concurring and dissenting.
I agree with the majority opinion that the trial court’s judgment which awards attorney fees to Lisa which are properly alloca-ble to her attorney’s representation of Gary is error. However, I would sustain that portion of the trial court’s judgment which failed to grant Lisa retroactive child support to the date of Mallory’s birth.
The' majority goes to great lengths to misconstrue a statute on an issue which is not before us. During oral argument Lisa’s attorney candidly admitted that no constitutional issue was raised in a point of error. The record does not indicate that the constitutional issue was expressly presented to the trial court and Lisa’s attorney has not briefed this issue for our consideration. Opposing counsel was not even given the opportunity to address the arguments upon which the majority bases its opinion. An appellate court may not review errors that have not been assigned by a party or a point of error. Prudential Ins. Co. of America v. J.B. Franclen, Inc., 710 S.W.2d 568, 569 (Tex.1986).
The majority opinion attempts to address the constitutional issue under the pretext of statutory interpretation. The rule in Lovejoy v. Lillie, 569 S.W.2d 501, 503 (Tex.Civ.App.—Tyler 1978, writ ref’d n.r.e.), which permits a court to consider whether a statute is unconstitutional when its constitutionality is never challenged only applies when the statute’s unconstitutionality is “obvious and apparent.” Section 13.42 is unambiguous and clear in its intent. The majority opinion cites State v. Shoppers World, Inc., 380 S.W.2d 107, 111 (Tex.1964), for the proposition that a statute must not be given the one of two reasonable interpretations which will render it unconstitutional. I submit that the majority opinion gives a tortured interpretation of section 13.42 of the Texas Family Code. Tex.Fam.Code Ann. § 13.42 (Vernon Supp. 1990). The guiding rule of statutory interpretation is to ascertain the legislature’s intent. Shoppers World, 380 S.W.2d at 110. The legislature has unequivocally expressed its intent to award child support only back to the date of the filing of the petition and not before.
Lisa argues that the trial court erred in concluding as a matter of law that section 13.42(a) of the Texas Family Code prevents the awarding of a lump sum amount for child support retroactive to the date of Mallory’s birth. Section 13.42 of the Texas Family Code reads as follows:
§ 13.42 Conservatorship, Support, Fees, and Payments
(a) In a suit in which a determination of paternity is sought, the court may provide for the managing and possessory conservatorship and support of and access to the child; except that no alleged father denying paternity may be required to make any payment for the support of the child until paternity is established. On a finding of paternity, the court may order support retroactive to the time of the filing of the suit and, on a proper showing, may order a party to pay an equitable portion of all prenatal and postnatal related health care expenses of the mother and child.
(b) In addition to the payment authorized by Section 14.05 of this code, the court may award reasonable attorney’s fees incurred in the suit.
(c) A payment ordered under Subsection (b) of this section is enforceable as *838provided in Subchapter B of Chapter lj of this code.
(d) All of the provisions of Section 11.11 of this code are applicable to an alleged or probable father petitioning to have his paternity of a child adjudicated or who admits paternity in pleadings filed with the court.
Tex.Fam.Code Ann. § 13.42 (Vernon Supp. 1990) (footnote omitted) (emphasis added). The emphasized language was added by the 1987 amendments to the Family Code. Prior to 1987 the case law in Texas allowed for the award of child support retroactive to the date of the child’s birth. Aquilar v. Barker, 699 S.W.2d 915, 917 (Tex.App.—Houston [1st Dist.] 1983, no writ); Adams v. Stotts, 667 S.W.2d 798, 799-800 (Tex.App.—Dallas 1983, no writ). Lisa argues that the 1987 amendments to section 13.42 of the Texas Family Code did not change the existing case law, but rather, affirmed it. Lisa refers us to the commentary of Professor Jack Sampson on the 1987 amendments to section 13.42 wherein he states:
The language added to Subsection (a) providing for retroactive child support in a paternity suit merely codifies existing caselaw. Aguilar v. Barker, 699 S.W.2d 915 (Tex.App.—Houston [1st Dist.] 1985); Adams v. Stotts, 667 S.W.2d 798 (Tex.App.—Dallas 1983).
It should be noted that there is no conflict between this provision and § 12.06 that specifies the presumed father, i.e., the husband of the mother, may be ordered to pay temporary child support until it is finally determined whether he is, in fact, the biological father.
Under new Subsection (d), if the alleged or probable father is seeking to have himself declared to be a parent, he can be required to bear the burden of temporary child support and come within the sweep of other temporary orders. The court may take the petitioner at his word with regard to his intention “to step forward, willing and able to support the child.”
Sampson, 1987 Legislation Affecting Family Law Practice — The 70th Legislature: Regular Session — , Vol. 87-4, p. 30, State Bar Section Reports: Family Law 1987. Lisa also argues that under section 14.05(a) the court may order either or both parents to make lump sum payments for the support of the child until he or she is eighteen years of age, and that therefore the court may also award retroactive lump sum payments of child support to the date of the child’s birth. Lisa argues that when section 13.42(a) is read in conjunction with sections 13.09 and 14.05(a), an award of child support retroactive to the date of birth of Mallory is allowed. However, the legislature has considered this issue and struck a different balance. I read section 13.42(a) to have legislatively overruled the holdings in the Adams and Aguilar cases. The clear language of section 13.42(a) states that the “court may order support retroactive to the time of the filing of the suit and ... may order a party to pay an equitable portion of all prenatal and postnatal related health care expenses of the mother and child.” This section does not authorize child support prior to the filing of the paternity suit. The 1987 amendments to section 13.42 address the precise issues raised in Adams and Aguilar. The apparent concern of the legislature in amending section 13.42 was that under existing case law the alleged father would not voluntarily come forth and take on the responsibility of supporting his child if he knew that he was subjecting himself to a large award of retroactive child support. The concern of the legislature is also that the father be able to support his child in the present and in the future rather than being burdened with past debt. Whether the legislature has chosen the best means of encouraging fathers to own up to their responsibilities and provide for the support of their children may be questioned, but the 1987 amendments to section 13.42 have authoritatively resolved this matter against Lisa’s position. I would overrule Lisa’s sole point of error.