In the Interest of R.J.P., a Child

J. HARVEY HUDSON, Justice,

dissenting.

The majority holds that res judicata and collateral estoppel may bar a “father” from relitigating his paternity. Certainly, there is precedent for this position. However, because such precedent is neither persuasive nor controlling upon this court, I must respectfully dissent.

The record shows Anita and Roosevelt were married in 1988. They separated in 1991. Four months after separating, R.J.P. was born. In 1998, while still married, but living apart, Anita and Roosevelt entered into an agreed child support order in which Roosevelt was identified as the father of R.J.P. Pursuant to this order, Roosevelt began paying monthly child support. In 2003, the trial court increased the monthly child support obligation and entered an order withholding earnings to satisfy the child support obligation. Roosevelt then petitioned the trial court to terminate the order for wage withholding based on the fact that he is not the biological father of R.J.P. Roosevelt also filed a petition for a decree of divorce in which he again asserted that he is not the biological father of R.J.P. To support his contention, R.J.P. tendered a DNA Parentage Test Report made by DNA Diagnostic Center. Thereafter, the trial court ordered Anita and Roosevelt to submit themselves for DNA parentage testing at a lab designated by the court. Roosevelt complied with the court’s order, but Anita did not.

In 2004, the trial court entered a decree of divorce in which it acknowledged that Roosevelt had previously been adjudicated as the father of R.J.P. Accordingly, Roosevelt was named the possessory conservator of the child. However, the trial court did not order Roosevelt to make child support payments.

Although paternity, or the lack thereof, may now be scientifically determined to a virtual certainty, courts have historically disfavored suits to disestablish paternity even when absence, impotence, or sterility have seemed to conclusively support the plaintiff’s cause. Social policy considerations such as protecting the institution of marriage or the welfare of children have taken precedence over truth and equity. See Mary R. Anderlik, Disestablishment Suits: What Hath Science Wrought?, 4 J. CenteR for Families 3, at 5 (2003). Other *188courts have emphasized the need for finality. See In re T.S.S., 61 S.W.3d 481, 485 (Tex.App.-San Antonio 2001, pet. denied) (“Texas courts are not free to adopt a rule that an adjudicated father may be relieved of his support obligations anytime he comes forward with DNA evidence post-decree that tends to exclude him as the biological father.”); Wise v. Fryar, 49 S.W.3d 450, 456 (Tex.App.-Eastland 2001, pet. denied), cert. denied, 534 U.S. 1079, 122 S.Ct. 808, 151 L.Ed.2d 694 (2002) (holding bill of review was not available to challenge paternity where the issue of paternity was resolved in a final, unappealed judgment).

However commendable the goal of protecting marriage, that institution is founded upon fidelity and trust. Once the confidence of a spouse is betrayed, reconciliation is difficult. Moreover, the welfare of children should not fall upon one who is merely a victim of fraud. Finally, reliance upon the doctrines of collateral estoppel and res judicata seems inappropriate in the context of a parent-child relationship. For example, in a suit affecting the parent-child relationship the trial court maintains continuing, exclusive jurisdiction over the parties and has the authority to modify the terms of that relationship as changing circumstances may require. To require a husband to challenge the filial relationship of what he believes to be his children (or forever waive the issue) would seem to needlessly encourage suits that must, of necessity, drive a wedge between father and child, threaten the already fragüe sense of security of chüdren caught up in the midst of a divorce, and perhaps forever damage the psyche of both the father and his chüdren.

Here, the trial court did not disestablish paternity. Rather, the court modified the former husband’s child support obligation. In making this decision, the trial court was vested with broad discretion. The Family Code provides that the trial court “may” order either or both parents to support a child. Tex. Fam.Code Ann. § 154.001(a) (Vernon 2002). Whüe the trial court “may” consider the statutory child support guidelines, the court “may” also consider any “other relevant evidence in addition to the factors listed in the guidelines.” Tex. FaM.Code Ann. § 156.402 (Vernon 2002). The court “may,” in fact, determine that the application of the guidelines would be unjust or inappropriate under the circumstances. Tex. Fam.Code Ann. § 154.122(b) (Vernon 2002).

It is well established that matters regarding the exercise of discretion are within the sole province of the trial court, and the appellate court may not substitute the discretion of the trial court with its own. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex.App.-Corpus Christi 2001, no pet.). If there is some probative and substantive evidence to support the judgment, the trial court did not abuse its discretion. In re P.J.H., 25 S.W.3d 402, 405 (Tex.App.-Fort Worth 2000, no pet.).

I would find the trial court did not abuse its discretion in deleting future chüd support. Accordingly, I must respectfully dissent.