In re Brilliant

• Decision Date: 20 June 2002
• Docket Number: No. 08-01-00054-CV.,08-01-00054-CV.
• Citation: 86 S.W.3d 680
• Parties: In the Interest of Kaylee Lynn-Marie BRILLIANT, A Child.
• Court: Texas Court of Appeals

86 S.W.3d 680

In the Interest of Kaylee Lynn-Marie BRILLIANT, A Child.

No. 08-01-00054-CV.

Court of Appeals of Texas, El Paso.

June 20, 2002.

COPYRIGHT MATERIAL OMITTED

John P. Mobbs, Beck & Given, El Paso, for appellant.

Keith C. Gorman, El Paso, for appellee.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This appeal centers on the recently adopted Uniform Child Custody Jurisdiction and Enforcement Act. Mother, father, and child are former residents of Massachusetts, all of whom relocated to Texas. When the mother expressed her intent to return to Massachusetts, the father filed suit and obtained a temporary restraining order prohibiting the removal of the child from the jurisdiction of the court. Although she was duly served, the mother left Texas with the child and returned to Massachusetts, later claiming that her re location to Texas was merely a temporary absence. The trial court denied the mother's plea to the jurisdiction and subsequently entered a default judgment naming the father as sole managing conservator. We conclude that Texas has jurisdiction under the UCCJEA, but we reverse the default judgment and remand for a trial on the merits.

FACTUAL SUMMARY

Kaylee Lynn-Marie Brilliant was born in Massachusetts on June 15, 1999. She was conceived when her mother, Kristen Lynn .Fox (Kristen), was a seventeen-year-old high school student. Reginald Brilliant (Regi) is Kaylee's father but he and Kristen have never married. Kristen moved in with Regi in March 1999 and they continued living together until April 16, 2000, when Regi moved to Texas. Regi grew up in El Paso and his family continued to live here. The record reveals that the couple had planned to relocate to El Paso and Regi, an employee of Home Depot, requested a job transfer. When the transfer came through, Regi loaded a U-Haul truck with all of his new family's belongings, except for the clothing Kristen needed to finish the last two months of high school. During their brief separation, Kristen lived with her mother and wrote letters in which she told Regi she was anxious "to start my new life down there with you." As planned, Kristen and Kaylee arrived in El Paso on June 12.

On June 15, 2000, Kristen completed and signed a rental application adding her name to the lease on their apartment. She filled out job applications with Blockbuster and Payless ShoeSource, although neither of these is signed nor dated. Kaylee's immunization records were transferred to an El Paso clinic and Regi discovered that the child's shots had not been kept current. While the record does not indicate when the parties applied for a social security card in Kaylee's name, the Social Security Administration mailed Kaylee's card — postmarked April 1, 2000 — to Regi's father's home in El Paso.

Kristen soon expressed displeasure with Texas. She wrote Regi a letter on July 10, telling him "that it just wasn't working out, she was leaving, she and the baby were going back to Massachusetts." Regi filed suit on July 19 and on July 21, he obtained a temporary restraining order preventing Kristen from removing Kaylee from El Paso County. Kristen was served with the restraining order on July 22 but she did not move out of the couple's apartment until July 24, when her mother arrived in town. Kristen and Kaylee stayed in the motel with Kristen's mother until July 27, when all three of them left El Paso for Massachusetts in violation of the restraining order. Kristen and Kaylee spent a total of forty-five days in Texas.

Kristen filed a paternity suit in Massachusetts on August 3. She did not file an answer in the Texas suit but instead filed a plea to the jurisdiction on August 7. On August 16, she filed an amended plea to the jurisdiction to which she attached her own affidavit and a certified copy of a letter from the Massachusetts court to the associate judge of the El Paso court. A hearing on the plea proceeded before the associate judge on August 9 and Kristen appealed the adverse ruling to the referring court. The de novo hearing before the Honorable Alfredo Chavez took place on August 18. Kristen did not appear for the hearing. Judge Chavez ultimately denied the plea. On October 26, Kristen, represented by new counsel, urged a motion for new trial and, in the alternative, a motion for reconsideration. Again, Kristen did not appear. In denying the relief requested, the trial court stated:

It's this Court's opinion that Texas had jurisdiction over the case at that time. To grant the new trial and to decline jurisdiction, even on an inconvenient forum basis would be to condone the blatant disregard for court orders by the respondent, which highly disturbs this Court. And I'm not going to do that.

The following day, Regi and his attorney appeared before Judge Chavez. They advised the court that the two attorneys who had represented Kristen had been employed solely for the purpose of pursuing the plea to the jurisdiction and Kristen, having failed to file an answer, was in default. Regi's counsel also represented that she had advised Kristen's attorney following the hearing on the motion for new trial that she intended to pursue a default judgment the next day. Neither counsel nor Kristen appeared. The court found that it had jurisdiction of the cause and of the parties, that all persons entitled to citation were properly cited, that a jury was waived, and that a record was taken. He appointed Regi as sole managing connservator of Kaylee, appointed Kristen as possessory conservator and entered a standard possession order. Child support was fixed at $150 per month. From this order, Kristen brings two issues for review: (1) Texas lacked subject matter jurisdiction to make an initial child custody determination under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA); and (2) the default judgment was improper because Kristen did not receive forty-five days' notice of the trial setting.

STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea by which a party contests the trial court's authority to determine the subject matter of the cause of action. See e.g., state v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied). The petitioner has the burden to allege facts that affirmatively show the trial court has subject matter jurisdiction. See Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A respondent may assert in the plea that another court has exclusive jurisdiction or that the petitioner has made fraudulent allegations for the purpose of conferring jurisdiction. See Michol O'Connor, O'CONNOR'S TEXAS RULES * CIVIL TRIALS 2002, Commentaries 175, 176-77 (2002). Subject matter jurisdiction presents a question of law which we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999). In deciding whether to grant or deny a plea to the jurisdiction, the court need not look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland ISD v. Blue, 34 S.W.3d 547, 555 (Tex.2000). Where the pleadings do not affirmatively demonstrate an absence of jurisdiction, a liberal construction of the pleadings in favor of jurisdiction is appropriate. Continental Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996); Peek v. Equipment Service Co. of San Antonio, 779 S.W.2d 802, 804 (Tex.1989).

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT

In her first issue for review, Kristen contends that the trial court lacked subject matter jurisdiction to make an initial child custody determination. Generally, there are three jurisdictional elements: (1) jurisdiction over the subject matter; (2) jurisdiction over the person or res; and (3) power to render the particular relief awarded. City of El Paso v. Madero Development, 803 S.W.2d 396, 399 (Tex. App.-El Paso 1991, writ denied), cert. denied, 502 U.S. 1073, 112 S.Ct. 970, 117 L.Ed.2d 135 (1992). Subject matter jurisdiction is essential to the authority of a court to decide a case; it is never presumed and cannot be waived. Tex. Ass'n of Business, 852 S.W.2d at 446.

Jurisdiction here is predicated upon the UCCJEA which Texas adopted effective September 1, 1999. The Act was designed to address the "inconsistency of interpretation of the [former] UCCJA and the technicalities of applying the PKPA."¹ McGuire v. McGuire, 18 S.W.3d 801, 806 (Tex.App.-El Paso 2000, no pet.), citing Sampson & Tindall, TEXAS FAMILY CODE ANNOTATED § 152.001, Introductory Comment, p. 410 (1999). The new act prioritizes home state jurisdiction. Sampson & Tindall, TEXAS FAMILY CODE ANNOTATED § 152.001, Commissioners' Official Prefatory Note to UCCJEA p. 464 (2001). The clear purpose of the UCCJEA, like that of the former UCCJA, is to discourage and eliminate child snatching, to avoid jurisdictional competition, to avoid continued relitigation of custody decisions, and to promote cooperation between the states to ensure that a custody decision is rendered in the state that can better determine the best interest of the child.

Home State

"Home state" is defined in the Act:

(7) `Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent. A period of temporary absence of a parent or a person acting as a parent is part of the period.

TEX.FAM.CODE ANN. § 152.102(7)(Vernon Supp.2002). In turn, "commencement" as used in the definition "means the filing of the first pleading in a proceeding." TEX. FAM.CODE ANN. § 152.102(5). Commentary suggests that although the definition of "home...