in the Interest of A.S.C.H., a Child
380 S.W.3d 346
Tex. App.2012Background
- A.S.C.H. was born in Texas in 2008 to Hermer and Cohen, who traveled to England where A.S.C.H. lived with Cohen after 2009.
- Hermer filed Hague Convention proceedings in 2010 seeking A.S.C.H.’s return to Texas and an original SAPCR in Texas followed in 2010.
- London High Court Hague judgment (Dec. 3, 2010) denied return, holding habitual residence in England since June 2009.
- Cohen filed a Texas motion to dismiss for lack of jurisdiction in Feb. 2011, attaching the Hague judgment but not offering it into evidence.
- Trial court dismissed Hermer’s SAPCR with prejudice on June 4, 2011, relying on the Hague judgment to deny Texas home-state jurisdiction.
- On appeal, the court reverses and remands, finding error in the dismissal and in failing to allow an evidentiary record on home-state facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Enforcement under 152.105 and fraud | Hermer argues 152.105 fraud issue controls. | Cohen argues dismissal under 155.102 based on foreign judgment. | Issue sustained; 152.105 enforcement misapplied. |
| Right to evidentiary hearing on home state | Hermer seeks evidentiary hearing on home-state facts. | Cohen asserts no hearing required when jurisdiction challenged. | Issue sustained; evidentiary record required. |
| Home state determination under 152.201 | Hermer asserts Texas home state via factual record; Hague not controlling. | Cohen argues England has home-state/continuing jurisdiction per Hague. | Issue not reached on remand; fact-finding required. |
| Dismissal with prejudice | Hermer contends dismissal with prejudice was improper absent full adjudication. | Cohen contends proper under lack of subject-matter jurisdiction. | Issue not resolved on remand; need factual record. |
Key Cases Cited
- In re S.J.O.B.G., 292 S.W.3d 764 (Tex. App.—Beaumont 2009) (limits of Hague/underlying custody merits)
- England v. England, 234 F.3d 268 (5th Cir. 2000) (courts considering Convention petitions cannot adjudicate merits)
- Powell v. Stover, 165 S.W.3d 322 (Tex. 2005) (home state focus on physical presence, not subjective intent)
- Miranda, 133 S.W.3d 217 (Tex. 2004) (jurisdictional facts considered liberally)
- In re J.G., 301 S.W.3d 376 (Tex. App.—Dallas 2009) (Beaumont and Dallas opinions on home-state/subject-matter)