In re Milton
2013 Tex. App. LEXIS 15278
| Tex. App. | 2013Background
- Husband (Jonathan) filed for divorce and a SAPCR in Fort Bend County on Feb 10, 2012; the child J.A.M. was born in Texas and lived in Texas until mother (Nicolette) left Texas the next day and moved to Utah with the child.
- Jonathan’s Fort Bend petition alleged both spouses had lived in Fort Bend 90 days, though they had not; Fort Bend court later sua sponte transferred the case to Harris County in August 2012.
- Nicolette filed a special appearance and then, after moving to Utah, filed a competing divorce/SAPCR in Utah; Jonathan later filed an amended petition in Harris County on Jan 9, 2013.
- Harris County court heard Nicolette’s special appearance Jan 24, 2013 but did not immediately rule; it entered temporary orders Jan 25 (requiring mother to present the child in Utah the same day) and later named Jonathan temporary sole managing conservator and ordered supervised visitation and interim support.
- After Nicolette failed to turn the child over, Harris County issued enforcement orders including a writ of attachment for the child and a capias for Nicolette; Nicolette sought mandamus relief asserting lack of subject‑matter jurisdiction, improper venue, and invalid temporary orders.
Issues
| Issue | Milton’s Argument (plaintiff) | Nicolette’s Argument (defendant/relator) | Held |
|---|---|---|---|
| Subject‑matter jurisdiction under UCCJEA (home‑state) | Texas is J.A.M.’s home state because Jonathan’s original Fort Bend filing (Feb 10, 2012) commenced the proceeding and the child had lived in Texas for the prior six months | Home‑state is determined by the filing that commenced the custody proceeding; Nicolette argued the relevant filing was Jonathan’s Harris County amended petition (Jan 9, 2013) and the child had lived in Utah >6 months so Texas lacked jurisdiction | Court: Texas has subject‑matter jurisdiction — reference point is the first pleading (Feb 10, 2012), so Texas was the child’s home state and may make an initial custody determination |
| Venue/residency for divorce under Fam. Code §6.301 | Jonathan argued venue issues could be cured and did not preclude continuing in Texas; he did not contest transfer to Harris County | Nicolette argued neither party satisfied the county 90‑day residency in Harris County (nor Fort Bend when original petition filed), so Harris County is improper venue and the suit should be dismissed or transferred | Court: Residency requirement not satisfied in Harris County; mandamus appropriate — direct transfer back to Fort Bend County (not dismissal) because neither party intends to live in Harris County |
| Temporary orders entered before ruling on special appearance / enforcement orders (writ, capias) | Arguably necessary to protect child; Harris court relied on communication with Utah court commissioner | Nicolette argued temporary orders were void because entered before jurisdiction/venue were resolved and without proper notice/hearing; enforcement (writ, capias) therefore void | Court: Vacated the contempt order and capias based on those temporary orders; abated appellate review of other temporary orders and directed Fort Bend judge (after transfer) to reconsider them |
| Availability of mandamus to address venue/jurisdiction in SAPCR | Jonathan contended venue errors are usually interlocutory and appealable, not mandamable | Nicolette argued mandamus is appropriate in SAPCRs because custody/support require expedited, adequate relief not provided by appeal | Court: Mandamus available here (sensitive custody issues, lack of connection to Harris County) and relief granted (conditional writ directing transfer and vacating capias/contempt) |
Key Cases Cited
- In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (mandamus standards and when extraordinary relief is appropriate)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (standard of review for mandamus; legal questions reviewed de novo)
- In re Green, 385 S.W.3d 665 (Tex.App.—San Antonio 2012) (mandamus appropriate where divorce/residency requirements cannot be met and parties lack intent to return)
- In re Dean, 393 S.W.3d 741 (Tex. 2012) (Family Code §152.201 provides exclusive jurisdictional basis for initial custody determinations under the UCCJEA)
- In re Burk, 252 S.W.3d 736 (Tex.App.—Houston [14th Dist.] 2008) (UCCJEA’s objective home‑state focus and interpretation)
- In re Mo. Pac. R.R. Co., 998 S.W.2d 212 (Tex. 1999) (exception permitting mandamus in SAPCR venue disputes because appeal may be inadequate)
- Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991) (temporary orders in SAPCRs are subject to extraordinary review)
- In re Wilson, 799 S.W.2d 773 (Tex.App.—Tyler 1990) (Texas court must dismiss where it lacks subject matter jurisdiction under UCCJEA)