352 S.W.3d 772
Tex. App.2011Background
- Relator Donovan Green sought mandamus to challenge Texas court jurisdiction over SAPCR and divorce, and for relief under the Servicemembers Civil Relief Act stay.
- The underlying SAPCR and divorce action was filed in Bexar County, Texas, on January 21, 2011; Donovan is on active duty in the U.S. Army.
- D.G.G., the child, was born in Germany in 1998 and has resided in Germany since birth, with a period (2002–2008) in Virginia; neither Donovan nor the child has primarily lived in Texas.
- Texas court denied Donovan’s special appearance, plea to the jurisdiction, and plea in abatement on March 30, 2011; a SCRA stay order was later entered.
- Donna van contends a trial-order could affect the child under the SCRA stay, but no specific order signed by Judge Stryker is in the record; record shows a temporary injunction by Judge Nellermoe.
- Petition seeks mandamus relief; the court addresses SAPCR jurisdiction first, then personal jurisdiction, then SCRA, then inconvenient forum.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the SAPCR falls under home-state jurisdiction | Green asserts Texas lacks home-state jurisdiction for SAPCR. | Green contends Texas cannot exercise SAPCR jurisdiction because Texas is not the home state. | Texas lacks SAPCR jurisdiction; child’s home state is Germany. |
| Whether the divorce proceeding has personal jurisdiction in Texas | Green challenges personal jurisdiction under §6.301. | State argues §6.301 residency is not jurisdictional and requires fact findings the trial court may decide. | Trial court did not clearly abuse discretion on residency/grounds; cannot determine abuse from record. |
| Whether the stay under the Servicemembers Civil Relief Act affected orders governing the child | Relator claims temporary orders violated the SCRA stay. | Record contains no Stryker temporary orders; record shows a Nellermoe injunction; lack of specific argument on stay. | No mandamus relief for SCRA violation; record insufficient to show error; jurisdiction issue controls. |
| Whether Texas is an inconvenient forum for the SAPCR | Texas inconvenient forum; improper forum for SAPCR. | No ruling below on forum under §152.207; proper procedural posture required. | Cannot grant mandamus relief on inconvenient-forum ground. |
| Overall relief: whether mandamus should dismiss SAPCR for lack of jurisdiction | Green seeks dismissal of SAPCR for lack of jurisdiction. | Trial court’s actions should be reviewed for abuse of discretion; may proceed on other issues. | Court conditionally grants mandamus in part; orders dismissal of SAPCR for lack of jurisdiction. |
Key Cases Cited
- Geary v. Peavy, 878 S.W.2d 602 (Tex. 1994) (mandamus review in child custody when jurisdiction disputed)
- In re Burk, 252 S.W.3d 736 (Tex.App.-Houston [14th Dist.] 2008) (mandamus review in SAPCR jurisdiction)
- Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex. 1998) (de novo review of subject-matter jurisdiction)
- Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (orig. proceeding; standards for jurisdictional review)
- In re Barnes, 127 S.W.3d 843 (Tex.App.-San Antonio 2003) (home-state and significant connections considerations)
- In re Oates, 104 S.W.3d 571 (Tex.App.-El Paso 2003) (significant-connection jurisdiction guidance)
- Reynolds v. Reynolds, 86 S.W.3d 272 (Tex.App.-Austin 2002) (residency as non-jurisdictional in divorce)
- Cook v. Mayfield, 886 S.W.2d 840 (Tex.App.-Waco 1994) (residency/domicile factual questions for trial court)
- Oak v. Oak, 814 S.W.2d 834 (Tex.App.-Hou. Dist. 1991) (residency and forum considerations in divorce)
- Griffith v. Griffith, 341 S.W.3d 43 (Tex.App.-San Antonio 2011) (general legal standards; discretionary rulings and proper law application)