In re Martinez

Opinion by: MARIALYN BARNARD

Mandamus relief conditionally granted.

Original Mandamus Proceedings. Kelly Decker, Kyle Fonville, Burnett Plaza, Fort Worth, TX, for Appellant. James P. Peterson, Attorney At Law, San Antonio, TX, for Appellee.

Opinion by: MARIALYN BARNARD, Justice.

This original proceeding concerns a child support dispute involving two states: New York and Texas. Relator Dennis J. Martinez filed a petition for writ of mandamus challenging the trial court's assumption of subject matter and personal jurisdiction. We conditionally grant mandamus relief.

Section 159.611 of the Family Code provides a Texas court may not modify a child support order rendered in another state unless: (1) the child, the obligor, and the obligee do not reside in the issuing state, a non-resident petitioner seeks the modification, and the respondent is subject to personal jurisdiction in Texas courts; or (2) Texas is the child's residence, or a party is subject to the personal jurisdiction of Texas courts,

all of the parties have filed consents in a record in Texas, permitting a Texas court to modify the support decrees and assume continuing, exclusive jurisdiction. Tex. Fam.Code Ann. § 159.611(a), (b). As the party seeking a modification, it was incumbent upon Pastor to establish the Texas court's jurisdiction to modify the New York decree. We hold Pastor did not establish the mandates that would have permitted the Texas trial court in this case to modify the New York support decree.

The record establishes, and it is undisputed, that Martinez still resides in New York and Pastor, the petitioner, is a Texas resident. Thus, Pastor did not produce evidence to meet the mandates of section 159.611(a). See id. § 159.611(a). Likewise, she did not produce evidence to meet the mandates of the alternative provision, section 159.611(b). There is nothing in the record to establish that Pastor, much less Martinez, filed a written consent in a record in Texas, permitting a Texas court to modify the support decree and assume continuing, exclusive jurisdiction. See id. § 159.611(b). Thus, from the foregoing it appears New York retains continuing, exclusive jurisdiction in this matter and Texas is not permitted to assume jurisdiction to modify the New York support decree.

Pastor attempts to avoid section 159.611, and in fact the entire UIFSA scheme, by arguing the action she filed in the Texas trial court was an “original” action as opposed to a modification. Pastor has two bases for this assertion. First, she contends her action was per force an original action because the New York decree terminated pursuant to its own provisions before she filed suit in Texas. As we set out in the background portion of this opinion, under the New York decree, Martinez's child support obligation ended when D.E.M. turned twenty-one on February 13, 2013, and was not still in school. Thus, according to Pastor, there was no decree to modify. The trial court seemed to agree with Pastor's assertion. At the hearing, the trial court queried Martinez:

THE COURT: How is the issuing state New York if the child turned 21 and there is no child support order in place in New York.

[MARTINEZ'S COUNSEL]: There was a child support order.

THE COURT: Was. It's not current, is it?

Second, Pastor contends her Texas suit was an original action because she never registered the New York decree in Texas, and therefore her suit was an original action as opposed to a modification. The trial court seemed to accept this position as well. The trial court asked Martinez if the New York decree was filed as a foreign order. Admittedly, it was not, so the trial court then asked: “Okay. So this is an original suit?” Martinez advised that Pastor attempted to file it as an original suit, but countered that in reality it is an action to modify an existing order. The trial court specifically stated the New York support decree could not be modified unless it was previously filed in Texas: “[Y]ou can't modify it unless you have filed a foreign decree and registered in the State of Texas and then seek to modify.... [I]t's not a modification then. It can't be a modification.”

We disagree with both of Pastor's contentions and reject her attempt to avoid the mandates of UIFSA. As for her claim that her suit is an original action as opposed to a modification because the New York support decree expired by its own terms, Pastor provided no authority for this position and, in fact, UIFSA provides to the contrary. To begin with, as set forth above, section 159.205 provides only two ways in which a court may lose its continuing exclusive jurisdiction: (1) the obligor, the obligee, and the child move out of the rendering state; or (2) all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state's decree. Tex. Fam.Code Ann. § 159.205. We agree with Martinez that if the Texas Legislature had intended to provide an additional opportunity for Texas courts to gain jurisdiction it certainly could have, but did not. See, e.g., Mid–Century Svs. Co. of Tex. v. Kidd, 997 S.W.2d 265, 273–74 (Tex.1996) (holding that maxim of expression of one implies exclusion of another is aid to determine legislative intent). Accordingly, despite the expiration of the New York decree by its terms, under UIFSA, New York never lost continuing, exclusive jurisdiction over this child support matter.

Moreover, and as is specifically applicable here, section 159.611(c) states that a Texas court “may not modify any aspect of a child support order, including the duration of the obligation of support, that may not be modified under the law of the issuing state.” Tex. Fam.Code Ann. § 159.611(c) (emphasis added). As Martinez points out, the rationale for this provision is explained in the Official Comments to UIFSA:

The 2003 amendment to Subsection (c) ... [is] designed to eliminate scattered attempts to subvert a significant policy decision made when UIFSA was first promulgated. Prior to 1993, American case law was thoroughly in chaos over modification of the duration of a child-support obligation when an obligor or obligee moved from one state to another state and the states had different ages for the duration of child support.

From its original promulgation, UIFSA determined that the duration of a child-support obligation should be fixed by the controlling order. If the language was insufficiently specific before ... 2003, the amendments should make this decision absolutely clear. The original time frame for support is not modifiable unless the law of the controlling State provides for modification of its duration.
Commissioner's Official Comment to UIFSA Section 611, reprinted in Sampson & Tindall's Texas Family Code Annotated § 159.611 (2013 ed.) (citations omitted) (emphasis added). Unfortunately, the Commissioner's comment was insufficient because parties began making arguments nearly identical to the one raised by Pastor in this case in an attempt to avoid the duration restriction:

Some courts have sought to subvert this policy by holding that completion of the obligation to support a child ... established by the now-completed controlling order does not preclude the imposition of a new obligation thereafter ... Subsection [ (e) ] is designed to eliminate these attempts to create multiple, albeit successive, support obligations.
Id. Therefore, section 159.611(e) was enacted. Subsection (e) specifically provides that in a modification proceeding, the law of the state that issued the original order governs the duration of the support obligation. Tex. Fam.Code Ann. § 159.611(e) (emphasis added). Moreover, the obligor's fulfillment of the duty of support established under the original order precludes the imposition of a further obligation of support by a Texas court. Id.

Accordingly, based on subsections (c) and (e) and the comments thereto, the trial court in this case could not modify the duration of the New York decree to impose a further support obligation upon Martinez or create a new obligation based on D.E.M.'s disability. The duration of the New York support decree is governed by New York law, which the parties stipulated does not provide for support of adult disabled children. See Genther, 579 N.Y.S.2d at 708–09. Hence, the New York court's decision to reject Pastor's modification attempt.

Moreover, Texas law mandates a finding that New York retains exclusive controlling jurisdiction and Pastor's suit had to be filed as a modification of the New York decree. Pastor's suit was brought pursuant to Chapter 154, Subchapter F of the Family Code, which governs support obligations for minor or adult disabled children. See Tex. Fam.Code Ann. §§ 154.301–.309. Section 154.309(c) specifically states that a court that obtains continuing, exclusive jurisdiction of a suit affecting the parent-child relationship involving a disabled person who is a child, retains its continuing exclusive jurisdiction even after the child becomes an adult. Id. § 154.309(c). Additionally, section 154.305 specifically states that a suit for child support for a disabled child or adult may be filed as an original suit only if “no court has continuing, exclusive jurisdiction of the child.” Id. § 154.305(b). However, if a court already has continuing, exclusive jurisdiction of the child, the suit may be filed as a modification of the support obligation. Id. § 154.305(b). Thus, based on Subchapter F, Pastor's Texas filing could not be an original suit because as we have determined, the New York court retained continuing, exclusive jurisdiction of D.E.M.'s support.

As for Pastor's argument that her Texas suit constitutes an original action as opposed to a modification because she never registered the New York decree in Texas, we hold this lacks merit as well. This contention defies the policies underlying UIFSA. If Pastor is correct, any party could circumvent the modification rules under UIFSA by simply refusing to register the foreign support order and filing an “original” action. This does not comport with the purpose of UIFSA, which is to “maintain a ‘one-order-at-a-time world,’ ensuring that only a single controlling support order exists and is enforced consistently among the states.” Long, 401 S.W.3d at 913 (citing Commissioner's Official Comment to UIFSA Section 207, reprinted in Sampson & Tindall's Texas Family Code Annotated § 159.207 (2011 ed.)). Thus, the trial court's focus on whether or not the New York decree has been registered is misplaced. The only relevant factor in determining whether Pastor's action was an original suit or a modification is the existence or absence of a prior controlling support order. See Tex. Fam.Code Ann. § 159.207(a) (stating that if only one tribunal has issued child support order, order of that tribunal controls and must be recognized). It is undisputed that such an order existed in this case—the New York decree. Accordingly, the absence of registration does not convert Pastor's obvious attempt to modify a pre-existing, foreign order into an original action.

Based on the foregoing analysis, as to the trial court's subject matter jurisdiction in this matter, we hold New York rendered the controlling order and retained continuing, exclusive jurisdiction over Martinez's support obligation to D.E.M. As such, it was incumbent upon Pastor to establish New York no longer has a sufficient interest in the modification of its prior order by proving one of the provisions in section 159.611. See T.L., 316 S.W.3d at 83 (citing Tex. Fam.Code Ann. § 159.611). Pastor did not meet this burden, and her claim that she was not required to establish a lack of interest by New York because her action was an original suit as opposed to a modification is without merit.

Although we are sympathetic to Pastor's attempt to obtain support for her disabled child, we are bound by the statutory mandates of UIFSA. We hold the trial court lacked subject matter jurisdiction over this action and the trial court erred in denying Martinez's plea to the jurisdiction. Given our disposition of the subject matter jurisdiction issue, we need not consider Martinez's issue relating to personal jurisdiction.

Accordingly, we conditionally grant the petition for writ of mandamus and direct the trial court to render an order granting Martinez's plea to the jurisdiction and vacate its prior temporary orders. The writ will issue only if the trial court fails to render an order granting Martinez's plea and vacating its temporary orders as directed within ten days from the date of this court's order. The temporary stay previously granted by this court will remain in effect until the trial court renders an order granting the plea to the jurisdiction and vacating its temporary orders. -------- Notes: