Hutchings v. Biery, 04-86-00619-CV

• Decision Date: 21 January 1987
• Docket Number: No. 04-86-00619-CV,04-86-00619-CV
• Citation: 723 S.W.2d 347
• Parties: Dennis J. HUTCHINGS, Relator, v. The Honorable Fred BIERY, Respondent.
• Court: Texas Court of Appeals

Page 347

723 S.W.2d 347

Dennis J. HUTCHINGS, Relator, v. The Honorable Fred BIERY, Respondent.

No. 04-86-00619-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 21, 1987.

Joe Villarreal, Jr., San Antonio, for relator.

Mary Ellen Smyth, San Antonio, for respondent.

Before ESQUIVEL, CANTU and REEVES, JJ.

OPINION

ON RELATOR'S PETITION FOR WRIT OF MANDAMUS AND WRIT OF PROHIBITION

PER CURIAM.

Relator Dennis Hutchings has filed this original proceeding seeking a writ of mandamus directing respondent, Judge Fred Biery of the 150th Judicial District Court of Bexar County, Texas, to withdraw a December 12, 1986 order overruling relator's plea to the jurisdiction of the Texas courts, and a writ of prohibition commanding Judge Biery not to exercise jurisdiction over a motion filed by a real party in interest, relator's former wife Jeneal Duke, for clarification and modification of a prior child custody order. We deny the writs of mandamus and prohibition.

Relator and Jeneal Duke were divorced on May 26, 1981 in the 45th Judicial District Court of Bexar County, Texas. The divorce decree appointed relator the managing conservator of the parties' minor child, Scott. Jeneal Duke was named the possessory conservator. The divorce decree further provided that in the event that relator moved from Texas, Jeneal Duke would have visitation rights to Scott during certain holidays in even numbered years, on the first weekend of each month, and for three weeks during the summer. On July 9, 1985, relator and Scott moved to Maryland where they established their residence. Thereafter, a disagreement arose as to Jeneal Duke's summer visitation rights.

On September 12, 1986, Jeneal Duke filed a Motion for Clarification and Modification of Prior Order, Contempt, and Enforcement for Interference with Child Custody. In her motion, she requested that the child custody and visitation portions of the original divorce decree be clarified so as to make clear that she was entitled to three weeks visitation with Scott every summer and not only in the summers of even numbered years. She also requested that the original order be modified to provide that she be granted visitation with Scott during the Thanksgiving holiday in odd years and that respondent would have the right to visitation with Scott during the Thanksgiving holiday of even years. Finally, Jeneal Duke asked the court to find relator in contempt for violating her visitation rights under the prior order, to award her damages under Chapter 36 of the Family Code against relator for interference with her visitation rights, and require relator to post a bond pursuant to section 14.51 of the Family Code to insure compliance with the visitation orders of the court.

Relator filed a special appearance under Rule 120a of the Rules of Civil Procedure, claiming that Texas courts did not have jurisdiction over Jeneal Duke's motion. Following a hearing on November 20, 1986, Judge Biery denied relator's special appearance. An order to that effect was entered on December 12, 1986.

The sole issue before this Court is whether the Texas courts have continuing jurisdiction over a proceeding to modify and enforce the visitation rights granted a Texas resident in a prior decree after the managing conservator and the child have established a new state residence. We hold that under the facts of the present case, the Texas courts do retain continuing jurisdiction.

Continuing jurisdiction in the Texas courts over proceedings affecting the parent-child relationship is provided for in section 11.05 of the Family Code. TEX.FAM.CODE ANN. § 11.05(g) (Vernon 1986). Subsection (g) of that section of the Family Code provides the basis for exercising continuing jurisdiction in the present case. It provides:

Except as provided by Subsection (d) of Section 11.53 of this code, a court may exercise its continuing, exclusive jurisdiction to modify all aspects of its decree, including managing conservatorship, possessory conservatorship, possession of and access to the child and support of the child. A court of this state may not exercise its continuing jurisdiction to modify any part of a decree if the child and all parties have established and continue to maintain their principal residence or home state outside this state. This subsection does not affect the power of the court to enforce and enter a judgment on its decree. [Emphasis added.]

Under section 11.05(g) the continuing and exclusive jurisdiction of a Texas court to modify a prior child custody order continues as long as one of the parents continues to live in Texas. Relator does not dispute the fact that the real party in interest continues to reside in Texas. Under this statute then, jurisdiction vests in the Texas courts over this controversy to the extent permitted by Section 11.53(d) of the Family Code, which provides:

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