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Docket Number

No. 05-08-00183-CV.

Attorney(S)

Teresa Clark Evans, McClure Duffee Eitzen LLP, Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, Vickie J. Annett Ardoin, Garland, for Appellants. Angel Berbarie, Holmes, Diggs, Eames Puhl, Dallas, for Appellee.

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Smart Summary

Case Summary: In the Interest of S.J.A., C.J.A., and N.J.A., No. 05-08-00183-CV (Tex. App.—Dallas Nov. 20, 2008)

Factual and Procedural Background

The children were born in 1991, 1992, and 1995. Parents divorced in Louisiana in 2001; the Louisiana decree named Mother and Father joint managing conservators with Father having the right to determine the children's primary residence. Father and the children moved to Florida in 1997; Father married Stepmother in 2002. Father died November 6, 2006. Mother brought the children to Texas on February 3, 2007. On March 8, 2007, Stepmother filed suit in Texas seeking custody. Following a bench trial, the Texas trial court (Oct. 25, 2007) named Stepmother sole managing conservator and Mother possessory conservator. Mother appealed, raising a single issue that the trial court lacked subject matter jurisdiction.

Legal Issues Presented

Whether the Texas trial court had subject matter jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) to modify an out-of-state child custody determination.
If so, whether the statutory prerequisites of TEX. FAM. CODE ANN. §§ 152.201 and 152.203 were satisfied (i.e., whether no affected individual continued to reside in the other state and whether Texas could make an initial custody determination).

Arguments of the Parties

Appellant (Mother)

Mother's sole issue on appeal was that the Texas trial court lacked subject matter jurisdiction under the UCCJEA. (She also argued, as noted in the opinion, that Florida had home-state jurisdiction if Florida was the children's home state at some time within six months before the suit was filed, relying on In re Burk.)

Appellee (Stepmother)

Stepmother asserted rights to custody under Texas law; the record reflects she pursued the Texas proceeding and sought a child custody determination in Texas. (The opinion notes Stepmother claimed a right to a child custody determination under the laws of Texas and that she resided in Florida.)

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005)	Standard of review (de novo) for subject matter jurisdiction; UCCJEA gives priority to child's home state.	Cited for review de novo and for the proposition that home state has priority under the UCCJEA.
Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex.App.-Dallas 2006, no pet.)	Burden to allege sufficient facts to establish jurisdiction; liberally construe pleadings; consider evidence; SMJ may be raised on appeal.	Used to state burden and evidentiary/pleading principles in the jurisdictional inquiry.
In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004)	Burden to allege subject matter jurisdiction; significant-connection analysis need not require high level of physical presence.	Supported the court's approach to significant-connection jurisdiction and burden of pleading.
In re Brilliant, 86 S.W.3d 680, 684 (Tex.App.-El Paso 2002, no pet.)	Liberal construction of pleadings in favor of party invoking jurisdiction; cited in significant-connection context.	Referenced in assessing pleadings and the significant-connection inquiry.
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)	When action is grounded in statute, subject matter jurisdiction must be shown under the applicable statute.	Cited to emphasize that jurisdiction must be established under the UCCJEA statutory framework.
In re Barnes, 127 S.W.3d 843, 846-47 (Tex.App.-San Antonio 2003, orig. proceeding)	Supporting principle that statutory showing of subject matter jurisdiction is required.	Cited to reinforce statutory jurisdiction requirements under the UCCJEA.
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993)	Subject matter jurisdiction is never presumed, cannot be waived, and may be raised on appeal.	Cited for the proposition that SMJ is not presumed and may be raised at any time.
In re S.L.P., 123 S.W.3d 685, 688 (Tex.App.-Fort Worth 2003, no pet.)	Application of TEX. FAM. CODE ANN. § 152.203 (UCCJEA jurisdictional prerequisites).	Referenced in connection with statutory prerequisites for modifying another state's custody determination.
Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex.App.-Austin 2002, no pet.)	The court that makes the initial child custody determination generally retains exclusive continuing jurisdiction.	Used to explain the UCCJEA principle regarding continuing jurisdiction.
Davey v. Shaw, 225 S.W.3d 843, 855 (Tex.App.-Dallas 2007, no pet.)	An omitted unrequested element can be supplied by presumption if supported by evidence (TEX.R. CIV. P. 299).	Supported supplying an omitted finding element (re: Florida "person acting as a parent") if evidence supports it.
In re M.G.M., 163 S.W.3d 191, 196-97 (Tex.App.-Beaumont 2005, no pet.)	Texas not home state when children had been in Texas only a short time (example: 40 days).	Applied to conclude Texas was not the children's home state because they had been in Texas fewer than six months.
In re Oates, 104 S.W.3d 571, 577 (Tex.App.-El Paso 2003, orig. proceeding)	Illustrates that home-state inquiry depends on whether child lived with a parent or person acting as a parent.	Used in analysis that Florida was not the home state because no parent or person acting as a parent resided there within the statutory period.
Peterson v. Peterson, 965 So.2d 1096, 1100 (Ala.Civ.App. 2007)	Similar authority: residence with persons not qualifying as "person acting as a parent" does not create home-state jurisdiction.	Cited by analogy to support that Florida was not home state where caregivers were not persons acting as a parent.
In re Burk, 252 S.W.3d 736, 740-41 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding [mand. denied])	Discussed by Mother as authority about home-state within six months; distinguished by court based on differing facts.	Cited and distinguished; court explained Burk's facts were not analogous and thus not applicable.
In re Brown, 203 S.W.3d 888, 894 (Tex.App.-Fort Worth 2006, orig. proceeding)	If a child lacks a home state, multiple states may have significant-connection jurisdiction if statutory requirements are met.	Supporting authority for applying § 152.201(a)(2) when no home state exists.

Court's Reasoning and Analysis

The court applied the UCCJEA framework. It first addressed TEX. FAM. CODE ANN. § 152.203(2) (the second prong): whether neither the children, a parent, nor a person acting as a parent continued to reside in the other state(s). The trial court found Father deceased, that the children and Mother moved to Garland, Texas on February 3, 2007, and that Stepmother lived in Florida. The court examined whether Florida had made a child custody determination and whether Stepmother qualified as a "person acting as a parent" under Florida law. The Florida order in the record concerned child support only and no Florida court awarded custody or entered a custody determination; the Florida court made no written custody ruling when Mother sought custody after Father's death. The record contained no evidence Stepmother had been awarded a Florida custody determination or had claimed such a right under Florida law; Stepmother claimed a right under Texas law. Thus the court concluded Stepmother was not a person acting as a parent under Florida law and that neither the children, a parent, nor a person acting as a parent continued to reside in Florida or Louisiana, satisfying § 152.203(2).

Turning to initial-jurisdiction under § 152.201(a), the court determined Texas was not the children's home state because they had been in Texas fewer than six months when suit was filed. Florida likewise was not the home state because the children had not lived in Florida with a parent or person acting as a parent for six consecutive months immediately preceding the suit. Because the children had no home state, the court evaluated § 152.201(a)(2): whether the children and Mother had a significant connection with Texas and whether substantial evidence was available in Texas. The record showed Mother, Mother's fiancé, the children's half-siblings, and related evidence about the children's care and Mother's plans were in Texas; the court concluded Texas had a significant connection and substantial evidence was available. On that basis, the court held the trial court had jurisdiction to make an initial custody determination and thus to modify the out-of-state custody determination.

Holding and Implications

AFFIRMED. The appellate court held the Texas trial court had subject matter jurisdiction under the UCCJEA (TEX. FAM. CODE ANN. §§ 152.201, 152.203) to modify the child custody determination made by another state and affirmed the trial court's judgment naming Stepmother sole managing conservator and Mother possessory conservator.

Implications: The direct effect is affirmation of the trial court's custody/conservatorship order. The opinion applies UCCJEA standards to the specific facts and does not announce a new legal rule beyond its application of statutory provisions and existing precedent.

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In the Interest of S.J.A., CJ.A., and NJ.A., Minor Children.

OPINION

Opinion by Chief Justice THOMAS.

Vickie J. Annett Ardoin (Mother) appeals the trial court's order naming Jacqueline G. Ardoin (Stepmother) sole managing conservator and Mother possessory conservator of S.J.A., C.J. A., and N.J.A. Mother's sole issue is that the trial court did not have subject matter jurisdiction. We disagree. Accordingly, we affirm the trial court's judgment.

Background

Inasmuch as the sole issue is whether the trial court had subject matter jurisdiction, we recite only those facts necessary to the jurisdictional inquiry.

S.J.A. was born on September 24, 1991 in Louisiana. In 1992, Mother married Philip Ardoin (Father) and, on December 23, 1992, C.J. A. was born. N.J.A. was born on June 26, 1995. Father and Mother separated shortly after N.J.A.'s birth. Following the separation, the children continued to reside with Mother in Louisiana.

In 1997, Father and the children moved to Florida, but Mother remained in Louisiana. In November 2000, Father began dating Stepmother. In November 2001, Father and Mother were divorced in Louisiana. The divorce decree named Mother and Father joint managing conservators of the children with Father having the right to determine the primary residence of the children. The children continued to live with Father in Florida.

The record reflects the divorce decree was reviewed by the trial court, although it is not a part of the appellate record.

On July 5, 2002, Father married Stepmother. Mother moved to Florida in 2003. Also in 2003, following a dispute with Mother over comments made to one of the children by their maternal grandmother, Father filed a motion in the 17th Judicial Circuit for Broward County, Florida to, according to Stepmother, "make sure that she wouldn't make mention of that to [the child] again." In 2004, the Florida trial court entered an order requiring Mother to pay child support and addressing health insurance for the children. Nothing in the record demonstrates the Florida court made any modifications to or decisions regarding the custody of the children.

The Florida order is also not in the appellate record; however, it appears the trial court reviewed the order.

Father died on November 6, 2006. That same day, Mother contacted the children about living with her. The children indicated they did not want to do so. Several days later, Mother went to Stepmother's house with the police in an effort to obtain the children. However, the children were not at home. In December 2006, Mother filed a motion in the Florida court requesting immediate custody of the children. The Florida court did not enter a written ruling on Mother's request, but stated from the bench the children should be given time to grieve Father's death and the parties should seek counseling. The children spent a week with Mother during Christmas, but Mother did not see the children in January 2007.

On February 3, 2007, Mother picked up the children for a weekend visitation. Instead of remaining in Florida, Mother brought the children to Texas where Mother's fiancé and her other children were living. On March 8, 2007, Stepmother filed this suit, seeking custody of the children. The parties subsequently agreed the children would remain with Mother while a home study was conducted, but that Stepmother would have visitation rights. On October 25, 2007, following a bench trial, the trial court named Stepmother sole managing conservator and Mother possessory conservator of the children.

Standard of Review

Whether a trial court has subject matter jurisdiction is a question of law we review de novo. Powell v. Stover, 165 S.W.3d 322, 324 (Tex. 2005) (orig. proceeding); Seligman-Hargis v. Hargis, 186 S.W.3d 582, 585 (Tex.App.-Dallas 2006, no pet.). The party initiating suit has the burden to allege sufficient facts to establish subject matter jurisdiction. In re Forlenza, 140 S.W.3d 373, 376 (Tex. 2004) (orig. proceeding); Seligman-Hargis, 186 S.W.3d at 585. We liberally construe the pleadings in favor of the party invoking jurisdiction. Seligman-Hargis, 186 S.W.3d at 585; In re Brilliant, 86 S.W.3d 680, 684 (Tex.App.-El Paso 2002, no pet.). We must also consider relevant evidence when necessary to resolve the jurisdictional issue. Seligman-Hargis, 186 S.W.3d at 585. When an action is grounded in statute, subject matter jurisdiction must be shown under the applicable statute. Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000); In re Barnes, 127 S.W.3d 843, 846-47 (Tex.App.-San Antonio 2003, orig. proceeding). Subject matter jurisdiction is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); Seligman-Hargis, 186 S.W.3d at 585.

Applicable Law

Jurisdiction over child custody issues in Texas is governed by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). TEX. FAM. CODE ANN. §§ 152.201-.317 (Vernon 2002 Supp. 2008); Seligman-Hargis, 186 S.W.3d at 585. Under the UCCJEA, the court that makes the initial "child custody determination" generally retains exclusive continuing jurisdiction over ongoing custody disputes. Saavedra v. Schmidt, 96 S.W.3d 533, 541 (Tex.App.-Austin 2002, no pet.). A "child custody determination" is an order of a court "providing for legal custody, physical custody, or visitation with respect to a child." TEX.FAM. CODE ANN. § 152.202(3) (Vernon 2002). The parties do not dispute the Louisiana divorce decree provided for the custody of and visitation with the children and, therefore, was a child custody determination. Unless it has temporary emergency jurisdiction over a child, a Texas court does not have jurisdiction to modify a child custody determination made by another state unless the Texas court has jurisdiction to make an initial determination under section 152.201(a) of the family code and:

Both Florida and Louisiana have adopted the UCCJEA. See FLA STAT §§ 61.501-.542 (West 2008); LA.REV.STAT. ANN. §§ 13:1801-.1842 (2008). Although Louisiana adopted the UCCJEA in 2006, the statute was not effective until August 17, 2007. Because none of the affected individuals remained in Louisiana, this does not impact our analysis.

Florida's and Louisiana's definitions of "child custody determination" are virtually identical to Texas's statutory definition. See FLA STAT. § 61.503(3); LA.REV.STAT ANN. § 13:1802(3).

(1) the court of the other state determines it no longer has exclusive continuing jurisdiction or that the Texas court would be a more convenient forum; or

(2) a Texas court or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

TEX. FAM. CODE ANN. § 152.203 (Vernon 2002); In re S.L.P., 123 S.W.3d 685, 688 (Tex.App.-Fort Worth 2003, no pet.).

Residence in Another State

We first consider whether the second prong of the jurisdictional test was met. There is no indication in the record that either the Louisiana court or the Florida court determined it did not have exclusive continuing jurisdiction or that Texas would be a more convenient forum. Therefore, we must determine whether the trial court found that the children, a parent, and any person acting as a parent did not continue to reside in either Louisiana or Florida.

In its findings of fact, the trial court found Father was deceased, the children and Mother moved to Garland, Texas on February 3, 2007, and Stepmother lived in Florida. Accordingly, the trial court specifically found no affected individual continued to reside in Louisiana.

Turning to Florida, the next issue is whether a Florida court made a child custody determination regarding the children and, if it did, whether Stepmother is a person acting as a parent, as defined by Florida law, who still resides in Florida. A "child custody determination" includes orders governing the custody of and visitation with a child, but does not include an "order relating to child support or other monetary obligation of an individual." FLA. STAT. § 61.503(3). After Father filed suit over the maternal grandmother's comments to one of the children, the Florida court entered an order regarding child support for the children. When, following Father's death, Mother filed what appears to be a petition for habeas corpus seeking custody of the children, the Florida court did not enter an order. Accordingly, nothing in the record supports a finding the Florida court made a child custody determination regarding the children.

See TEX FAM. CODE ANN § 152.201(3) (child custody determination does not include order relating to child support or other monetary obligation of an individual).

However, even assuming the Florida court made a child custody determination in either proceeding filed in that state, we still conclude the second prong of the statutory test is met. The trial court concluded it had jurisdiction "of the parties, of the children, and of the subject matter of this case." It also specifically found neither the children nor a parent continued to reside in Florida, but that Stepmother continued to reside in Florida. The trial court could not have reached the conclusion it had jurisdiction unless it also concluded Stepmother was not a person acting as a parent as defined by Florida law. See TEX. FAM. CODE ANN. § 152.203(2).

Under Florida law, a "person acting as a parent" is a person, other than a parent, who (1) has physical custody of the child or had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding, and (2) has been awarded a child custody determination by a court or claims a right to a child custody determination under the laws of Florida. FLA. STAT. § 61.503(13). The trial court found the children lived with Stepmother from 2001 until February 3, 2007, satisfying the first statutory requirement. The trial court did not make any finding regarding the second statutory element. However, an omitted unrequested element can be supplied by presumption if it is supported by evidence. TEX.R. CIV. P. 299; Davey v. Shaw, 225 S.W.3d 843, 855 (Tex.App.-Dallas 2007, no pet.). We, therefore, turn to whether the record supports a finding Stepmother had not been awarded a child custody determination by a court or claimed a right to a child custody determination under the laws of Florida.

Under Texas law, a "person acting as a parent" is a person, other than a parent, "who (A) has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child custody proceeding; and (B) has been awarded legal custody by a court or claims a right to legal custody under the law of this state." TEX. FAM. CODE ANN. § 152.102(13).

There is no evidence Stepmother has been awarded a child custody determination by a Florida court. Further, there is no evidence Stepmother claimed a right to such a determination under the laws of Florida. Rather, Stepmother claimed a right to a child custody determination under the laws of Texas. Because the record supports an implied finding that Stepmother has neither been awarded a child custody determination by a court nor claimed a right to such a determination under the laws of Florida, Stepmother was not a person acting as a parent as defined by Florida law when she filed this suit. FLA. STAT. § 61.503(13).

We conclude the evidence supports a determination by the trial court that neither the children, a parent, nor a person acting as a parent continued to reside in Florida when this suit was filed. Accordingly, the second prong of the jurisdictional inquiry in section 152.203 is met.

Initial Determination

We next turn to the first prong of the jurisdictional test — whether the trial court had jurisdiction to make an initial custody determination under section 152.201(a) of the Texas Family Code. A Texas court has jurisdiction to make an initial custody determination if:

(1) Texas is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from Texas but a parent or person acting as a parent continues to live in Texas;

(2) a court of another state does not have home state jurisdiction or the court having home state jurisdiction has declined to exercise jurisdiction on the ground that Texas is the more appropriate forum and:

(A) the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with Texas other than mere physical presence; and

(B) substantial evidence is available in Texas concerning the child's care, protection, training, and personal relationships;

(3) all courts otherwise having jurisdiction have declined jurisdiction on the ground that Texas is the more appropriate forum; or

(4) no court of any other state would have jurisdiction under subdivision (1), (2), or (3).

TEX. FAM. CODE ANN. § 152.201(a) (Vernon 2002). A child's "home state" is the state in which the child lived with a parent or person acting as a parent for at least six consecutive months immediately preceding the filing of the suit. Id. § 152.102(7); see FLA. STAT. § 61.503(7).

The UCCJEA gives priority jurisdiction to the child's home state. Powell, 165 S.W.3d at 325. In determining a child's home state, we focus on the child's physical presence in the state. Id. at 328. Here, the children had been in Texas for less than five weeks when Stepmother filed suit. Accordingly, Texas did not have home state jurisdiction. TEX. FAM. CODE ANN. §§ 152.102(7), 152.201(a)(1); see In re M.G.M., 163 S.W.3d 191, 196-97 (Tex.App.-Beaumont 2005, no pet.) (Texas not home state when children lived in Texas for only forty days before suit filed).

We next consider whether Florida had home state jurisdiction at the time this suit was filed. Florida was clearly the children's home state on November 6, 2006 when Father died. The children lived with Stepmother from November 6, 2006 until February 3, 2007. However, as set out above, Stepmother was not a person acting as a parent as defined by Florida law. Further, the children lived in Texas with Mother for approximately five weeks immediately preceding the filing of this suit. Therefore, the children did not live in Florida with a parent or a person acting as a parent for six consecutive months immediately preceding the filing of this suit, and Florida was not the children's home state on the date suit was filed. See In re Oates, 104 S.W.3d 571, 577 (Tex.App.-El Paso 2003, orig. proceeding); Peterson v. Peterson, 965 So.2d 1096, 1100 (Ala.Civ.App. 2007) (although children lived with maternal grandparents in Alabama for six consecutive months within one year immediately before mother filed petition to modify, Alabama was not children's home state because grandparents were not persons acting as a parent).

Relying on In re Burk, 252 S.W.3d 736, 740-41 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding [mand. denied]), Mother argues Florida had home state jurisdiction if, at some time within six months before this suit was filed, Florida was the children's home state. However, Burk involved a child less than six months old who lived in Texas for the first three months of her life and then was taken to Colorado by her mother. Because the father remained in Texas, the Burk court analyzed whether Texas had home state jurisdiction based on its being the child's home state within six months before the filing of the petition with the child being absent from Texas, but a parent remaining in Texas. Here, no parent or person acting as a parent remained in Florida and, therefore, Burk is not applicable.

The children did not have a home state on March 8, 2007 when Stepmother filed this suit. Therefore, the trial court had jurisdiction to make an initial custody determination under section 152.201(a)(2) if the children and Mother had a significant connection with Texas other than mere physical presence and substantial evidence was available in Texas concerning the children's present or future care, protection, training, and personal relationships. TEX. FAM. CODE ANN. § 152.201(a); Brilliant, 86 S.W.3d at 690. A high level of physical presence in Texas is not necessary to satisfy the significant-connection standard. See Forlenza, 140 S.W.3d at 378. Further, the question is not which state has the most significant connection with the children. Id.; see also In re Brown, 203 S.W.3d 888, 894 (Tex.App.-Fort Worth 2006, orig. proceeding) (noting when child did not have home state, both Missouri and Texas could have significant connection jurisdiction if statutory requirements met). Rather, in determining whether the record supports a finding the children and Mother have a significant connection with Texas, we look at the nature and quality of the children's contacts with Texas. Forlenza, 140 S.W.3d at 377-78.

Mother, Mother's fiancé, and the children's three half-siblings all lived in Texas prior to February 2007 when Mother brought the children to Texas and all maintained a relationship with the children. See id. at 377. Evidence regarding where the children lived at the time suit was filed, who cared for the children, and Mother's plans for the children's future care, education, protection, and training were all available in Texas from Mother and other family members. Texas had a significant connection with Mother and the children. Therefore, the trial court had jurisdiction to make an initial child custody determination regarding the children.

Conclusion

We conclude the trial court had jurisdiction under section 152.203 of the family code to modify the child custody determination made by another state. Therefore, we overrule Mother's sole issue and affirm the trial court's judgment.

IN RE S.J.A