OPINION
This is a habeas corpus case. Relator alleges he is illegally confined because he does not have the status of a "parent" over the child Keisha Riley and thus an agreed order concerning child support is not enforceable by contempt. In December, 1978, Mrs. Virginia Traylor, the maternal grandmother of Keisha Riley, filed an original petition alleging Abraham Riley, Jr., was the natural father of the child and seeking the managing conservatorship. An agreed decree was entered in June 1981, wherein Mrs. Traylor was appointed the managing conservator, and Abraham Riley, Jr., was appointed the possessory conservator with certain periods of access to the child. In addition, the following language was in the decree:
"IT IS DECREED that ABRAHAM RILEY, JR., shall continue to pay to VICTORIA TRAYLOR child support in the amount of $100.00 per month, with the next payment being due and payable on the 1st day of July, 1981, and a like payment being due and payable on the same day of each month thereafter until the child reaches the age of 18 years or is otherwise emancipated."
On May 10, 1984, Mrs. Traylor filed a petition for notice to show cause for failing to pay the support payments. On June 18, 1984, a hearing was held. Mr. Riley was found to be in contempt and his punishment assessed at six months confinement in the county jail. Imposition of the order of commitment was withheld, however, and he was placed on probation for a period of five years. The conditions of probation included, among other things, that Mr. Riley "pay entire arrearage of $3000.00 on or before September 18, 1984." On October 11, 1984, a motion to revoke Mr. Riley's probation was filed, a warrant for his arrest was issued on October 17th and he was arrested on October 19th. On October 29, 1984, a hearing was held, the court found Mr. Riley had willfully violated his probation and revoked same. A commitment was issued that same day committing Mr. Riley to jail for a period of six months and thereafter until he had paid the $3000.00 arrearage, court costs and attorney's fees.
Application for writ of habeas corpus was filed in this court on February 20, 1985.
Mr. Riley's argument is that he has not been shown to be a "parent" of the minor child; only "parents" may be ordered to support children; and thus the decree of June 1981, imposes only a contractual obligation upon him.
The Texas Family Code (Vernon 1975) provisions concerning a parent are:
*Page 18Section 11.01(3): "Parent" means the mother, a man as to whom the child is legitimate, or an adoptive mother or father, but does not include a parent as to whom the parent-child relationship has been terminated.
Section 12.02: (a) A child is the legitimate child of his father if the child is born or conceived before or during the marriage of his father and mother. (b) A child is the legitimate child of his father if at any time his mother and father have attempted to marry in apparent compliance
with the laws of this state or another state or nation, although the attempted marriage is or might be declared void, and the child is born or conceived before or during the attempted marriage. (c) A child is the legitimate child of a man if the man's paternity is established under the provisions of Chapter 13 of this code.
Mr. Riley alleges there has never been a judicial finding of any of the factors which would create the parent-child relationship. Specifically, the June 1981 decree makes no finding of paternity or any parent-child relationship. For whatever reasons Mrs. Traylor did not seek or pursue such a finding, we do not know. But, all relief sought and not granted was denied by the trial court.
An analogous case is Mata v. Moreno, 601 S.W.2d 58 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). Here the court held that a consent judgment which fails to predicate the payment of child support upon either an express or implied finding that a parent-child relationship exists is not subject to a modification. They further held that the Family Code empowers a court to order an individual to pay child support only if it determines that a parent-child relationship exists. Their reasoning was based on Section 14.05(a), of the Texas Family Code (Vernon Supp. 1985), which states:
(a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree. In determining the amount of child support, the court shall consider all appropriate factors, including but not limited to the needs of the child, the ability of the parents to contribute to the child's support, any financial resources available for the support of the child, and any schedules, guidelines, and formulas adopted by the court. The court by local rule may establish and publish schedules, guidelines, and formulas to be used by the court in determining the amount and manner of child support.
The language of the Family Code is clear and unambiguous. A court may only order parents to make support payments. There may have been ample evidence for the court to make a finding that Mr. Riley was a parent, if so, Mrs. Traylor may be entitled to a bill of review to have the decree reformed,see Johnson v. Johnson, 579 S.W.2d 30 (Tex.Civ.App. — Beaumont 1979, no writ). There may have been judicial admissions made by Mr. Riley which would allow a successful paternity action by Mrs. Traylor. This court is bound by the record and instruments before it. The decree of June 1981 makes no finding, either express or implied, that Mr. Riley is a parent of the minor child. It is not enforceable by contempt.
The dissent places great store in the pleading of Mr. Riley.1 No findings of fact or conclusions of law were filed at the time the June, 1981 decree was entered. There was no statement of facts before this court. The trial court had all the pleadings and evidence before it and still did not make a finding that Abraham Riley was a parent of the child. Yet, the dissent would go behind the decree and make findings based upon the pleadings.
The dissent has found an implied finding that Mr. Riley was a parent "by the style and heading of the original decree." He further finds that the trial judge made an express finding that Mr. Riley was a parent. This express finding is made based upon the language which appoints Mrs. Traylor the managing conservator. Following this skewed logic, these points would necessarily be an implied and express finding that Mrs. Traylor was a parent. Neither conclusion can be drawn. *Page 19
We find nothing judicial, good or humorous about the dissent characterizing this opinion and Ex Parte Seymour, 688 S.W.2d 139 (Tex.App.-Beaumont, 1985)2 as "technical reasoning". If refusing to erode the rights guaranteed each and every citizen by the United States and Texas Constitutions is "technical reasoning", then so be it.
The relief is granted and the relator ordered released from confinement.