In the Interest of R.G.S. v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-22-00425-CV
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IN THE INTEREST OF R.G.S.

________________________________________________________________________

On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 22-12-16328-CV
________________________________________________________________________

MEMORANDUM OPINION

Jennifer appeals the trial court’s denial of her Petition to Adjudicate Parentage

as to R.G.S. 1, 2 In two issues on appeal, Jennifer argues her claim for parentage is

1To protect the privacy of the child involved in this appeal, we identify the

child by her initials, and appellant and appellee by their first names. See Tex. Fam.
Code Ann. § 109.002(d).
2This case is part of a series of appeals between the same parties that we will

address in separate opinions. In cause number 09-22-00384-CV we address the
divorce between Jennifer and Amber. In cause number 09-23-00308-CV we address
Jennifer’s Petition for Adoption regarding R.G.S.
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not barred by res judicata and denying her parentage violates her constitutional

rights. For the reasons below, we affirm.

Background

Amber and Jennifer married in July 2015. In 2016, Amber and Jennifer signed

an agreement with Pacific Reproductive Services pursuant to which Amber

underwent a reproductive procedure using a Pacific donor’s sperm, and in 2017,

Amber gave birth to R.G.S. In October 2020, Amber filed for divorce, identifying

R.G.S. as a child born of the marriage. 3 On April 26, 2021, the parties appeared

before the trial court to finalize their divorce/SAPCR in accordance with a Mediated

Settlement Agreement (“MSA”), one of the terms of which was that Jennifer was to

be adjudicated as a parent of R.G.S. Ten days prior to the hearing, the trial court had

asked the attorneys to provide briefing on the issue of whether the court had the

ability “to adjudicate a second mom.” Prior to the hearing, Jennifer filed a First

Amended Original Counterpetition wherein she asked the court to adjudicate

parentage based on Texas Family Code section 160.106 and a case from our sister

court, Treto v. Treto, 622 S.W.3d 397 (Tex. App.—Corpus Christi 2020, no pet.)

(construing Pavan v. Smith, 582 U.S. 563 (2017) to provide “the ancillary benefits

3The divorce was filed in the 418th District Court in Montgomery County

under cause number 20-10-12649 with the style, “In the Matter of the Marriage of
Amber [] and Jennifer [] and in the Interest of [R.G.S.]” and will be referred to as
“the divorce/SAPCR” (a “SAPCR” is a suit affecting the parent-child relationship).
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of a same-sex marriage, including the determination of maternity for the non-

gestational spouse of a child born to the marriage.”); see also Tex. Fam. Code Ann.

§ 160.106.

At the April 26, 2021 hearing, after questioning the attorneys about whether

there was legal authority indicating the trial court could adjudicate Jennifer as a

parent, the trial court put the case “on hold” and instructed the attorneys to “talk and

decide what you are asking me to do today.” When the court went back on the record,

it noted that it had been presented a proposed Agreed Final Decree of Divorce which

had been filed at 10:37 that morning, and which had been signed by both attorneys

and both parties. Jennifer and Amber both testified at the hearing. Jennifer provided

testimony regarding her actual care, control, and possession of R.G.S. during her

marriage to Amber, and requested that she be named a non-parent conservator if the

trial court decided not to adjudicate her as a parent of R.G.S.

At the conclusion of the hearing, the trial court announced its rulings,

including, “I do find [Jennifer] to have standing pursuant 102.003, Subsection 9. I

am confirming [Amber] as the mother of the child. I am not adjudicating [Jennifer]

as a parent of the child.” The trial court also announced it was approving the

remainder of the parties’ agreements pursuant to the MSA and that it was signing

the proposed divorce decree that had been filed that morning. Jennifer did not object.

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Consistent with the trial court’s pronouncement, the Agreed Final Decree of Divorce

includes the following language which is relevant to the issues in this appeal:

Child of the Marriage

The Court finds that [Amber] is the parent of the following child:

Name: [R.G.S.]

[. . .]

The Court finds no other children of the marriage are expected.

Standing

The Court finds that JENNIFER [] has standing to bring a Suit
Affecting the Parent-Child Relationship regarding the child pursuant to
Section 102.003(9) of the Texas Family Code.

[. . .]

Relief Not Granted

IT IS ORDERED AND DECREED that all relief requested in
this case and not expressly granted is denied. This is a final judgment,
for which let execution and all writs and processes necessary to enforce
this judgment issue. This judgment finally disposes of all claims and all
parties and is appealable.

On the last page of the decree, Jennifer’s and Amber’s signatures appear under

the following language: “APPROVED AND CONSENTED TO AS TO BOTH

FORM AND SUBSTANCE.” Jennifer did not file a motion for new trial, nor an

appeal.

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Nearly six months later, in October 2021, Jennifer instituted this action by

filing an Original Petition for Adoption of a Child; or in the Alternative, Original

Petition to Adjudicate Parentage. 4 Amber filed an Original Answer and Motion to

Dismiss, arguing Jennifer’s claims are barred by the doctrines of res judicata and

collateral estoppel. On September 6, 2022, the trial court held an evidentiary hearing

after which it signed an Order Denying First Original Petition to Adjudicate

Parentage. The trial court then severed the Original Petition to Adjudicate Parentage

from the Original Petition for Adoption of a Child, making its order final and

appealable. Jennifer then filed this appeal.

Analysis

In her first issue, Jennifer argues that res judicata does not apply to her claim

for parentage because “the trial court refused to adjudicate [Jennifer’s parentage]

one way or the other[]” in the divorce/SAPCR. The doctrine of res judicata prevents

parties from relitigating matters that were already litigated in a prior lawsuit between

themselves or between those in privity with them. See Hallco Tex., Inc. v. McMullen

Cnty., 221 S.W.3d 50, 58 (Tex. 2006). The doctrine also prevents such parties from

relitigating matters that, through diligence, could have been litigated in such a prior

lawsuit. Id. “We apply the transactional approach to res judicata, which requires

4The petition was filed in the 418th District Court in Montgomery County

under cause number 22-12-16328 with the style, “In the Interest of [R.G.S.]” and is
referred to as the “claim for parentage.”
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claims arising out of the same subject matter to be litigated in a single lawsuit.” Id.

“Res judicata requires proof of three elements: ‘(1) a prior final judgment on the

merits by a court of competent jurisdiction; (2) identity of parties or those in privity

with them; and (3) a second action based on the same claims as were raised or could

have been raised in the first action.’” Rosetta Res. Operating, LP v. Martin, 645

S.W.3d 212, 225 (Tex. 2022) (quoting Amstadt v. U.S. Brass Corp., 919 S.W.2d

644, 652 (Tex. 1996)). We address each of these elements below.

With respect to the first element, we must determine whether the trial court is

a court of competent jurisdiction and whether the Agreed Final Decree of Divorce

is, in fact, a final judgment on the merits. As a district court with general jurisdiction,

the trial court had jurisdiction over the subject matter (including the divorce and the

parent-child relationship) and the parties. See Tex. Const. art. V § 8; Tex. Gov’t

Code Ann. § 24.007; Tex. Fam. Code Ann. §§ 6.305, 6.406. We conclude the trial

court was a court of competent jurisdiction.

Next, we address the issue of whether the divorce decree is a final judgment

on the merits. “A judicial decree is final when it disposes of all issues and all parties

in the record.” In the Int. of R.R.K., 590 S.W.3d 535, 540 (Tex. 2019). “Finality must

be resolved by a determination of the intention of the court as gathered from the

language of the decree and the record as a whole, aided on occasion by the conduct

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of the parties.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 203 (Tex. 2001)

(internal quotations omitted).

The divorce decree does not leave Jennifer’s status unadjudicated, as she

argues in this appeal. Immediately after finding Amber is “the parent of [R.G.S.]”

(emphasis added), the decree finds Jennifer has standing to bring a suit affecting the

parent-child relationship pursuant to Texas Family Code section 102.003(a)(9). The

decree contains language that “all relief requested in this case and not expressly

granted is denied.” The effects of this language are twofold. First, the relief denied

by this language includes the relief requested in Jennifer’s First Amended Original

Counterpetition in the divorce/SAPCR wherein she asked the court to adjudicate

parentage based on Texas Family Code section 160.106 and Treto. Secondly, outside

the context of summary judgment orders, the inclusion of such language in an order

indicates a trial court intended its order to be final. Lehmann, 39 S.W.3d at 204. By

including the additional statement, “This judgment finally disposes of all claims and

all parties and is appealable[]” the divorce decree in this case “leave[s] no doubt

about the court’s intention.” Id. at 206. The decree contains “unmistakable language

of finality[.]” In the Int. of R.R.K., 590 S.W.3d at 544. We conclude the Agreed

Final Decree of Divorce is a final judgment on the merits by a court of competent

jurisdiction, satisfying the first element of the doctrine of res judicata.

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Turning to the second element of res judicata, we compare the Agreed Final

Decree of Divorce in the divorce/SAPCR case to the Original Petition to Adjudicate

Parentage filed in this case and conclude the parties in each case are identical,

satisfying the second element of the doctrine of res judicata.

Lastly, we consider whether this action is based on claims which were, or

which could have been, raised in the first action. In her Original Petition to

Adjudicate Parentage in this case, Jennifer “seeks to formally adjudicate the parent-

child relationship between Jennifer [] and the child.” During the April 26, 2021

hearing in the divorce/SAPCR, Jennifer testified as follows:

Q. And just for clarification purposes, at the time that y’all decided to
have a child, did you sign this reproductive agreement?

A. Yes, ma’am.

Q. And is that agreement attached to our first amended counterpetition?

A. Yes, ma’am.

[. . .]

Q. And on the first amended pleadings that you filed, you have asked
the court to adjudicate parentage if they are able to do so. Is that correct?

A. Yes, ma’am.

Q. And are you using the Treto case and 160.106 under the Code for
that argument. Is that correct?

A. Yes, ma’am.

[. . .]
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Q. And if the court cannot adjudicate you as a parent, you are asking to
find that you have standing, adjudicate you as a nonparent conservator
of the child?

A. Correct.

We conclude Jennifer’s claim seeking an adjudication of parentage in this case

was included among the claims that were raised in the divorce/SAPCR, satisfying

the third element of res judicata. Thus, all three elements of the doctrine of res

judicata apply in this case. Because Jennifer’s claim for adjudication of parentage is

barred by res judicata, we overrule Jennifer’s first issue.

In her second issue, Jennifer asserts, “The trial court erred when it refused to

adjudicate Appellant as a parent when it failed to construe the Uniform Parentage

Act in gender neutral terms pursuant to U.S. Supreme Court precedent, thereby

depriving her of equal protection under the U.S. Constitution.” See Tex. Fam. Code

Ann. §§ 160.001, et seq. We conclude Jennifer’s constitutional arguments are barred

by the doctrine of res judicata.

In Fite v. King, 718 S.W.2d 345 (Tex. App.—Dallas 1986, writ ref’d n.r.e.),

Fite brought an action against King to establish paternity. Id. at 346. The trial court

granted summary judgment in King’s favor based on the one-year statute of

limitations which existed in 1981 under Texas Family Code section 13.01. Id. Fite

did not appeal from the summary judgment. Id. The following year, the United States

Supreme Court invalidated section 13.01 on the grounds it denied illegitimate
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children equal protection of the law. Id.; see also Mills v. Habluetzel, 456 U.S. 91

(1982). Fite then filed a second paternity action against King. Fite, 718 S.W.2d at

346. The trial court once again granted summary judgment, this time based on res

judicata. Id. The Dallas Court of Appeals affirmed, reasoning:

Fite acquiesced in the application of the unconstitutional act and did not
appeal. Indeed, Fite could have pursued the matter, as did the natural
mother in Mills, and secured the same holding as did the natural mother
in Mills. Instead, Fite stood by and allowed an adverse judgment to
become final. The fact that a statute upon which a judgment is based is
unconstitutional and the error correctable on appeal, does not make the
judgment void ab initio so as to render it assailable as a void judgment
in a collateral attack. We conclude, therefore, that the fact that the
statute barring the original action was declared unconstitutional, after
the judgment in the original action had become final, does not prevent
application of the doctrine of res judicata in the present case.

Id. at 347 (citing King v. King, 291 S.W. 645, 648 (Tex. Civ. App.—San Antonio

1927, writ dism’d.) (divorce decree premised on a statute classifying rents and

revenues as separate property was not subject to collateral attack as void when the

statute was subsequently declared unconstitutional)); see also A.H.D. Hous., Inc. v.

City of Hous., 316 S.W.3d 212, 222 (Tex. App.—Houston [14th Dist.] 2010, no pet.)

(concluding res judicata barred litigation of constitutional challenges to city

ordinance in state court after other constitutional challenges were rejected in federal

court).

The fact that Jennifer makes arguments in this action that were not made in

the divorce/SAPCR does not change the result, because res judicata is determined

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by comparing the claims in the second suit with the claims and permissible claims

in the first suit, not by comparing the subsidiary issues or arguments supporting those

claims. See Rosetta Res. Operating, LP, 645 S.W.3d at 226 (“Res judicata applies to

claims, not issues.”). That said, Jennifer’s counsel acknowledged during the

September 6, 2022 hearing in this case that the issues Jennifer raises in this case

could have been raised during the April 26, 2021 hearing in the divorce/SAPCR:

THE COURT: What legal authority is your client contending that this
court – let’s assume we’re back in April of 2021 -- could I have
adjudicated her as a parent of this child?

[JENNIFER’S ATTORNEY]: Your Honor, I believe that Paven [sic]
versus Smith, the U.S. Supreme Court instructs this court that it is a
matter of constitutional right that a same sex spouse has the same rights
as an opposite sex spouse to parentage. The Uniform Parentage Act
then instructs us and instructs this court that 160.703 finds that a father
who consents to a child born by assisted reproduction is the father of
the child that results from that assisted reproduction.

[. . .]

THE COURT: Are there any other legal bases under which your client
would have been claiming that this court was obligated to adjudicate
her as a parent of the child in April of 2021 other than assisted
reproduction?

[JENNIFER’S ATTORNEY]: Yes, Your Honor, I have two more
bases. The second bases [sic] is the presumption of paternity regarding
a child born during a marriage to the mother and the application of that
presumption of paternity to maternity under 160.106, and the fact that
there was no attempt to rebut that adjudication of paternity, maternity.
And then my third bases [sic] is that the mediated settlement agreement
between the parties stipulated to their agreement to adjudicate my client
as the parent of the child.

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[. . .]

THE COURT: You’re not challenging the constitutionality of any
statute. You’re challenging this court’s ruling.

[JENNIFER’S ATTORNEY]: I’m challenging this court’s ruling. I
wish that I had been here in April of 2021 to tell you about the Paven
[sic] case. (Emphasis added).

Jennifer could have raised these issues in the divorce/SAPCR, and if

unsuccessful, she could have challenged the trial court’s ruling by filing a post-trial

motion or an appeal. “Instead, [Jennifer] stood by and allowed an adverse judgment

to become final.” Fite, 718 S.W.2d at 347. We conclude the preclusive effects of the

divorce decree are not overcome by Jennifer’s assertion that the trial court erred in

the divorce/SAPCR by interpreting and applying the Uniform Parentage Act in

violation of her constitutional rights. We overrule Jennifer’s second issue.

Conclusion

Having overrule all of Jennifer’s issues on appeal, we affirm the trial court’s

judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on August 13, 2024
Opinion Delivered December 5, 2024

Before Golemon, C.J., Johnson and Chambers, JJ.

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