Huffstutlar v. Koons

• Decision Date: 31 May 1990
• Docket Number: No. 05-89-01482-CV,05-89-01482-CV
• Citation: 789 S.W.2d 707
• Parties: Lynette Michelle Voss HUFFSTUTLAR, Relator, v. The Honorable Don KOONS, Judge, 255th Judicial District Court of Dallas County, Texas, Respondent.
• Court: Texas Court of Appeals

Page 707

789 S.W.2d 707

Lynette Michelle Voss HUFFSTUTLAR, Relator, v. The Honorable Don KOONS, Judge, 255th Judicial District Court of Dallas County, Texas, Respondent.

No. 05-89-01482-CV.

Court of Appeals of Texas Dallas.

May 31, 1990.

Roger A. Hansen, Elliott, Churchill & Hansen, Dallas, for relator.

Sam L. Lewis, Dallas, for respondent.

Before the court en banc.

OPINION

WHITHAM, Justice.

Lynette Michelle Voss Huffstutlar seeks a writ of mandamus to compel the Honorable Don Koons, Judge of the 255th Judicial District Court of Dallas County, Texas, to grant her application for writ of habeas corpus and thereby return her child to her. Lynette argues that the 1987 order giving custody of the child to her former husband, Larry Voss, is void and that she is entitled to possession of the child under the 1982 divorce decree which named her managing conservator of the child. Because we conclude that the 1987 order is void, we conditionally grant the writ.

THE FACTS

Lynette and Larry were divorced in the 255th Judicial District Court in 1982. The divorce decree named Lynette managing conservator of one-year-old Kimberly. Shortly thereafter, Lynette and Kimberly moved to Oklahoma where they resided until 1986. According to Lynette, Larry came to Oklahoma on September 26, 1986, and abducted Kimberly. According to Larry, Lynette called him and asked him to take Kimberly because Lynette did not want her any more. On October 8, 1986, Larry filed in the 255th District Court a motion to modify custody, seeking to be named managing conservator. On that same day, Lynette filed child-stealing charges against Larry in Oklahoma; those charges were later dropped.

On October 15, 1986, Lynette received a letter informing her there would be a hearing on the motion to modify on October 16. Lynette appeared at the October 16 hearing, which was conducted by a family court master. Lynette alleges that nothing happened at the hearing; the master's findings show that the parties agreed to a continuance pending a home study of both homes. The master told Lynette that Kimberly was to stay with Larry, and that he would inform her of any further hearings. On December 23, 1986, Lynette took Kimberly back to Oklahoma; she testified at the habeas corpus hearing that since she had heard nothing further from the court concerning the motion to modify, she thought it was all over and she was allowed to take Kimberly. She later moved to Arizona, taking Kimberly with her, without telling Larry where they had gone.

On December 24, 1986, the trial court held a hearing concerning the motion to modify; according to Lynette, the hearing was unscheduled and occurred without notice to her. Lynette did not appear at the hearing. Judge Koons entered an order on January 5, 1987, modifying custody and naming Larry managing conservator. On March 14, 1989, Lynette was arrested in Arizona on a fugitive warrant for interfering with a child custody order. Lynette was returned to Texas and faces pending criminal charges in the 282nd Judicial District Court. Kimberly was returned to Larry. On August 9, 1989, Lynette filed in the 255th Court an application for writ of habeas corpus to recover possession of Kimberly. After a hearing, the trial court denied Lynette's application for writ of habeas corpus. Lynette seeks this writ of mandamus to compel the trial court to grant her application for writ of habeas corpus.

MANDAMUS AS APPROPRIATE REMEDY

Mandamus issues to correct a clear abuse of discretion or the violation of a duty imposed by law when there is no adequate remedy on appeal. Johnson v Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). Section 14.10 of the Texas Family Code provides in pertinent part: "[I]f the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order." TEX.FAM. CODE ANN. § 14.10(a) (Vernon 1986). The writ of habeas corpus should be granted when the relator shows that he or she is entitled to custody of the child by virtue of a valid and existing court order; the relator is entitled to an issuance of the writ immediately upon a showing of his or her right to custody. Saucier v. Pena, 559 S.W.2d 654, 655 (Tex.1977). There is no right to appeal from the denial of a writ of habeas corpus because the denial is not an appealable order. Gray v. Rankin, 594 S.W.2d 409, 409 (Tex.1980); Nydegger v. Breig, 740 S.W.2d 551, 552 (Tex.App.--San Antonio 1987, no writ). Thus, mandamus is the proper remedy to compel enforcement of a relator's right to possession of a child. Saucier, 559 S.W.2d at 656; Lamphere v. Chrisman, 554 S.W.2d 935, 938 (Tex.1977).

Lynette argues that the trial court was required to compel return of Kimberly to her because she is presently entitled to possession by virtue of the 1982 divorce decree. She contends that the 1987 order of modification is wholly void and that the only valid existing order, the 1982 divorce decree, entitles her to possession of the child. She argues that the 1987 order is void for three reasons: 1) the trial court lacked subject-matter jurisdiction; 2) the trial court lacked personal jurisdiction over her; and 3) her due process rights were violated because the order issued without notice to her. Lynette contends that the trial court, in failing to compel the return of her child, violated a duty imposed by law, for which she has no adequate remedy. We conclude that this mandamus proceeding is the appropriate vehicle for complaining of the trial court's denial of the writ of habeas corpus. We conclude further that the trial court lacked subject matter jurisdiction. Therefore, we need not address Lynette's second and third arguments that the 1987 order is void.

Subject Matter Jurisdiction

Before proceeding to the merits of subject matter jurisdiction, we note the rule that when a judgment is attacked collaterally, extrinsic evidence may not be used to establish a lack of jurisdiction. See Crawford v. McDonald, 88 Tex. 626, 631, 33 S.W. 325, 332 (1895); Fender v. Moss, 696 S.W.2d 410, 412 (Tex.App.--Dallas 1985, writ ref'd n.r.e.), and that recitations in the judgment control the rest of the record, so that even though other parts of the record show a lack of jurisdiction, if the judgment recites the contrary, the collateral attack fails. See Pure Oil Co. v. Reece, 124 Tex. 476, 481, 78 S.W.2d 932, 934-35 (Tex.Comm'n App.1935, opinion adopted). This rule, however, does not control in the present case. Instead, the present case is controlled by the rule that when the recitations of the judgment on a particular subject are insufficient affirmatively to show jurisdiction, so long as they do not show affirmatively a lack of jurisdiction, the usual presumption in favor of the judgment prevails. See State Mortgage Corp., 120 Tex. 148, 150-51, 36 S.W.2d 440, 441 (1931); Dowdle v. United States Fid. & Guar. Co., 255 S.W. 388, 389 (Tex.Comm'n App.1923, holding approved). This latter statement and these authorities control since the recitations in the challenged judgment affirmatively show a lack of jurisdiction. We conclude that this affirmative showing of lack of jurisdiction appears from the matters discussed below.

The trial court's order states "[t]his state is the home state of the child the subject of this suit." To reach this conclusion, the trial court states the following as support:

The Court finds that, although the child had been living with the Respondent in the State of Oklahoma for a period of time, that such residence was terminated by the Respondent by voluntarily delivering the child to the Movant for the purpose of returning and having residence in Dallas County, State of Texas, and under the jurisdiction of this Court as being the Court of original jurisdiction.

* * * * * *

That the State of Texas, through the voluntary abandonment of any home state qualification for said child, has become the home state of said child the subject of this suit.

(Emphasis added.) Thus, the trial court bases its determination that Texas is Kimberly's home state upon a "voluntary abandonment of any home state qualification" for Kimberly. Such is not a proper basis for the determination of a home state under Texas law. "Home state" is defined in the Texas Family Code as follows:

"Home state" means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as a parent, for at least six consecutive months, and in the case of a child less than six months old, the state in which the child lived from birth with any of the persons mentioned. Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

TEX.FAM. CODE ANN. § 11.52(5) (Vernon 1986); see also UNIF. CHILD CUSTODY JURISDICTION ACT § 2, 9 U.L.A. 123, 133 (1988). Nowhere in the applicable portions of the Family Code does there appear any basis for determining "home state" by virtue of "abandonment of a prior 'home state.' " Thus, the 1987 order shows affirmatively on its face a lack of jurisdiction. It cannot be disputed that Kimberly had established a "home state" in Oklahoma prior to the institution of the underlying lawsuit. Likewise, it cannot be disputed that Kimberly did not meet the provisions of section 11.52(5) with regard to the State of Texas. Therefore, the State of Texas cannot, as a matter of law, be Kimberly's "home state" for the purposes of section 11.53(a)(1) of the Texas Family Code granting a basis for the assertion of jurisdiction by a Texas court. See Ex parte McDonald, 737 S.W.2d 102, 104 (Tex.App.--Corpus Christi 1987). In light of this, we conclude that the trial court's order which is the subject of this proceeding is void on its face, being entered by ...