This is аn appeal from an order sustaining appellee’s special appearance under Tex. R.Civ.P. 120a. The appellant sued in Texas to modify his visitation rights awarded under a Texas divorce decree. Because the appellee and the minor child were both residents of Mississippi, the triаl court dismissed the cause on the grounds that it had no personal jurisdiction over appellee and had no jurisdiction over the subject matter of the suit. We hold that the court had jurisdiction over the appellee and over the subject matter. Accordingly, we reverse and remand.
Appellant and appellee were married in June 1969 and resided in Dallas, Texas, until their separation and divorce in 1975. Appellee was appointed managing conservator of the couple’s minor child, who was born in Texas in 1974. Appellant is the possessory conservator and has access to the child from 10:00 a. m. on the third Saturday of each month until 4:00 p. m. on the third Sunday. Appellee moved to Prentiss, Mississippi, in April 1977, thus making it difficult for appellant to exercise his 30 hour visitation privilege each month. On June 6, 1978, appellant filed a motion in a Dallas County district court to modify his visitation rights. After notice, appellee filed her spеcial appearance, which the trial court sustained on the grounds that it lacked jurisdiction over the person of the mother and the subject matter of the suit. The father appeals.
Nature of Suit
Appellant first asserts that the trial court erred in construing his motion as a motion to modify conservatorship. We cannot agree. In his motion, the appellant father requested possession for one week
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every second month until the child is six years old, for six weeks during each summer, on alternate holidays, and that possession no longer be limited to the county of the mother’s residence. Appellant’s labeling of his action as a modification of visitation rights is not controlling. We note that appellant has requested that his access to the child be increased from 30 hours per month to about three months each year. We hold that such an extensive request for increased visitation rights is a motion to modify conservаtorship.
Glasgow v. Hurley,
Propriety of Raising Subject Matter Jurisdiction Under Rule 120a
Appellee attempted to raise the question of lack of subject-matter jurisdiction as well as lack of personal jurisdiction by a special appearance under Rule 120a, which authorizes a special appearance only “for the purpose of objecting to the jurisdiction of the court over the person or property of the defendant on the ground that such party or property is not amenable to process issued by the courts of this state.” This rule does not purport to authorize a special appearance for the purpose of raising lack of jurisdiction over the subject matter. We express no opinion on whether a plea of lack of subject-matter jurisdiction constituted a general appearance and, therefore, waives lack of jurisdiction over the person if the court finds it has jurisdiction of the subject matter, since that question is not raised here.
See Crockett v. Crockett,
In Personam Jurisdiction
Appellant argues that the trial court erred in holding that it had no in personam jurisdiction over the appellee under Tex. Fam.Code Ann. § 11.051(1), (3) and (4) (Vernon Supp. 1980), which provide:
In a suit affecting the parent-child relationship, the court may exercise personal jurisdiction over a person on whom service of citation is required or over the person’s personal representative, although the person is not a resident or domiciliary of this state if:
(1) the child is conceived in this state and the person on whom service is required is a parent or an alleged or probable father of the child;
(3) the person on whom service is required has resided with the child in this state; or
(4) notwithstanding Subdivisions (1), (2) or (3) above, there is any basis consistent with the constitutions of this state or the United States for the exercise of the personal jurisdiction.
It is undisputed that appellee falls squarely within the ambit of the language of subdivisions (1) and (3). The only question is whether an exercise of jurisdiction over her offends due process. Citing
Zeisler v. Zeisler,
In the case at bar, Texas was the state of marital domicile. The parties resided in Dallas until their separation and divorce. Their child, which is the subject of this action, was conceived and born here and appellee exercises managing conserva-torship of the child under a Texas divorce decree. Appellee’s custody of her child, as well as appellant’s access to his child, is
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defined by the terms of a Texas decree. These factors constitute sufficient purposeful contacts with the state of Texas so that an exercise of jurisdiction over appellee does not offend due process оf law.
Zeisler v. Zeisler,
Our holding here is supported by the rationale of our opinion in
Zeisler.
Although we expressly did not pass on this question now before us in
Zeisler,
we have now considered the matter and have concluded that the same considerations apply to a conservatorship modification as tо modification of support in cases where as here, the custodial parent and child now reside in another state and personal jurisdiction is asserted on the basis of minimum contacts.
Zeisler
concerned jurisdiction over the person of a nonresident father in a suit to increase child support pаyments. We stated that we saw no reason why an action to enforce a parent’s obligation to support his child should encounter greater obstacles with respect to jurisdiction than an obligation arising from tort or contract,
The minimum contacts test is met if a nonresident defendant performs an intentional act which purposefully avails him of the benefits and protections of the forum state.
Compare McGee v. International Life Insurance Co.,
We also note that Texas has a strong interest in maintaining jurisdiction here. Under the terms of a Texas divorce decree, appellee has acquired the right to deprive appеllant of access to his child for all but 30 hours per month. By moving to Mississippi, appellee restricted appellant’s visitation rights more than was contemplated in the original decree. An exercise of jurisdiction over nonresidents in such a situation decreases the necessity for litigation by encourаging the transient spouse to seek a settlement on changed visitation rights before leaving the state. L. Ratner, Child Custody in a Federal System, 62 Mich.L. Rev. 795, 821 (1964).
In so holding, we expressly disagree with the holding of the Tyler Court of Civil Appeals in
Corliss v. Smith,
The Tyler Court of Civil Appeals also based its holding on the relative convenience of the parties and the witnesses, a balancing of the interests of Texas and Nebraska in maintaining the litigation, the length of absence of a nonresident from the state, and whether Nеbraska would accord full faith and credit to a Texas conservator-ship modification. In our view, none of these factors are germane to the question of in personam jurisdiction under § 11.051.
Appellee argues that the convenience of witnesses and the parties and the health of the child will best be served by litigating conservatorship in Mississippi, citing
Corliss v. Smith,
We also expressly disagree with
Corliss v. Smith's
holding that in ruling on a special appearance the trial court may properly consider whether a Nebraska court would grant full faith and credit to a Texas court’s decree modifying conservatorship. Initially we note that in the case cited in
Corliss, Copple v. Copple,
In
Kovacs v. Brewer,
Subject-Matter Jurisdiction
Appellant next contends that the trial court erred in holding that it had no *398 jurisdiction over the subject matter of this suit. We agree. Thе appropriate statute concerning subject matter jurisdiction is Tex.Fam.Code Ann. § 11.05 (Vernon Supp. 1980), which provides:
(a) Except as provided in Subsections (b), (c), (d), and (e) of this section and Section 17.05 of this code, when a court acquires jurisdiction of a suit affecting the parent-child relationship, that court retains continuing jurisdiction of all matters provided for under this subtitle in connection with the child, and no other court has jurisdiction of a suit affecting the parent-child relationship with regard to that child except on transfer as provided in Section 11.06 or 17.06 of this code. [Emphasis added.]
This statute endows the court entеring the original divorce decree with continuing jurisdiction over suits affecting the parent-child relationship. Section 11.05 was enacted against a background of cases holding that Texas courts had no power to adjudicate conservatorship where the child was neither a resident of Texas nor рresent before the court,
Ex parte Birmingham,
Appellee cites various policy arguments against adjudication of conservator-ship where the child and the managing conservator are nonresidents of Texas. See J. Sampson, Jurisdiction in Divorce and Con-servatorship Suits, 8 Texas Tech L.Rev. 159, 218 (1976). We note that the legislature has limited continuing jurisdiction by passing § 11.052, effective June 13, 1979. Section 11.052 prohibits a court from exercising its continuing jurisdiction to appoint a managing conservator if the managing conservator and the child have been residents of another state for more than six months before the action is filed. Section 11.052 was not in effect, however, when the order dismissing appellant’s suit was rendered, and subject-matter jurisdiction is not so limited under § 11.05. Absent such authority limiting the legislative mandate of § 11.05, we find no basis for imposing an arbitrary six-month limitation on the effect of that section. Consequently, we hold that the trial court erred in concluding that it had no jurisdiction over the subject matter of appellant’s suit.
Reversed and remanded.