Creavin v. Moloney, 13-88-267-CV

• Decision Date: 08 June 1989
• Docket Number: No. 13-88-267-CV,13-88-267-CV
• Citation: 773 S.W.2d 698
• Parties: Fidelma M. CREAVIN, Appellant, v. Thomas M. MOLONEY, Appellee.
• Court: Texas Court of Appeals

Page 698

773 S.W.2d 698

Fidelma M. CREAVIN, Appellant, v. Thomas M. MOLONEY, Appellee.

No. 13-88-267-CV.

Court of Appeals of Texas Corpus Christi.

June 8, 1989.

Rehearing Denied July 7, 1989.

William A. Dudley, Edwards & Perry, Corpus Christi, for appellant.

Janis Graham Jack, Law Office of Janis Graham Jack, Corpus Christi, for appellee.

Before UTTER, BENAVIDES, and DORSEY, JJ.

OPINION

UTTER, Justice.

Fidelma M. Creavin, appellant, filed an original suit affecting the parent-child relationship against Thomas M. Moloney, appellee, seeking child support, a "confirmation" of appellant as the managing conservator, and attorney's fees. The entire suit, however, was subsequently dismissed by the trial court for lack of jurisdiction.

The parties were married in the Republic of Ireland, a country in which they were both citizens and residents. Their only child was born in 1977 while they were still residing in Ireland. Appellee subsequently immigrated to the United States and joined a family practice residency program in Pennsylvania, where he was later joined by appellant and their child. Approximately three years later, appellant and their child returned to Ireland. Appellee thereafter sought and obtained a decree of divorce in Pennsylvania which terminated the marriage, but which did not refer to or make any determinations regarding either support or custody of the child of the marriage. Appellee has resided in Corpus Christi, Nueces County, Texas since January of 1984, and is currently a resident alien with application for citizenship pending. The child has lived with appellant in Ireland since the parties were divorced.

During the course of the hearings, the following stipulations in the form of judicial admissions were entered by appellant's counsel: (1) that both appellant and the child are residents and citizens of Ireland; (2) that neither appellant nor the child are physically present in the United States, but rather are in Ireland; (3) that the child is not and never has been a Texas resident; and (4) that the parties were divorced in Pennsylvania in 1982 by the decree of divorce attached to her original petition.

Appellee filed a "Special Appearance to Challenge Jurisdiction" under the authority of Tex.R.Civ.P. 120a. During the course of the hearing on that motion, appellee testified that his present residence is in Corpus Christi, Nueces County, Texas. Appellee's counsel thereafter informed the court that he was not challenging either the personal jurisdiction or the service of citation he had received. The court subsequently denied appellee's special appearance requested under Tex.R.Civ.P. 120a. The court then permitted appellee to challenge the subject matter jurisdiction of the trial court. Appellee argued that appellant failed to invoke the court's jurisdiction because she had not complied with Tex.Fam.Code Ann. § 11.59 (Vernon 1986) (information under oath to be submitted to the court). No further rulings were made by the court at that hearing.

On March 25, 1987, the trial court sent the parties a letter which stated, in relevant part:

Counsel:

This is an original suit to have the custodial parent confirmed as managing conservator, and to establish support for the child.

* * * * * *

Respondent has challenged the jurisdeiction [sic] of the Court to hear this matter.

Considering the pleadings, evidence presented at hearing 13 March 1987, and briefs filed, it appears:

Petitioner may bring suit. Family Code Section 11.03(a)(1) and (8).

However, venue does not appear to lie, and another court may have jurisdiction of the "claim." Family Code 11.04, and various subparts.

Further, there does not appear to be any compelling constitutional basis for the Court to exercise its jurisdiction. Family Code 11.051.

Custody is an issue in this cause. The Court has been asked to "confirm" a de facto managing conservatorship. It seems that before the Court can require a parent to pay child support, custody must first be determined. Hence, Family Code 11.51 et seq., are applicable.

Petitioner herein has not pled her cause in accordance with Family Code 11.59.

Finally, if the Court has jurisdiction it may be under Family Code 11.53(a)(4). Pleadings and proof are necessary.

Petitioner may have a reasonable time to replead her cause, per Family Code 11.02, or alternatively, the cause will be dismissed for lack of jurisdiction.

Appellant filed her First Amended Petition on April 1, 1987, wherein she alleged that the "court has jurisdiction to make a child custody determination by initial decree because it is in the best interest of the child that this court assume jurisdiction and [that] no other state would have jurisdiction under prerequisites substantially in accordance with Tex.Fam.Code Ann. § 11.53(a)(1), (2) or (3). No other state has accepted or declined to exercise jurisdiction." Appellant's counsel also signed and filed an affidavit pursuant to Tex.R.Civ.P. 14 in which he attempted to comply with Tex.Fam.Code Ann. § 11.59(a) (Vernon 1986).

Appellee thereafter filed his First Amended Motion to Dismiss for Lack of Jurisdiction. This motion challenged jurisdiction on both grounds that there were no pleadings to show that "Texas had jurisdiction over Pennsylvania" under the Uniform Child Custody Jurisdiction Act, and that appellant had failed to file pleadings in accordance with the trial court's March 25, 1987 instructions. Specifically, appellee complained that appellant had still not filed verified pleadings in accordance with Tex.Fam.Code Ann. § 11.59 (Vernon 1986), and that appellant's counsel did not have personal knowledge of the facts sworn to in his affidavit.

On May 4, 1987, the court held a hearing on appellee's motion to dismiss for want of jurisdiction. Appellant was not personally present, but was represented by counsel. At the beginning of that hearing, appellant's counsel informed the court that he had sent appellant an affidavit for her to sign but that he had not yet received it back in the mail. Appellee subsequently argued that Tex.R.Civ.P. 14 did not give appellant's counsel the authority to sign for his client absent personal knowledge. Appellee then called appellant's counsel to testify regarding whether he had personal knowledge of the facts contained in his affidavit. Appellant's counsel, in effect, testified that he based those statements on appellee's testimony from the previous hearing, information supplied by appellant, and his own independent research regarding the existence of any suit affecting the parent-child relationship in Texas and Pennsylvania. The court thereafter dismissed the entire suit for lack of jurisdiction, ¹ and stated the following:

THE COURT: ... I am of the opinion that custody remains the primary matter that the Court has got to consider before it can get to the matter of support. This, notwithstanding that the Family Code does require that both parties support the child. Again, I think before I can order one parent to pay the other one support, there has got to be custody or conservatorship determination.

I am of the opinion, as I was earlier, I believe specifically on the 25th day of March, 1987 when I wrote counsel a letter outlining my feelings about this case that the Court does not have--it does not have jurisdiction in this case. The petitioner's supporting affidavit, filed along with the First Amended Suit pertaining to the parent/child relationship, is not enough. It does not comply with, in my opinion, Sec. 11.59(a) of the Family Code. Therefore, I am going to dismiss this case for want of jurisdiction.

By six points of error, appellant contends the trial court erred in dismissing her suit affecting the parent-child relationship. Point one generally complains that the trial court erred in dismissing her suit for lack of jurisdiction. Points two through four assert that the trial court erred in compelling her to replead her suit for child support to include a claim for custody, in dismissing her entire suit for lack of jurisdiction, and in concluding that a parent has no duty to support a minor child prior to the appointment of a conservator. Specifically, appellant argues that the designation of conservatorship is not a condition precedent to a cause of action for child support, but rather, that they are mutually exclusive causes of action. Points five and six contend that the trial court erred in applying the Uniform Child Custody Jurisdiction Act (U.C.C.J.A.) to the facts of the case at bar, and in determining that a cause of action for custody was barred in Texas under that Act.

Before reaching the merits of appellant's arguments, we note that although appellant has complained generally on appeal concerning the trial court's failure to file findings of fact and conclusions of law, there is no point of error on this issue in her brief. Appellant, therefore, has waived her right to complain. See Department of Human Resources v. Wininger, 657 S.W.2d 783, 783 (Tex.1983); Cameron v. MacDonell, 659 S.W.2d 911, 912 (Tex.App.--Corpus Christi 1983, no writ). Where findings of fact and conclusions of law are not filed, the judgment of the trial court must be affirmed if it can be upheld on any theory that finds support in the evidence. Point Lookout West, Inc. v. Wharton, 742 S.W.2d 277, 278 (Tex.1987); In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984).

We must first address the issue regarding whether the Pennsylvania court which entered the decree of divorce has continuing, exclusive jurisdiction over all matters affecting the parent-child relationship, including child support and custody.

No proof of Pennsylvania law was introduced or even discussed at the hearings. Moreover, the trial court was never requested to take judicial notice of Pennsylvania law and the record is devoid of any indication that the trial court took judicial notice of those laws on its own motion. Therefore, the Pennsylvania law will be...