In re Vernor

• Decision Date: 26 November 2002
• Docket Number: No. 03-02-00580-CV.,03-02-00580-CV.
• Citation: 94 S.W.3d 201
• Parties: In re Jude L. VERNOR.
• Court: Texas Court of Appeals

94 S.W.3d 201

In re Jude L. VERNOR.

No. 03-02-00580-CV.

Court of Appeals of Texas, Austin.

November 26, 2002.

Order Overruling Rehearing January 13, 2003.

COPYRIGHT MATERIAL OMITTED

Daryl G. Weinman, Morehart and Weinman, Austin, for appellant.

Cynthia Borgfeld Smith, Cynthia Borgfeld Smith, PC, Georgetown, for appellee.

Before Justices KIDD, B.A. SMITH and YEAKEL.

BEA ANN SMITH, Justice.

Relator Jude L. Vernor, an Australian citizen domiciled in Australia, seeks mandamus relief from a temporary order of a county court at law in a paternity and custody action. On September 16, 2002, the court ordered that Ms. Vernor return her seven-year-old son from her parents' home in Australia to Williamson County, where his biological father lives, within eleven days. The court did not order Vernor herself to return, but threatened to name the child's father, Larry Carden (the real-party-in-interest), the primary custodial parent if Ms. Vernor failed to move back to Williamson County with the child. Ms. Vernor alleges that she and the child fled Texas and sought refuge in Australia to escape domestic violence by Mr. Carden. She argues, among other things, that the order was arbitrary and unreasonable because it was impossible to comply with and it violated her constitutional rights and the Texas Family Code.

Ms. Vernor filed this mandamus action and asked for a stay on September 23, 2002. On September 24, this Court stayed the order that the child be returned by September 27 and stayed all proceedings in the county court at law pending resolution of the petition for mandamus relief. The child remains in Australia with his mother and maternal grandparents, where he has been attending school for more than a year. After reviewing the record and the law, this Court will conditionally grant the writ of mandamus.

BACKGROUND

Ms. Vernor once lived, worked, and owned a home in Round Rock. In 1994, she began a romantic relationship with Mr. Carden and a child of this union was born in Williamson County on July 1, 1995. The parents never married. Ms. Vernor has been the child's only caregiver since his birth. Ms. Vernor does not dispute that Mr. Carden is the child's biological father or that he exercised visitation with the child informally. She and Mr. Carden had a sporadic and stormy relationship. In 1995, Mr. Carden filed suit in Williamson County to establish his paternity of the child. On November 13, 1995, temporary orders issued naming Mr. Carden and Ms. Vernor joint managing conservators and restricting the child's domicile to Texas. Mr. Carden abandoned that lawsuit, however, and in 1998 it was dismissed for want of prosecution. Ms. Vernor alleges that Mr. Carden committed acts of domestic violence over the course of their relationship. At some point, Mr. Carden began attending anger-management counseling.

Mr. Carden alleges that Child Protective Services was investigating the removal of the child from Ms. Vernor's home before she disappeared in May 2001. According to Ms. Vernor, Mr. Carden repeatedly made false reports of child neglect and abuse against her. Ms. Vernor testified that the child protective agency determined each allegation was unfounded. She asserts that Mr. Carden's harassment through the false reports to police and the child protective agency increased in frequency until she left Williamson County.

The couple's troubled relationship erupted in a violent episode in April 2001, which the child witnessed. The details are sketchy, but Mr. Carden struck Ms. Vernor and dragged her some distance from her car when she and the child were attempting to flee his threats. At some point, the then six-year-old child tried to physically defend his mother from Mr. Carden's attack. Ms. Vernor sought refuge in a local battered women's shelter. She applied for a protective order against Mr. Carden in Williamson County on May 8, but her request was denied. On May 2 and 8, Mr. Carden's attempts to visit the child at his school were thwarted. Mr. Carden alleges that on May 17, Ms. Vernor withdrew the child from school. Ms. Vernor testified that she transferred her son to another school to protect him from his father; this was done while she and the child were still living at the shelter. Mr. Carden involved the child protective agency in searching for Ms. Vernor and the child.

Ms. Vernor and the child eventually moved to a shelter in Santa Fe, New Mexico. Mr. Carden somehow involved New Mexico police in searching for them. Ms. Vernor, an Australian citizen, and her son flew to Australia to live with her parents on September 10, 2001. It is undisputed that when she left, Ms. Vernor was unaware of any court proceedings involving her or the child, or any custody rights awarded to Mr. Carden.

Williamson County Default Judgment

On June 20, 2001, after Ms. Vernor fled to New Mexico, Mr. Carden filed a second suit in Williamson County, again seeking to establish his paternity and seeking custody of the child. He served Ms. Vernor with citation by publication in Williamson County, but having left Texas in May she was unaware of the suit.¹ On September 10, the same day Ms. Vernor and the child left for Australia, Mr. Carden obtained a default judgment in his paternity and custody suit, which has since been vacated.² The "Final Decree in Paternity Suit" found Mr. Carden to be the biological father of the child, named both parents joint managing conservators, and gave Mr. Carden the right to establish the "primary residence of the child." The decree did not restrict the child's residence to Williamson County or Texas.³ On October 10, Mr. Carden secured a writ of habeas corpus for return of the boy to Williamson County.

The Australian Proceedings

After learning that Ms. Vernor had returned to Australia, Mr. Carden initiated an application for the return of the child under the Convention on the Civil Aspects of International Child Abduction (the "Convention")⁴ in the Family Court of Melbourne, Australia. The Convention is a treaty, signed by both the United States and Australia, establishing legal rights and procedures for the prompt return of children who have been wrongfully removed from one signatory nation or wrongfully retained in another.⁵ The goals of the Convention are (1) to remove any incentive in abducting children across international borders and (2) to ensure that the rights of custody granted under the law of one signatory nation are effectively respected in the other signatory nations. Ms. Vernor was notified of these proceedings in Australia on December 12, 2001; she testified, without contradiction, that this was the first notice she received of the Williamson County paternity and custody suit.

In his Convention application filed in Australia, Mr. Carden alleged that he had been adjudicated the biological father and named a joint managing conservator of the child, citing to temporary orders which also restricted the child's residence to Texas. His application to the Australian court expressly stated:

5. The applicant under the Convention, LARRY JAY CARDEN, father of the child, ... has rights of custody in respect to the child by reason of the following factual and legal circumstances:

. . . .

3. The mother and father were appointed joint managing conservators of the child by order of the District Court at Williamson County, Texas on November 13, 1995.

. . . .

1. The District Court of Williamson County Texas, also ordered that the child not be removed from the physical boundaries of the State of Texas.

2. The applicant father regularly exercised his right of access and possession to the child.

3. On or about 5 September 2001 JUDE RAE VERNOR travelled to Australia with the child without the knowledge or consent of the applicant father LARRY JAY CARDEN.

. . . .

1. The mother's removal of the child to Australia is in breach of the father's rights of custody as defined by Article 5 of the Family Law (Child Abduction Convention) Regulations 1986 and is therefore wrongful within the meaning of Article 3.

Mr. Carden failed to reveal that the temporary order in his 1995 lawsuit, naming him as a joint managing conservator and restricting the child's residence to Texas, had been dismissed in 1998 and was no longer in effect in 2001. We find reprehensible this misrepresentation apparently made to invoke the protections of the Convention.⁶ Mr. Carden also reported to the Australian authorities that Ms. Vernor was a mentally-unbalanced drug abuser who neglected and abused the child.

Unaware of Mr. Carden's misrepresentation, on December 17, 2001, the Australian Family Court ordered that: (1) the Department of Human Services of the State of Victoria "secure the welfare of the child"; (2) the Department investigate the allegations threatening the child's welfare (3) a warrant be issued for the child; (4) Ms. Vernor be restrained from removing the child from Australia or the State of Victoria; (5) Ms. Vernor be restrained from changing the residence of the child; and (6) the child's passport be surrendered to the Family Court. These orders are still in effect.

In response to Mr. Carden's accusations, the child, Ms. Vernor, and Ms. Vernor's parents underwent psychological evaluations and assessments by an Australian psychologist.⁷ At some point, the Australian Family Court abated its action so that the custody issue could be adjudicated in Williamson County, as the Convention provides. See Convention on the Civil Aspects of International Child Abduction, opened for signature Oct. 25, 1980, art. 15, T.I.A.S. No. 11,670, 19 I.L.M. 1501, 1503, 1343 U.N.T.S. 89, reprinted in 51 Fed.Reg. 10,493, 10,499 (1986) (the "Convention") (provision allows country where child taken to request that courts, in country from where child taken, render a decision whether removal of child was "wrongful" within meaning of Convention).

Default Judgment Vacated

After learning of the Williamson County default judgment, Ms....