*3 couple’s six children. MORRISS, C.J., Before CARTER and MOSELEY, (Au- 3. After JJ. James filed for divorce 9),
gust
Candice took the children and
OPINION
returned to reside in the still-unsold house
in Louisiana
family
where the
previ-
Opinion by Justice MOSELEY.
ously resided.
competing
This case is a tale of
parallel
actions
divorce in two sister
In September, Candice filed an ac-
states: Texas and
Parish,
Louisiana. Since the
tion for divorce in St. Landry
Loui-
siana,
date of different occurrences have a dis-
attaching
copy James’
peti-
impact
tinct
on a complete understanding
tion for divorce to
pleading.
Candice
case,
of this
a chronology of events is
special
then filed a
appearance
plea
helpful at the outset.
court,
abatement before the
County
Panola
arguing that under
the Uniform Child
1.James
Frank
his wife
Custody Jurisdiction and Enforcement Act
Rae,
and their six children had
(UCCJEA),
County
the Panola
court
lived in
years,
Louisiana for several
where
subject-matter jurisdiction
lacked
over the
they owned a home.
James commenced
children because the children had not lived
working in Texas and
commuting
back
in Texas for six consecutive
prior
workplace
and forth between his
and his
filing
to the
of the divorce.
home, spending nights
places.
in both
parents
County,
James’
resided in Panola
7,
5. On December
a hearing was held
temporary
Texas. After some
moves back
in the Louisiana divorce action.
James
and forth and visits with
parents,
James’
present.
was not
in order to maintain a more stable mar-
riage,
family
all of the Marsalis
moved
6. James filed an amended
from Louisiana to
County,
County
Panola
the Panola
action on December 16.
decision,
appellate
jurisdictional
1. The Louisiana
requirement.
men-
Tex. Fam.Code
hereinafter,
tioned
(Vernon 2006);
indicates that Candice tes-
Perry
Cope
6.301
hearing
tified in the Louisiana
that the
land,
move
339,
(Tex.Civ.App.-Tex
323 S.W.2d
occurred in March.
dism’d) (citing
arkana
writ
Aucutt v.
Aucutt,
(1933);
122 Tex.
filed with other under the state had UC- County. CJEA 19, the judge in Panola 9. On adopted Both Texas and have overruling an order Cand- County entered the UCCJEA.4 appearance plea abate- special ice’s jurisdiction exists Subject-matter ment, “subject that it matter finding when the case within a the nature of falls all mat-
jurisdiction over the that general of cases the court is category controversy....” ters in empowered, applicable statutory Pa- hearing on the merits of the 10. A provisions, adjudicate. and constitutional February held 4 action was on County nola 843, (Tex. Barnes, In re 127 S.W.3d 846 of divorce was entered and a final decree 2003, App.-San pet.) (citing Antonio no 12, marriage, dissolved the March which McGuire, 801, McGuire v. 18 S.W.3d 804 community property, adju- the divided 2000, pet.)). Paso no Sub (Tex.App.-El custody of the children.3 Candice dicated is ject-matter jurisdiction essential to judgment of divorce. appeal filed an of that to decide a authority of a court case. Tex. 11. The Louisiana Court of Bd., Ass’n v. Tex. Air Control 852 Bus. of opinion issued an Third Circuit (Tex.1993). Subject-mat S.W.2d 443 8, 2010, affirming December custody gov ter over issues is by Landry Par- of entered St. erned by the UCCJEA. Tex. Fam.Code ish, Louisiana, District Court. (Vernon 2008); §§ 152.001-.317 Ann. Barnes, error, at 846. pro of con- 127 S.W.3d That Act point In her sole an by denying mandatory jurisdictional trial court erred vides rules for tends that the original custody appearance objections proceeding.5 child special Tex. 10, 2009, pertinent 4. The ver- September Candice filed sections Louisiana’s 3.On custody action in Louisiana. substantially divorce and However, sion the UCCJEAare the same proceeding James filed by adopted as those Texas. Rev.Stat. La Ann. first, parties and children resided when all the 13:1813, 13:1801, 13:1802, (West, §§ 13:1818 therefore, 152.206, Texas; the Tex- Section 2011). through Westlaw current governing Family as Code section simulta- states, proceedings in different does not neous "proceeding legal 5. This a divorce which is exercising juris- apply from to bar Texas its custody, custody, physical or visitation with Presley, this matter. In re diction over See issue”; therefore, respect is an it is to a child (Tex.App.-Beaumont 868 166 S.W.3d custody proceeding as that term is child Brilliant, 2005, orig. proceeding); In 86 re 152.102(4) by defined Section the Texas (Tex.App.-El 690 Paso no S.W.3d 152.102(4). Code. Fam.Code Ann Tex. pet.).
135 .317; Barnes, §§ Home State Jurisdiction —Un Fam.Code 152.001— UCCJEA, has Texas court der S.W.3d at 846. A must 127 if state was one in which a subject-matter under the child lived parent with a least six at consecutive custody in order to make child UCCJEA immediately before the commence determination. of a custody proceeding ment or was subject- Whether a court has the home state of the child within six jurisdiction is a of law that question matter months before the commencement of the Dep’t review de novo. Parks & Tex. is proceeding the child absent from Miranda, v. S.W.3d 226 parent but a continues to live in Wildlife (Tex.2004). Subject-matter state. Fam.Code Ann. 152.201(a)(1). 152.102(7), be presumed §§ never and cannot waived. The word Bus., S.W.2d at 442^44. presence. Tex. Ass’n “lived” physical connotes Pow Stover, (Tex.
ell
165 S.W.3d
152.201 of
Texas Fami
2005).
Section
Powell,
In
Supreme
governs
Code
the initial child
ly
explained
Legislature
that the
Court
used
*5
the
of courts in
State of
Texas
“complicating
the word “lived” to avoid
the
to
and allows Texas
make an initial
courts
determination of a child’s home state with
only if
custody determination
the
inquiries into
of
the states
mind of the
are
In
statutory requirements
fulfilled.
child or the child’s adult caretakers.” Id.
making
regarding jurisdic
a determination
487,
(citing
Reisinger, 133
Escobar v.
N.M.
tion,
parties
the location of the
and the
(2003)).
514,
P.3d
The
64
517
UCCJEA
children is
vital factor. Because the
suggests
physical
that the child’s
location
were
and the children
not within
parties
the central
be
factor to
considered when
during the
either Texas or Louisiana
en
determining the child’s home state.
Id.
out in
period
tire
of time
the above
set
Both James and Candice concen
events,
chronology of
must first deter
arguments
the issue of
trate
on
home
the critical
which
upon
inquiry
mine
date
jurisdiction. Although James ada
state
surrounding
the
of the
circumstances
mantly argues that Texas was the chil
should be
Jurisdiction is
parties
applied.
disputes
home
that.
dren’s
Candice
upon
based
circumstances ex
determined
four-
maintains that
children’s
Candice
isting at
is filed in
the time suit
Texas.
stay
merely
tempo
in
month
Texas was
Brilliant,
Here,
692.
S.W.3d at
suit
rary
stay, making Louisiana
children’s
County, Texas,
July
filed in Panola
on
cogent
home state.6 The first
issue in
29, 2009.
look to the
Accordingly, we
sta
Texas was the home
determining whether
parties
of the
and the children on that
tus
is a determination
whether the
29,
July
id.
date:
present in
physically
children were
Texas
preceding
will
the four
six
possible
We
summarize
consecutive
filing
July
in Texas and then
on
2009. James
bases
James’
Candice,
he,
the four
that
and the children
any
examine whether
author-
testified
in late
parents
a Texas court
this
visited his
in Texas
izes
to conduct
talking
about
“preempting [sic]
determination.
"temporary”
gleaned
support
being
6. The evidence does
a conclusion
as
not
family
the removal
from Louisiana
solely
that
taken
from the actions
move;
temporary
only
Texas was
permanently
after
moved to Texas.
to Texas from
characterization of the move
distinguishable from
from
The Powell case is
down the street
into a house
moving
in
the child lived
present
case because
them,”
family
“started to
and that
months and
Tennessee for six consecutive
However,
February.”
Texas]
move [to
in Tennessee at the time the
parent
lived
moved to
that the children
clarified
James
suit was filed. See also
Huffstutlar
21, 2009,
visita-
“[w]ith
on March
Koons,
(Tex.App.-Dallas
the child jurisdic- has declined to exercise Brilliant, opposed here, As parties all ground tion on the that such court is an appeared presented evidence and no unjustifiable inconvenient forum or due to one has restraining violated a order. Due (such kidnapping) by conduct as a person to the fact that both parties focused on seeking to jurisdiction, invoke that court’s attempts to establish jurisdic- home state and: parent child and at least one (both tion at trial and on appeal), there is have a significant connection with Texas no evidence in the record other than physical presence; mere children’s significant connections to Texas (2) “substantial evidence is available [in care, or protection, train- care, concerning the protec- Texas] child’s ing, personal or relationships. tion, training, personal relationships.” §§ See 152.201(a)(2), Here, the record indicates that the chil- Fam.Code Ann. 152.207-.208. dren lived in months, Texas for about four frequently
Both
visited Texas
also cite to
before
Brilliant as
here,
moving
Brilliant,
and that
applicable.
Kristen,
In
James and several
Regi,
coworkers stayed
and their child lived in
at a
Massachusetts from
house Texas dur-
on,
ing
child’s birth in June
their “week
April
1999 until
week off” work week.
16, 2000,
addition,
when the father moved to
In
it was shown that James’ par-
Brilliant,
his
family
childhood and
home.
ents also
lived
but no evidence
to the father filed suit on the significant connection provision. later, July days and five served Kristen (3) Appropriate More Forum Jurisdic- with an order restraining her from remov- tion—A jurisdiction Texas court has if all ing the child from the county. Id. at 683. (1) (2) having jurisdiction courts under or On Kristen and the child moved above have jurisdic- declined to exercise Massachusetts, back to in violation of the tion, finding Texas the more appropriate restraining order. Id. Kristen filed a plea ' forum. See Fam.Code Ann. jurisdiction, to the arguing that the child 152.201(a)(3). spent only had forty-five days in but she did not appear hearing. for the acquire jurisdiction courts do not Id. The trial court although found that under this provision because there is no Texas was not the child’s home it evidence that having jurisdiction all courts through over the child sig- have declined to exercise or nificant connections. Id. In denying Kris- found that Texas courts are ap- the more ten’s motion for new trial and reconsidera- propriate forum. tion, the trial court found that grant “[t]o (4) the new trial jurisdiction, and to decline Default Jurisdiction —A Texas even on an inconvenient forum basis would court has if no court of any be to condone blatant disregard [Kristen’s] other state would have under present him was (2), purporting represent above.
(1), or Tex. Fam.Code 152.201(a)(4). hearing. v. for the Marsalis § 12/8/10). (La.App. 3 Cir. So.3d are of other no courts there Because case, in this having jurisdiction states in Judging from the recitations the re- subject-mat- properly exercised trial court below, the case mentioned evidence ported custody of adjudicate ter that hearing at the was produced provisions the default children considered and children Louisiana 152.201(a)(4) the Texas Section home, had spent that the children Accordingly, we overrule Candice’s Code. (except their entire lives trial and affirm the of error point Texas) Louisiana, and spent living judgment divorce. court’s provided she evidence care, training, future past protection, juris- judgment, competing A. Louisiana with personal relationships emphasis diction, comity things these had with on connections weeks after James commenced Several evidence Louisiana.7 Based on the before action, custody divorce and it, the trial court ruled that Louisiana was Candice, filed a September on The the children’s home state. court’s of her own in action adjudicated custody and judgment award- Parish, (attaching a Landry Louisiana St. spousal support, support, ed and the original petition to copy of James’ Texas occupancy use and of the marital residence That was docketed as case pleading). was in Louisiana.8 The affirmed in the Louisiana number 09-C-4858-B to the of Loui- appeal on Court petition in hearing A on court. Candice’s siana, Third Circuit. Id. at 298-99. Other case was scheduled Decem the Louisiana letter, taking note trial than of James’ sent a Although hand ber inquiry court made no into the circum- letter pro se to the written jurisdictional or of the previ- stances basis continuance, the motion was requesting ously filed action. denied, statedly because of James’ failure ignore In an effort to not the benefits of a return or other provide address means comity,9we have researched examined him an alternate contacting appellate opinion Marsal- hearing A on the hearing date. held, anyone Apparently, point ap- but neither James nor James’ sole is.10 (UCCJA) apparently Custody Child Act ] while Candice form Jurisdiction observe significant remedy.” Waltenburg evidence con- enacted to Wal introduced of some *8 hearing tenburg, (Tex.App. to Louisiana in the 270 S.W.3d 314-15 nections action, significant pet.) (quoting those Louisiana Dallas no Greene Greene, apparently did not exist on the (Fla.Disl.Ct.App. connections So.2d filed; (and 1983)). By the Texas action for divorce adopting date the UCCJA subse stay UCCJEA), during Legislature ceased the in Texas and quently had the the "has resumed Candice and the apparently effectively after to commanded the courts defer to to already correctly children returned Louisiana. sister state which has as jurisdiction custody in a child case sumed jurisdiction argue wlten that other exercises its state appeal, Candice does not In her the Act.” We in a consistent with Id. courts should defer to the Louisiana fashion by agree logic with the forth the Florida set judgment. in Greene. respect custody to comity 9. “The lack of with 152.201(a)(4) 152.206 the the 10.Sections and other a mischief law decrees of states is is, correspond to the Louisiana predecessor, Uni Texas Code UCCJEA’s [that in that peal complained entry case of the the children from both James judgment Candice, before staying proceedings its and whereas the Louisiana courts court, communicating only with the Texas had evidence presented by Candice. above, mandate of UCCJEA.11 Rather than per ruling As our on the date James finding possessed that Louisiana home filed his petition in neither parent (as jurisdiction by any found the Louisi- nor of the children lived in Louisiana court), ana trial appeals the court of held and no state other than Texas would have that Louisiana upon had based had under the UCCJEA. See significant connections. The ap- 152.201; § Tex. Fam.Code Ann. La.Rev. pellate court noted that § James’ letter Therefore, 13:1813. at the Stat. Ann. failed allegations to make time Candice filed her in Louisi- ana, presence children’s or connections in already had in ac- Texas, found that only pre- “the evidence cord with the UCCJEA under Section supports 152.201(a)(4), sented a determination that no although it appears that the other including jurisdic- had Louisiana court did not take that into ac- children],” tion [over and stated that count. Because already juris- had “the evidence indicates that the children diction at the time the Louisiana suit was significant filed, had [Candice] connections the Louisiana trial court could not other than physical [Louisiana] mere exercise over the case. See presence.” 52 Despite So.3d at 299.12 152.206; § the Tex. Fam.Code Ann. La.Rev. trial court making inquiry beyond no § 13:1818. Accordingly, Stat. Ann. pleadings into previously filed Texas Louisiana trial court’s and child action, the court held support custody orders were entered trial court was required stay jurisdiction. its without See Tex. Fam.Code proceedings or 152.206; § contact the Texas trial Ann. La.Rev.Stat. Ann. court under the § UCCJEA’s simultaneous 13:1818. proceeding provision because there was no The Marsalises find themselves in a situ- evidence that Texas had sub- orders, ation of competing custody parallel stantially in accordance with the UCCJEA. appeals, issues, relitigation 297-99; 13:1818; §
Id. at La.Rev.Stat. Ann. jurisdictional interstate competition—the 152.206.Interesting- Tex. Fam.Code Ann. very problems the UCCJEA was enacted however, ly, there was likewise no evi- prevent. Fam.Code dence given that the Texas court did not §§ 152.001-.317. support Since the orders jurisdiction. entered in the respective two actions for
Here, the Texas trial court other, ad- divorce do not comport with each it vantage of hearing testimony and evidence is extremely likely that confusion as to the 13:1813(A)(4) 13:1818, statutes respec- strong 12. We note that the and reasoned dis- tively. language The by referenced Louisi- sent Justice David E. Chatelin of the Lou- similar, substantially ana statutes is if not isiana Third Circuit Court of ex-
identical, language to the correspond- presses many of the same concerns about *9 ing Texas statutes. of the Louisiana courts that have been raised and discussed here. Jus- Compliance by tice Chatelin Louisiana trial court would have reversed the Louisi- may with this well required have avoided the ana trial court and it conflicts to abate its court, During proceedings, which have hearing, arisen here. confer with the Texas County the Panola trial court observed that and dismiss the case unless Texas declined thing just "the easiest for me to being do is throw it on the basis of Louisiana back to Louisiana and let them with fool it.” more convenient forum. all the best interest of of what would serve an issue of each will become enforceability parties. the trial courts Each of in the future. pendency aware became in the trial Having found Perhaps this state. in the other actions the first action was court in where if not have arisen would
judicial conflict filed, “throw it back to may simply we not make had seen fit to either trial judgment. in the Louisiana.” I concur (even if were with the other contact the UC- absolutely required under even if such commu- to do so and CJEA respec- courts of the between the
nication not result a resolution
tive states did conflict).13 trial judgment affirm
court. LIVELY, Appellant, George
Robert Opinion by Justice Concurring CARTER. Texas, Appellee. The STATE of CARTER, Justice, concurring.
JACK be avoided. Some This result should No. 06-10-00163-CR. by negotiated can best be resolved issues Court resolution, trial gives and this statute Texarkana. just to do that. judges opportunity jurisdictions are Trial courts different 15, 2011. Submitted March it to communicate when encouraged custody matters are filed known that Decided March more than one state. After that confer-
ence, may a trial court decline to exercise if it finds that another state is forum. Tex. Fam. appropriate
the more 152.206(b) 152.201(a)(2), §§
Code 2008).
(Vernon de- We have searched to if, court, we have appellate
termine as an authority to decline the doctrine relying
resolve this matter comity so that these would have But our
only one court to answer to. to review the trial court record
function is error, attempt policy to make a not to trial though
determination that even correct, should legally
court order is
reverse that order based on our action, pending there is appeals knew of the 13. The Louisiana court of acknowl- indicating it com- judge nothing in the record edges trial did not that the Louisiana court, trial court. record municated with the Louisiana contact the Texas trial and the at 297-98. although 52 So.3d reflects that the Texas trial court