In re Walker
2014 Tex. App. LEXIS 755
| Tex. App. | 2014Background
- Child K.H.D. born in Georgia in 2009; parents are Alyssa Walker and Jeremiah Dawson (unmarried).
- Parents separated in December 2010; Walker remained in Georgia and Dawson retained primary physical custody with visitation arrangements for Walker.
- Dawson moved with his new wife and K.H.D. between Georgia and Texas in May–July 2012; the family finally relocated from Georgia to Texas on July 25, 2012.
- Dawson filed a Texas suit for an initial child-custody determination on November 27, 2012; the Texas trial court found Texas to be the child’s “home state,” denied Walker’s plea to the jurisdiction, and entered temporary orders awarding Dawson possession.
- Walker filed a Georgia custody suit on January 24, 2013 and sought mandamus relief in Texas after the Texas court refused to dismiss; Walker argued Georgia, not Texas, was the child’s home state within the meaning of the UCCJEA.
Issues
| Issue | Plaintiff's Argument (Walker) | Defendant's Argument (Dawson) | Held |
|---|---|---|---|
| Whether Texas was the child’s "home state" under the UCCJEA | Georgia was the child’s home state; child not physically in Texas for six consecutive months prior to suit | Texas was child’s home state because Dawson moved there May 2012 and child lived there after that move | Texas is not the child’s home state because child was not physically present in Texas for six consecutive months before November 27, 2012 |
| Whether Georgia was the child’s home state within six months before Texas suit | Georgia was the child’s home state within six months because child lived there until July 25, 2012 | Texas argued Georgia had effectively lost or declined jurisdiction | Georgia was the child’s home state within six months of the Texas filing (July 25, 2012 falls within six months of Nov. 27, 2012) |
| Whether a Georgia court had declined jurisdiction such that Texas could act under UCCJEA §152.201(a)(2) | No Georgia court had declined jurisdiction before Nov. 27, 2012; later Georgia dismissal did not constitute a §152.201(a)(2) decline | Relied on a March 13, 2013 Georgia dismissal (citing Texas order) as showing Georgia declined jurisdiction | Georgia had not declined jurisdiction on or before Nov. 27, 2012; the later dismissal did not meet §152.201(a)(2) requirements because it did not find Georgia was an inconvenient forum under §§152.207–.208 |
| Whether Walker was entitled to attorney’s fees and expenses under Family Code §152.312 | Walker requested fees and expenses as prevailing party | Dawson opposed jurisdictional relief; disputed entitlement to fees | Court denied Walker’s request for attorney’s fees, costs, and expenses (insufficient showing and inapplicability of §152.312) |
Key Cases Cited
- In re J.D. Edwards World Solutions Co., 87 S.W.3d 546 (Tex. 2002) (mandamus standard for clear abuse of discretion)
- Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (UCCJEA home-state physical-presence focus)
- In re Oates, 104 S.W.3d 571 (Tex. App.—El Paso 2003) (orig. proceeding) (petitioner's burden to show jurisdictional facts)
- In re Brown, 203 S.W.3d 888 (Tex. App.—Fort Worth 2006) (orig. proceeding) (physical-presence test for home state)
- In re Marriage of Marsalis, 338 S.W.3d 131 (Tex. App.—Texarkana 2011) (orig. proceeding) (short presence in state insufficient to establish home state)
- In re K.Y., 273 S.W.3d 703 (Tex. App.—Houston [14th Dist.] 2008) (no pet.) (home-state analysis within six months prior to filing)
- In re Burk, 252 S.W.3d 736 (Tex. App.—Houston [14th Dist.] 2008) (orig. proceeding) (home-state timing within six months)
- In re Estes, 153 S.W.3d 591 (Tex. App.—Amarillo 2004) (orig. proceeding) (analyzing continuity during six‑month home-state period)
- In re McCoy, 52 S.W.3d 297 (Tex. App.—Corpus Christi 2001) (orig. proceeding) (jurisdiction assessed as of Texas filing date)