In re A.C.S.

• Decision Date: 15 December 2004
• Docket Number: No. 10-03-00392-CV.,10-03-00392-CV.
• Parties: In the Interest of A.C.S. and G.E.S., Children.
• Court: Texas Court of Appeals

157 S.W.3d 9

In the Interest of A.C.S. and G.E.S., Children.

No. 10-03-00392-CV.

Court of Appeals of Texas, Waco.

December 15, 2004.

Robert A. Swearingen, Peterson & Swearingen, College Station, for appellant.

Scott Wesley Smith, Houston, pro se.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

FELIPE REYNA, Justice.

Andrea Gayle Smith appeals an order modifying the child custody provisions of her divorce decree by requiring her children to return to Texas from South Carolina. Because the trial court abused its discretion by determining that the children's return to Texas would be in their best interest, we will reverse and remand.

Background

Andrea and her former husband Scott were divorced in October 2002. The agreed decree designated the Smiths as joint managing conservators of their two daughters but designated Andrea as the person having the exclusive right to determine the children's primary residence. This designation imposed no geographical restriction on the children's residence. The decree did not contain a standard possession order but contained (1) specific possessory provisions in the event the parties resided more than 100 miles apart and (2) a provision requiring the parties to "share equally the travel expenses related to transferring possession of the children" if the children resided in a different state than Scott.

Andrea and the children moved to South Carolina shortly after the decree was signed. Scott filed a motion to modify the child support provisions of the decree in December 2002. Andrea responded with a motion to modify the custody provisions of the decree in April 2003. Scott amended his motion three days later to include a request that the court modify the custody provisions of the decree and in particular that the court impose a requirement that the children reside in Brazos County or an adjoining county.

After a hearing in April 2003, the court referred the parties to mediation. During the mediation, the parties agreed to temporary orders granting Scott more access to the children. However, mediation failed. At the conclusion of a second hearing in August, the court announced that it was partially granting Scott's motion to modify the decree.¹ In particular, the court ordered that the children reside in Texas within a triangular area from Collin County to Bexar County to Galveston County.

After the August hearing, Andrea retained new counsel. Counsel filed a motion to stay the court's decision and a motion to dismiss the case with prejudice because of Scott's failure to comply with a local rule requiring that the prevailing party tender a proposed judgment to the court within thirty days after rendition. At a hearing on these motions, Andrea's counsel raised for the first time the question of whether the trial court had exclusive, continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (the "UCCJEA"). The court concluded that Andrea had waived her right to raise this complaint because she had not raised it sooner. The court signed an order in accordance with its previous oral rendition.

About seven months after signing the modification order and about two months after the appellee's brief was filed in this Court, the trial court signed and filed findings of fact and conclusions of law.

Andrea contends in four issues that the court abused its discretion by granting a modification of the custody provisions of the divorce decree because: (1)(a) Scott failed to file the affidavit required by section 156.102 for a motion to modify the designation of the person entitled to determine the primary residence of the children filed within one year after rendition of the order sought to be modified; and (b) the court failed to make a preliminary finding under the statute that the children's present environment may endanger them or significantly impair their emotional development; (2) the court failed to conduct a preliminary hearing to determine whether it still had continuing, exclusive jurisdiction under the UCCJEA; (3) there has been no material and substantial change of circumstances; and (4) the net effect of the decree will be to award Scott custody of the children (assuming Andrea's noncompliance) without any evidence that this is in the children's best interest.

In a supplemental brief, Andrea addresses the trial court's findings of fact and conclusions of law.² Andrea contends that: (1) there is no evidence or factually insufficient evidence to support certain findings; (2) the findings do not explain or justify the court's failure to comply with section 156.102; (3) the findings do not explain or justify the court's failure to make a preliminary determination regarding its jurisdiction under the UCCJEA; (4) the court abused its discretion by finding that Andrea's and the children's relocation to South Carolina was a material and substantial change of circumstances; and (5) the court abused its discretion by finding that the children's return to Texas would be in their best interest.

The Trial Court's Belated Findings And Conclusions Will Be Considered By This Court Because Andrea Does Not Contend That She Has Been Harmed By Them And She Has Not Requested That The Appeal Be Abated

Andrea made a timely request for findings of fact and conclusions of law. Rule of Civil Procedure 297 requires a trial court to file its findings of fact and conclusions of law within twenty days after a timely request. Andrea also filed a notice of past due findings and conclusions. Nevertheless, the trial court's findings and conclusions are plainly untimely. See TEX.R. CIV. P. 297.

However, the rules of procedure do not expressly prohibit a court from issuing belated findings.³ Silbaugh v. Ramirez, 126 S.W.3d 88, 91 (Tex.App.-Houston [1st Dist.] 2002, no pet.); Jefferson County Drainage Dist. No. 6 v. Lower Neches Valley Auth., 876 S.W.2d 940, 959-60 (Tex.App.-Beaumont 1994, writ denied); Morrison v. Morrison, 713 S.W.2d 377 380 (Tex.App.-Dallas 1986, writ dism'd). If an appellant can show harm from untimely findings, the appeal may be abated so the appellant can request amended or additional findings. Silbaugh, 126 S.W.3d at 91; Jefferson County Drainage Dist., 876 S.W.2d at 960; Morrison, 713 S.W.2d at 380-81.

Here, although Andrea filed objections to the belated findings and a request for amended or additional findings with the trial court, she has not asked this Court to abate the appeal for further hearings on this matter. In addition, she has filed a supplemental brief in response to the court's findings. Because Andrea does not contend that she has been harmed by the belated findings and because she has not requested an abatement, we will give the findings due consideration. See Silbaugh, 126 S.W.3d at 91-92; Jefferson County Drainage Dist., 876 S.W.2d at 959-60; Morrison, 713 S.W.2d at 380-81.

The Trial Court Has Exclusive, Continuing Jurisdiction Under The UCCJEA

Andrea contends in her second issue that the court abused its discretion by failing to hold a preliminary hearing to determine whether Texas retained exclusive, continuing jurisdiction under the UCCJEA to modify the custody provisions of the divorce decree. She contends in her supplemental brief that the court's findings do not explain or justify the court's failure to make a preliminary determination regarding its jurisdiction under the UCCJEA.

Subject Matter Jurisdiction Cannot Be Waived Or Conferred By Agreement Or Estoppel

Scott responds that Andrea waived this contention by failing to raise it until after trial. However, subject matter jurisdiction under the UCCJEA cannot be waived and may be raised for the first time on appeal. See In re Barnes, 127 S.W.3d 843, 846 (Tex.App.-San Antonio 2003, orig. proceeding); In re Jeffries, 979 S.W.2d 429, 435 (Tex.App.-Waco 1998, orig. proceeding); accord Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex.2000).

Because Andrea herself filed a motion to modify, alleging in pertinent part, "[t]his Court has continuing, exclusive jurisdiction of this suit," it could be argued that she made a judicial admission that the trial court has subject matter jurisdiction or is estopped to deny the court's jurisdiction. However, subject matter jurisdiction cannot be conferred by agreement. Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, 649 (1933); J.M. Davidson, Inc. v. Webster, 49 S.W.3d 507, 515 (Tex.App.-Corpus Christi 2001, no pet.); Kanz v. Hood, 17 S.W.3d 311, 318 (Tex.App.-Waco 2000, pet. denied). Nor can it be conferred by estoppel. Wilmer-Hutchins Indep. Sch. Dist. v. Sullivan, 51 S.W.3d 293, 294 (Tex.2001) (per curiam). If subject-matter jurisdiction cannot be conferred by agreement or estoppel, then it cannot be conferred by judicial admission.

The Children Must Have A Significant Connection With Texas Or Substantial Evidence Must Exist In Texas Regarding The Children's Welfare For Texas To Retain Exclusive, Continuing Jurisdiction Under The UCCJEA

Under section 152.202 of the UCCJEA, Texas retains "exclusive continuing jurisdiction" until:

(1) a court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships; or

(2) a court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state.

TEX. FAM.CODE ANN. § 152.202(a) (Vernon 2002). If either a "significant connection" exists or "substantial evidence" is present, then Texas retains jurisdiction. In re Forlenza, 140 S.W.3d 373, 379 (Tex.2004) (orig.proceeding).

Visitation within the state is generally considered as evidence of a significant connection, particularly when the children maintain a...