standards of Review > Harmless & Invited Errors > General Overview
Estate, Gift & Trust Law > ... > Conservators & Guardians > Conservators > General Overview
Family Law > Guardians > General Overview
Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Civil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review
Family Law > Paternity & Surrogacy > General Overview
HN1
The failure of a trial court to file findings of fact constitutes error where a complaining party has complied with the requisite rules to preserve error. There is a presumption of harmful error unless the contrary appears on the face of the record. Thus, the failure to make findings does not compel reversal if the record before an appellate court affirmatively demonstrates that a complaining party has suffered no harm. Where there is only one theory of recovery or defense pleaded or raised by the evidence, there is no demonstration of injury. Shepardize - Narrow by this Headnote
The failure of a trial court to file findings of fact constitutes error where a complaining party has complied with the requisite rules to preserve error. There is a presumption of harmful error unless the contrary appears on the face of the record. Thus, the failure to make findings does not compel reversal if the record before an appellate court affirmatively demonstrates that a complaining party has suffered no harm. Where there is only one theory of recovery or defense pleaded or raised by the evidence, there is no demonstration of injury. Shepardize - Narrow by this HeadnoteCivil Procedure > ... > Standards of Review > Harmless & Invited Errors > General Overview
HN2 The test for determining whether a complainant has suffered harm is whether the circumstances of the case will require an appellant to guess the reason or reasons that a judge has ruled against it. Any guessing game is eliminated by inclusion of a court's findings as recitals in the judgment, as opposed to separate findings and conclusions. Shepardize - Narrow by this Headnote
The test for determining whether a complainant has suffered harm is whether the circumstances of the case will require an appellant to guess the reason or reasons that a judge has ruled against it. Any guessing game is eliminated by inclusion of a court's findings as recitals in the judgment, as opposed to separate findings and conclusions. Shepardize - Narrow by this HeadnoteEstate, Gift & Trust Law > ... > Conservators & Guardians > Conservators > General Overview
Family Law > Guardians > General Overview
HN3 Tex. Fam. Code Ann. § 153.001(a) (1996) recites that the public policy is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a stable environment for the child; and to encourage parents to share in the rights and duties of raising their child after the parents have dissolved their marriage. The best interest of the child shall always be the primary consideration of a court in determining conservatorship and possession. Tex. Fam. Code Ann. § 153.002 (1996). The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservatorship. Tex. Fam. Code Ann. § 153.003 (1996). A trial court may appoint a sole managing conservator or joint managing conservators. Tex. Fam. Code Ann. § 153.005(a)(1996). Shepardize - Narrow by this Headnote
Family Law > Guardians > General Overview Tex. Fam. Code Ann. § 153.001(a) (1996) recites that the public policy is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a stable environment for the child; and to encourage parents to share in the rights and duties of raising their child after the parents have dissolved their marriage. The best interest of the child shall always be the primary consideration of a court in determining conservatorship and possession. Tex. Fam. Code Ann. § 153.002 (1996). The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservatorship. Tex. Fam. Code Ann. § 153.003 (1996). A trial court may appoint a sole managing conservator or joint managing conservators. Tex. Fam. Code Ann. § 153.005(a)(1996). Shepardize - Narrow by this Headnote
HN4 Tex. Fam. Code Ann. § 153.031(b) (1996) creates a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. However, in determining whether joint managing conservatorship is in the best interest of the child, a court is to consider whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest; whether each parent can encourage and accept a positive relationship between the child and the other parent; whether both parents participated in child rearing before the filing of the suit; the geographical proximity of the parents' residences; if the child is 12 years of age or older, the child's preference, if any, regarding the appointment of joint managing conservators; and any other relevant factor. Shepardize - Narrow by this Headnote
Tex. Fam. Code Ann. § 153.031(b) (1996) creates a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. However, in determining whether joint managing conservatorship is in the best interest of the child, a court is to consider whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators; the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest; whether each parent can encourage and accept a positive relationship between the child and the other parent; whether both parents participated in child rearing before the filing of the suit; the geographical proximity of the parents' residences; if the child is 12 years of age or older, the child's preference, if any, regarding the appointment of joint managing conservators; and any other relevant factor. Shepardize - Narrow by this HeadnoteCivil Procedure > Appeals > Standards of Review > Abuse of Discretion
HN5 A trial judge's judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. The test for abuse of discretion in custody matters is whether the trial court acted without reference to any guiding rules or principles. Shepardize - Narrow by this Headnote
A trial judge's judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. The test for abuse of discretion in custody matters is whether the trial court acted without reference to any guiding rules or principles. Shepardize - Narrow by this HeadnoteCivil Procedure > Appeals > Reviewability of Lower Court Decisions > Preservation for Review
HN6 Whenever testimony is erroneously excluded by ruling of a trial court, an offering party must make a bill of exceptions in order to preserve error on appeal. Shepardize - Narrow by this Headnote
Whenever testimony is erroneously excluded by ruling of a trial court, an offering party must make a bill of exceptions in order to preserve error on appeal. Shepardize - Narrow by this HeadnoteFamily Law > Paternity & Surrogacy > General Overview
Counsel: For Appellant: Hon. J. K. 'Rusty' Wall, Law Office of J. K. Rusty Wall, P.O. Box 50123, Midland, TX 79710-0123, 915/682-1522.
For Appellee: Hon. Dan Morales, Attorney General of Texas, Supreme Court Building, P. O. Box, 12548, Austin, TX 78711. Hon. Rhonda A. Pressley, Assistant Attorney General, Child Support Litigation Division, P. O. Box 12017, Austin, TX 78711-2017, 512/463-2181. Hon. Lilly A. Plummer, 620 N. Grant, Suite 510, Odessa, TX 79761, 915/580-5459.
Judges: Before Panel No. 1, Larsen, McClure, and Chew, JJ.
Opinion by: ANN CRAWFORD MCCLURE
Opinion
OPINION
This is an appeal from a judgment in a suit to establish the parent-child relationship in which orders for conservatorship and support were entered. We affirm the judgment as reformed.
In 1994, the Office of the Attorney General of Texas, Child Support Litigation Division, filed suit to establish the paternity of Sabrina Alexis Martinez, who was born in Midland, Texas on January 9, 1990. In his original answer, Raymond (Sam) Martinez, Appellant, denied paternity. Parentage testing established a 99.76 percent probability of his paternity. Martinez then amended his pleadings, admitted paternity, and filed a cross-petition seeking managing conservatorship of his daughter. Specifically, he sought sole managing conservatorship or, in the alternative, joint managing conservatorship with him having the right to establish the primary residence of the child.
Following a bench trial on November 1, 1995, the court appointed Yolanda Molinar, Appellee, sole managing conservator, entered a standard possession order and set child support. During a December 29 hearing on the form of the judgment to be entered, Martinez unsuccessfully sought to reopen the evidence as to the determination of child support. At issue, in this appeal, are the trial court's failure to file separate findings of fact and conclusions of law, its refusal to appoint the parents joint managing conservators, and its denial of the motion to reopen the evidence. The Office of the Attorney General, also a designated Appellee, brings a cross-point of error seeking reformation of the judgment to include a finding of paternity.
In Point of Error No. One, Martinez argues that the judgment must be reversed because the trial court failed to issue separate written findings of fact and conclusions of law. We disagree. Martinez timely filed both an initial and reminder request for findings pursuant to TEX.R.CIV.P. 296 and 297. As a general rule, HN1
the failure of the trial court to file findings of fact constitutes error where the complaining party has complied with the requisite rules to preserve error. Wagner v. Riske, 142 Tex. 337, 342, 178 S.W.2d 117, 119 (1944); FDIC v. Morris, [401] 782 S.W.2d 521, 523(Tex.App.--Dallas 1989, no writ). There is a presumption of harmful error unless the contrary appears on the face of the record. City of Los Fresnos v. Gonzalez, 830 S.W.2d 627 (Tex.App.--Corpus Christi 1992, no writ). Thus, the failure to make findings does not compel reversal if the record before the appellate court affirmatively demonstrates that the complaining party suffered no harm. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984). Where there is only one theory of recovery or defense pleaded or raised by the evidence, there is no demonstration of injury. Guzman v. Guzman, 827 S.W.2d 445 (Tex.App.--Corpus Christi 1992, writ denied); Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Accord, Landbase, Inc. v. T.E.C., 885 S.W.2d 499, 501-02 (Tex.App.--San Antonio 1994, writ denied) (failure to file findings and conclusions harmless where the basis for the court's ruling was apparent from the record).
the failure of the trial court to file findings of fact constitutes error where the complaining party has complied with the requisite rules to preserve error. Wagner v. Riske, 142 Tex. 337, 342, 178 S.W.2d 117, 119 (1944); FDIC v. Morris, [401] 782 S.W.2d 521, 523(Tex.App.--Dallas 1989, no writ). There is a presumption of harmful error unless the contrary appears on the face of the record. City of Los Fresnos v. Gonzalez, 830 S.W.2d 627 (Tex.App.--Corpus Christi 1992, no writ). Thus, the failure to make findings does not compel reversal if the record before the appellate court affirmatively demonstrates that the complaining party suffered no harm. Las Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 256 (Tex. 1984). Where there is only one theory of recovery or defense pleaded or raised by the evidence, there is no demonstration of injury. Guzman v. Guzman, 827 S.W.2d 445 (Tex.App.--Corpus Christi 1992, writ denied); Vickery v. Texas Carpet Co., Inc., 792 S.W.2d 759 (Tex.App.--Houston [14th Dist.] 1990, writ denied). Accord, Landbase, Inc. v. T.E.C., 885 S.W.2d 499, 501-02 (Tex.App.--San Antonio 1994, writ denied) (failure to file findings and conclusions harmless where the basis for the court's ruling was apparent from the record).
HN2 The test for determining whether the complainant has suffered harm is whether the circumstances of the case would require an appellant to guess the reason or reasons that the judge has ruled against it. Sheldon Pollack Corp. v. Pioneer Concrete, 765 S.W.2d 843, 845(Tex.App.--Dallas 1989, writ denied); Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex.Civ.App.--Beaumont 1977, writ ref'd n.r.e.). Any guessing game here is eliminated by inclusion of the court's findings as recitals in the judgment, as opposed to separate findings and conclusions. This is an acceptable practice under the rules since it serves the underlying purpose of Rule 296. Leon Ltd v. Albuquerque Commons Partnership, 862 S.W.2d 693, 703 (Tex.App.--El Paso 1993, no writ),citing Farr v. Sun World Savings Ass'n, 810 S.W.2d 294, 298 (Tex.App.--El Paso 1991, no writ).The issue, then, is whether there are disputed facts to be resolved. FDIC v. Morris, 782 S.W.2d at 523.
The test for determining whether the complainant has suffered harm is whether the circumstances of the case would require an appellant to guess the reason or reasons that the judge has ruled against it. Sheldon Pollack Corp. v. Pioneer Concrete, 765 S.W.2d 843, 845(Tex.App.--Dallas 1989, writ denied); Fraser v. Goldberg, 552 S.W.2d 592, 594 (Tex.Civ.App.--Beaumont 1977, writ ref'd n.r.e.). Any guessing game here is eliminated by inclusion of the court's findings as recitals in the judgment, as opposed to separate findings and conclusions. This is an acceptable practice under the rules since it serves the underlying purpose of Rule 296. Leon Ltd v. Albuquerque Commons Partnership, 862 S.W.2d 693, 703 (Tex.App.--El Paso 1993, no writ),citing Farr v. Sun World Savings Ass'n, 810 S.W.2d 294, 298 (Tex.App.--El Paso 1991, no writ).The issue, then, is whether there are disputed facts to be resolved. FDIC v. Morris, 782 S.W.2d at 523.
We conclude that the order of the trial court contains findings that properly identify the basis of the court's ruling. Although recognizing that the 1995 amendments to the Texas Family Code 1provide for a rebuttable presumption that joint managing conservatorship is in a child's best interest, the court specifically found that the presumption was rebutted "because such appointment of the biological parents as joint managing conservators would significantly impair Sabrina Alexis Martinez's physical health and emotional development." 2 Judging by Martinez's argument in Point of Error No. Two, he thoroughly understands the basis of the court's order, has not been required to guess the reason or reasons supporting the trial court's decision, and was not prevented from properly presenting his case on appeal. Point of Error No. One is overruled.
In Point of Error No. Two, Martinez argues that the trial court erred by failing to appoint the parties as joint managing conservators of Sabrina. HN3 The Family Code recites that the public policy of this State is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a stable environment for the child; and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. TEX.FAM.CODE ANN. § 153.001 (a)(Vernon 1996). The best interest of the child shall always be the primary [402] consideration of the court in determining conservatorship and possession. TEX.FAM.CODE ANN. § 153.002 (Vernon 1996). The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservatorship. TEX.FAM.CODE ANN. § 153.003 (Vernon 1996). The trial court may appoint a sole managing conservator or joint managing conservators. TEX.FAM.CODE ANN. § 153.005(a)(Vernon 1996). HN4 Section 153.031(b) creates a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. TEX.FAM.CODE ANN. § 153.031(b) (Vernon 1996). However, in determining whether joint managing conservatorship is in the best interest of the child, the court is to consider the following factors:
The Family Code recites that the public policy of this State is to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; to provide a stable environment for the child; and to encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage. TEX.FAM.CODE ANN. § 153.001 (a)(Vernon 1996). The best interest of the child shall always be the primary [402] consideration of the court in determining conservatorship and possession. TEX.FAM.CODE ANN. § 153.002 (Vernon 1996). The trial court shall consider the qualifications of the parties without regard to their marital status or to the gender of the party or the child in determining which party to appoint as sole managing conservator, whether to appoint joint managing conservators, and the terms and conditions of conservatorship. TEX.FAM.CODE ANN. § 153.003 (Vernon 1996). The trial court may appoint a sole managing conservator or joint managing conservators. TEX.FAM.CODE ANN. § 153.005(a)(Vernon 1996). HN4 Section 153.031(b) creates a rebuttable presumption that the appointment of the parents as joint managing conservators is in the best interest of the child. TEX.FAM.CODE ANN. § 153.031(b) (Vernon 1996). However, in determining whether joint managing conservatorship is in the best interest of the child, the court is to consider the following factors:TEX.FAM.CODE ANN. § 153.134 (Vernon 1996).. whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators;. the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest;. whether each parent can encourage and accept a positive relationship between the child and the other parent;
The record reveals that the parties could not agree on marriage or commitment, whether Martinez was Sabrina's father, the amount of child support, the visitation schedule, the needs of the child, or the need for a civil relationship for the child's sake. The evidence also shows that neither party could encourage and accept a positive relationship between the child and the other parent. Evidently, Martinez harbored some belief that he and Molinar could not cooperate or work together for Sabrina's benefit since he sought to be appointed sole managing conservator. Joint managing conservatorship was an alternative and secondary request.
At trial, Martinez claimed that early on, he did not know whether he was Sabrina's father, yet the record reflects that he did not object to her name being stated as "Martinez" on the birth certificate. He also participated in Sabrina's baptism, announced himself as her father during the ceremony, and signed the baptismal records. 3 The couple separated when Sabrina was six months' old. Molinar testified that a paternity action filed in 1992 was dismissed because Martinez threatened a custody suit. 4 When she asked him if he had been served in connection with the 1994 suit, Martinez "threatened me to file for custody and told me that he was going to take her, that he was never going to give me a penny." Indeed, Martinez did not deny his efforts to avoid paying support. Even after the parentage testing established his paternity in November of 1994, Martinez paid no support in November or December of 1994 or January of 1995. An order entered in February 1995 set child support and provided for wage withholding, but despite the fact that Martinez recognized that the support was not yet being withheld, he paid no support in February, March, or April of 1995. Instead of paying the arrearage to Molinar, he deposited the money into his attorney's trust account until the conclusion of the trial. Further, when asked why he paid a few medical care providers directly rather than giving money directly to Molinar, Martinez answered, "I've never believed in doing that."
[403] The record also reflects that Martinez has a son from a prior non-marital relationship. It was necessary for the mother of that child to bring a paternity action against him before he assumed financial responsibility. As for his relationship with his son, Martinez admitted that he had not visited with him in two or three years, "maybe a little longer," and that he had not once been to visit the boy's school. Thus, there is evidence by which the trial court could determine that Sabrina's physical health and emotional development would be impaired by appointing as a joint managing conservator a parent who had not taken an active interest in the child in her early years, whose relationship with the child was relatively recent, 5 whose relationship with another child was strained at best, and whose motivation for seeking custody was clearly at issue.
The matter of determining who should be appointed managing conservator of Sabrina Alexis Martinez was addressed to the sound discretion of the trial judge as the trier of fact. SeeAltamirano v. Altamirano, 591 S.W.2d 336, 337 (Tex.Civ.App.--Corpus Christi 1979, no writ). The trial judge was in a better position to determine what will be in the best interest of Sabrina since he faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent. Id. at 338. HN5 His judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. Id., citing Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966); Mumma v. Aguirre, 364 S.W.2d 220 (Tex. 1963); Wilkinson v. Evans,515 S.W.2d 734 (Tex.Civ.App.--Dallas 1974, writ ref'd n.r.e.); Tye v. Tye, 532 S.W.2d 124(Tex.Civ.App.--Corpus Christi 1975, no writ). The test for abuse of discretion in custody matters is whether the trial court acted without reference to any guiding rules or principles. Graves v. Graves,916 S.W.2d 65, 68 (Tex.App.--Houston [1st Dist.] 1996, n.w.h.), citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ).
His judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. Id., citing Herrera v. Herrera, 409 S.W.2d 395 (Tex. 1966); Mumma v. Aguirre, 364 S.W.2d 220 (Tex. 1963); Wilkinson v. Evans,515 S.W.2d 734 (Tex.Civ.App.--Dallas 1974, writ ref'd n.r.e.); Tye v. Tye, 532 S.W.2d 124(Tex.Civ.App.--Corpus Christi 1975, no writ). The test for abuse of discretion in custody matters is whether the trial court acted without reference to any guiding rules or principles. Graves v. Graves,916 S.W.2d 65, 68 (Tex.App.--Houston [1st Dist.] 1996, n.w.h.), citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ).
On the record before us, we cannot say that the trial judge abused his discretion when he found, pursuant to the pleadings, evidence, and statements of counsel, that it would be in Sabrina's best interest for Molinar to be appointed sole managing conservator. See Altamirano, 591 S.W.2d at 338, citing Fergus v. Fergus, 547 S.W.2d 51 (Tex.Civ.App.--Eastland 1977, no writ); Johnson v. Johnson, 536 S.W.2d 620 (Tex.Civ.App.--Tyler 1976, no writ); Tye, 532 S.W.2d at 124; Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App.--El Paso 1975, no writ). Appellant's Point of Error No. Two is overruled.
In Point of Error No. Three, Martinez complains that the trial court abused its discretion in disallowing his request to reopen the evidence concerning the issue of child support. Trial on the merits was conducted on November 1, 1995. The trial court announced its ruling in a letter dated November 3. Martinez and Molinar disagreed on the precise amount of child support that the trial court had ordered. 6 Martinez moved to enter judgment, advising the court of the disagreement and attaching a proposed judgment with the income findings and amount of [404] child support left blank. At the hearing on the motion to enter, the trial court denied Martinez's oral request to admit additional evidence relating to his income for the year. This additional evidence was allegedly an updated pay stub and a monthly expense sheet. We are unable to determine whether the additional evidence was conclusive or decisive because Martinez did not, by bill or exception or otherwise, make a record of the evidence for appeal.
HN6 Whenever testimony is erroneously excluded by ruling of the trial court, the offering party must make a bill of exceptions in order to preserve error on appeal. Ramirez v. Ramirez, 873 S.W.2d 735, 741 (Tex.App.--El Paso 1994, no writ), citing McInnes v. Yamaha Motor Corp.,U.S.A., 673 S.W.2d 185, 187 (Tex. 1984), cert. denied, 469 U.S. 1107, 105 S. Ct. 782, 83 L. Ed. 2d 777 (1985); see also Texas Elec. Utilities Co. v. Rocha, 762 S.W.2d 275, 277 (Tex.App.--El Paso 1988, writ denied). Because the evidence is not part of the record, we cannot determine whether the trial court erred in refusing to reopen the case. See In re the Estate of Johnson, 886 S.W.2d 869, 873 (Tex.App.--Beaumont 1994, no writ)(a challenge to court's refusal to reopen overruled because no bill of exception was perfected; this point is not reviewable in this state of the record); Walton Neon Co. Inc. v. Travel-Tex Corp., 482 S.W.2d 934, 937 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.)(it was appellant's duty, if error was to be preserved, to offer to call witness to the stand for the purpose of making a bill of exception); see also Russell v. Russell, 443 S.W.2d 569 (Tex.Civ.App.--El Paso 1969, no writ); Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App.--Dallas 1965, writ ref'd. n.r.e.); McRoy v. Riverlake Country Club, 426 S.W.2d 299, 305 (Tex.Civ.App.--Dallas 1968, writ ref'd n.r.e.). ("However, in this case we cannot reach the question whether there was an abuse of discretion in the court's refusal. Appellant did not make the showing required on motion to reopen."). Because its absence from the record precludes a decision as to whether the exclusion of this evidence was reasonably likely and probably did cause rendition of an improper judgment, the judgment cannot be reversed on this ground.
Whenever testimony is erroneously excluded by ruling of the trial court, the offering party must make a bill of exceptions in order to preserve error on appeal. Ramirez v. Ramirez, 873 S.W.2d 735, 741 (Tex.App.--El Paso 1994, no writ), citing McInnes v. Yamaha Motor Corp.,U.S.A., 673 S.W.2d 185, 187 (Tex. 1984), cert. denied, 469 U.S. 1107, 105 S. Ct. 782, 83 L. Ed. 2d 777 (1985); see also Texas Elec. Utilities Co. v. Rocha, 762 S.W.2d 275, 277 (Tex.App.--El Paso 1988, writ denied). Because the evidence is not part of the record, we cannot determine whether the trial court erred in refusing to reopen the case. See In re the Estate of Johnson, 886 S.W.2d 869, 873 (Tex.App.--Beaumont 1994, no writ)(a challenge to court's refusal to reopen overruled because no bill of exception was perfected; this point is not reviewable in this state of the record); Walton Neon Co. Inc. v. Travel-Tex Corp., 482 S.W.2d 934, 937 (Tex.Civ.App.--Corpus Christi 1972, writ ref'd n.r.e.)(it was appellant's duty, if error was to be preserved, to offer to call witness to the stand for the purpose of making a bill of exception); see also Russell v. Russell, 443 S.W.2d 569 (Tex.Civ.App.--El Paso 1969, no writ); Dorn v. Cartwright, 392 S.W.2d 181 (Tex.Civ.App.--Dallas 1965, writ ref'd. n.r.e.); McRoy v. Riverlake Country Club, 426 S.W.2d 299, 305 (Tex.Civ.App.--Dallas 1968, writ ref'd n.r.e.). ("However, in this case we cannot reach the question whether there was an abuse of discretion in the court's refusal. Appellant did not make the showing required on motion to reopen."). Because its absence from the record precludes a decision as to whether the exclusion of this evidence was reasonably likely and probably did cause rendition of an improper judgment, the judgment cannot be reversed on this ground.
Martinez attempts to justify his failure to make a bill of exception by stating that he did not wish to risk arousing the anger of the trial court. If fear of vexing the trial court excuses the failure to preserve error, the rules requiring preservation would be eviscerated. Point of Error No. Three is overruled.
By cross-point of error, the Office of the Attorney General requests that we reform the final judgment to include a finding of paternity and to order that the parent-child relationship is established between Raymond S. Martinez and Sabrina Alexis Martinez. The judgment contains a finding that "the biological parents of the minor child have been previously established in a Family Code Title 4 action." However, our review of the record reflects that the prior order was designated a Pretrial Order in Paternity Suit. By its terms, the court found that at least 99 percent of the male population is excluded from the possibility of being Sabrina's father, ordered the burden of proof shifted to Martinez to show that he is not Sabrina's biological father, and appointed Molinar as the temporary managing conservator. The order was evidently entered in compliance withTEX.FAM.CODE ANN. § 160.105 (Vernon 1996) which requires a pre-trial conference in a parentage suit. The order does not contain a declaration that Martinez is Sabrina's biological father. Section 160.006 mandates that we grant the cross-point:
(a) On a verdict of the jury, or on a finding of the court if there is no jury, the court shall render a final order declaring whether an alleged parent is the biological parent of the child.
[405] After the pre-trial conference, Martinez accepted the validity of the parentage testing and filed of record an affidavit admitting paternity. We do not believe that either the pre-trial order or the affidavit comply with Section 160.006. Accordingly, we reform the judgment to include a finding that Raymond S. Martinez is the biological father of Sabrina Alexis Martinez and that the parent-child relationship is established between them.
Having overruled all of Martinez's points of error, we affirm the judgment of the trial court as reformed.
/s/ ANN CRAWFORD MCCLURE, Justice
Larsen, McClure, and Chew, JJ.