Geary v. Peavy, 94-0466

• Decision Date: 22 June 1994
• Docket Number: No. 94-0466,94-0466
• Citation: 878 S.W.2d 602
• Parties: Candice Robinson GEARY, Relator, v. The Honorable John W. PEAVY, Jr., 246th Judicial District Court, Respondent.
• Court: Texas Supreme Court

Page 602

878 S.W.2d 602

Candice Robinson GEARY, Relator, v. The Honorable John W. PEAVY, Jr., 246th Judicial District Court, Respondent.

No. 94-0466.

Supreme Court of Texas.

June 22, 1994.

Pamela E. George, Glenn H. Johnson, Houston, for relator.

Kathleen W. Osman, Stewart W. Gagnon, Terriann Trostle, Houston, for respondent.

PER CURIAM.

In this original mandamus proceeding arising from an interstate child custody dispute, relator challenges the jurisdiction of the Texas courts to adjudicate custody. Because we conclude that the trial court was precluded from exercising jurisdiction, and because under the circumstances of this case relator is entitled to raise this issue by mandamus, we conditionally grant the writ.

Felicia and Natasha Schlaepfer, twins who are now five years old, were orphaned on September 2, 1993, when their father Robert Schlaepfer died. The twins' mother had predeceased Robert. The children resided with their father in Duluth, Minnesota, continuously until his death.

Robert's mother Phyllis Durichek, a long-time Texas resident, stayed with the family in Duluth from April 29, 1993, until her son's death. At that time, she promptly took the children back to Houston to live with her. Although it is unclear exactly when she left Minnesota, Durichek was residing with the children in Houston by September 10, 1993. The children have continued to live with her there since that time.

On September 3, the day after Robert's death, relator Candice Geary obtained an ex parte order from a Minnesota state district court awarding her temporary custody of the children. Although not a family member, Geary had been named guardian of the children in Robert's will, the validity of which is disputed by Durichek. The court set a hearing for a month later, issuing a summons to Durichek. Although the ex parte order was signed September 3 and states that it was rendered "pursuant to Petitioner's Petition," which is likewise dated September 3, none of these documents were file-stamped by the Minnesota clerk until September 14.

On September 10, Durichek, who had returned to Houston with the children, filed a Suit Affecting Parent-Child Relationship (SAPCR) in Houston seeking appointment as sole managing conservator. She did not name Geary in the petition and did not have her served. While Durichek had not yet been served with the Minnesota summons when she filed the SAPCR, she was served on the evening of September 10, although she claims that she never read the papers she received.

The Houston court heard Durichek's SAPCR on September 15. Despite having been served five days earlier, Durichek did not inform the court of the Minnesota proceedings, testifying instead that no other person had a legal relationship with the children. Following a perfunctory hearing, the court named her sole managing conservator, signing a decree that same day.

Meanwhile, armed with her September 3 ex parte custody order, Geary filed a habeas corpus petition in Houston on September 16, seeking possession of the children. After learning of the SAPCR a short time later, Geary also filed a motion to vacate and set aside that decree. On September 30, after consolidating Geary's habeas case with the SAPCR, the Houston court heard evidence on the motion to vacate. Geary presented evidence of the Minnesota proceedings and of the September 10 service on Durichek, and also established that the twins had continuously lived in Minnesota until their father's death on September 2. Geary argued that, under the Uniform Child Custody Jurisdiction Act, Minnesota was the twins' "home state," depriving Texas of custody jurisdiction. The court, apparently rejecting this argument, denied the motion to vacate on October 4, and overruled Geary's motion to reconsider on November 17. Geary did not attempt to appeal from either of those orders.

The Minnesota court subsequently held a hearing on October 18, at which Durichek appeared through counsel. The court affirmed its earlier order awarding Geary temporary custody, basing jurisdiction on its findings that 1) Minnesota was the twins' home state; and 2) the Texas SAPCR decree was not controlling because that court lacked jurisdiction.

Citing this new temporary order, Geary filed an amended habeas corpus petition in Houston on January 18, 1994, which was assigned to the same court hearing the SAPCR. This petition, which raised essentially the same arguments heard earlier, was denied on February 24.

On May 27, 1994, after hearing evidence concerning the children's respective relationships with Geary and Durichek, and their connections to Minnesota, the Minnesota court rendered a final decree awarding custody to Geary.

Geary seeks mandamus relief compelling the district court in Houston to vacate its SAPCR decree and dismiss that proceeding for want of jurisdiction and to grant the amended habeas petition. The court of appeals denied mandamus relief on March 31, 1994, and denied Geary's motion for rehearing on April 21, 1994.

We first address whether Geary is entitled to raise this jurisdictional challenge by mandamus. Generally, mandamus relief is not available where relator has an adequate remedy by ordinary appeal. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). Durichek asks that we apply that rule here to deny relief, contending that Geary could have appealed from the October 4 order denying her motion to vacate the SAPCR decree.

In Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex.1973), we held that void or invalid trial court judgments rendered without jurisdiction could be...