Beaber v. Beaber

• Decision Date: 04 June 1998
• Docket Number: No. 14-97-01259-CV,14-97-01259-CV
• Citation: 971 S.W.2d 127
• Parties: Daniel Edward BEABER, Appellant, v. Susan Letner BEABER, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 127

971 S.W.2d 127

Daniel Edward BEABER, Appellant, v. Susan Letner BEABER, Appellee.

No. 14-97-01259-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 4, 1998.

Rehearing Overruled July 9, 1998.

Logene L. Foster, Sugar Land, for appellants.

Daniel Jake Lemkuil, Houston, for appellees.

Before MURPHY, C.J., and HUDSON and DRAUGHN, ^*JJ.

OPINION

MURPHY, Chief Justice.

This is an appeal of the trial court's dismissal for want of jurisdiction of a motion to modify in a suit affecting the parent-child relationship. In April 1997, appellant filed the motion to modify, asking the court to grant him primary possession of the child and the right to establish the child's domicile. The appellee filed a plea to the jurisdiction of the trial court, alleging the court was without subject matter jurisdiction to make the requested modifications. The trial court granted appellee's plea and the appellant appealed. We reverse and remand the case for a determination on the merits of appellant's motion.

Discussion

The trial court entered a decree of divorce between appellant and appellee in 1991 and appointed them joint managing conservators of their only child. The appellee was designated as the party with primary possession of the child with the sole legal right to determine the residence of the child. At the time appellant filed his motion to modify in the suit affecting the parent-child relationship, the child had been residing in Colorado for one and a half years. Appellant, a resident of Texas, did not contest the fact that Colorado was now the child's "home state," ¹ but argued the requested modifications were not a "custody" modification which would divest Texas courts of jurisdiction.

Appellant argues the trial court retains jurisdiction, under Texas law, to modify the primary possession and the right to establish the domicile of a child even though the child resides in a new home state. He asserts that by requesting changes in the primary possession and right to establish the domicile of the child he was only requesting a modification of "visitation"--defined as "possession of or access to a child." See TEX. FAM.CODE ANN. § 152.002(11) (Vernon 1996).

Appellant is correct in asserting the trial court possesses continuing jurisdiction to address modifications of the "possession of and access to" the child. See Welborn-Hosler v. Hosler, 870 S.W.2d 323, 327 (Tex.App.--Houston [14th Dist.] 1994, no writ); Hemingway v. Robertson, 778 S.W.2d 199, 201-02 (Tex.App.--Houston [1st Dist.] 1989, no writ). The trial court obtained continuing, exclusive jurisdiction as to the suit affecting the parent-child relationship when it entered the final order incident to the divorce decree. See TEX. FAM.CODE ANN. § 155.001(a) (Vernon 1996); Brines v. McIlhaney, 596 S.W.2d 519, 523 (Tex.1980). Section 155.003 of the Family Code sets out the trial court's authority to exercise its continuing jurisdiction:

§ 155.003. Exercise of Continuing, Exclusive Jurisdiction

(a) Except as otherwise provided by this section, a court with continuing, exclusive jurisdiction may exercise its jurisdiction to modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to the child, and support of the child.

(b) A court of this state may not exercise its continuing, exclusive jurisdiction to modify managing conservatorship if:

(1) the child's home state is other than this state; or (2) modification is precluded by Chapter 152.

(c) A court of this state may not exercise its continuing, exclusive jurisdiction to modify possessory conservatorship or possession of or access to a child if:

(1) the child's home state is other than this state and all parties have established and continue to maintain their principal residence outside this state; or

(2) each individual party has filed written consent with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction of the suit.

TEX. FAM.CODE ANN. § 155.003(a)-(c) (Vernon 1996) (emphasis added). The statute clearly distinguishes the concepts of managing conservatorship and "possession of or access to a child." See Welborn-Hosler v. Hosler, 870 S.W.2d at 327-28. Compare TEX. FAM.CODE ANN. § 152.002(2) (Vernon 1996) (defining "custody"), with TEX. FAM.CODE ANN. § 152.002(11) (defining "visitation").

The record demonstrates that neither of the conditions limiting the trial court's continuing, exclusive jurisdiction on the issues of possession of and access to the child applies. See TEX. FAM.CODE ANN. § 155.003(c). Thus, we must determine whether the appellant's request for the trial court to grant him primary possession and the right to establish the child's domicile is a proceeding to modify possession of or access to the child. As to the appellant's request for primary possession of the child, we believe the plain meaning of the statute gives the trial court jurisdiction to address appellant's requested modification. See TEX. FAM.CODE ANN. § 155.003(a); see also Welborn-Hosler v. Hosler, 870 S.W.2d at 324, 327-28 (holding Texas court had jurisdiction to modify parent's visitation rights to the standard possession for parents living more than 100 miles apart).

We believe appellant's request for the right to establish the child's domicile also falls under the statutory rubric of "possession of or access to" the child. ² The Family Code clearly delineates the right to determine a child's domicile as a lesser right of a joint managing conservatorship. See TEX. FAM.CODE ANN. §§ 153.071, 153.133, 153.136 (Vernon 1996). Thus, in modifying the right to establish the child's domicile, and like a modification in which parent has primary possession, the court would not be modifying the managing conservatorship because both parents retain their status as joint managing conservators of the child. See TEX. FAM.CODE ANN. § 153.073 (Vernon 1996). Moreover, the right to establish the child's domicile appears to be inherently incident to the primary possession of a child where both parents are managing conservators. Cf. TEX. FAM.CODE ANN. § 155.137 (Vernon 1996) (providing "[t]he standard possession order constitutes a presumptive minimum amount of time for possession of a child by a parent named as a joint managing conservator who is not awarded the primary physical residence of the child in a suit").

Appellee contends the Parental Kidnapping Prevention Act of 1980 ("PKPA"), 28 U.S.C. § 1738A, which takes precedence over state law when two states have concurrent jurisdiction over a child's status, see In the Interest of S.A.V., 837 S.W.2d 80, 87-88 (Tex.1992), removes the Texas trial court's jurisdiction over the proceeding. The PKPA however, actually supports appellant's assertion of jurisdiction in the trial court. The act provides, in pertinent part

(d) The jurisdiction of a court of a State which has made a child custody determination consistently with the provisions of this section continues as long as the requirement of subsection (c)(1) of this section continues to be met and such State remains the residence of the child or of any contestant.

28 U.S.C. § 1738A(d) (emphasis added). It was uncontested that appellant remained a resident of Texas, where a prior custody determination consistent with the PKPA had been entered. Subsection (c)(1) of the act sets out the requirement that the trial court have jurisdiction under the law of the state where the court sits. See id. at 1738A(c)(1). Thus, under the PKPA, the trial court has jurisdiction to address appellant's motion to modify because Texas law grants such jurisdiction, as demonstrated in our foregoing analysis, to address the motion. ³

Therefore, we believe the trial court committed a clear abuse of discretion when it dismissed appellant's motion to modify in the suit affecting the parent-child relationship for want of jurisdiction. See Coots v. Leonard, 959 S.W.2d 299, 301 (Tex.App.--El Paso 1997, no writ). We reverse the trial court's decision and remand the case for a determination on the merits of appellant's motion.

* The Honorable Joe L. Draughn sitting by assignment.

1 "Home state" is defined by the Uniform Child Custody Jurisdiction Act ("UCCJA"), enacted as chapter 152 of the...